Schaffer v. State

• Decision Date: 01 March 2011
• Docket Number: No. 2009–KA–00151–COA.,2009–KA–00151–COA.
• Parties: Justin David SHAFFER a/k/a Justin David Schaffer, Appellantv.STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

72 So.3d 1090

Justin David SHAFFER a/k/a Justin David Schaffer, Appellant

v.STATE of Mississippi, Appellee.

No. 2009–KA–00151–COA.

Court of Appeals of Mississippi.

Sept. 14, 2010.Rehearing Denied March 1, 2011.

Eleanor Johnson Peterson, attorney for appellant.Office of the Attorney General by John R. Henry Jr., attorney for appellee.EN BANC.CARLTON, J., for the court:

¶ 1. A jury convicted Justin David Shaffer of the exploitation of a child by solicitation for the purpose of engaging in sexually explicit conduct under Mississippi Code Annotated section 97–5–33(6) (Rev.2006). The circuit court judge then sentenced Shaffer to serve twenty-five years in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole, and he was ordered to pay a $50,000 fine. On appeal, Shaffer argues that: (1) there was insufficient evidence to convict him of the crime charged because there was no actual minor child involved in Shaffer's conduct; (2) certain Internet chat logs were improperly admitted into evidence at trial because the logs were not properly authenticated; (3) his right to confront witnesses against him was violated because the chat logs were admitted without calling as a witness the person responsible for maintaining the proxy server; (4) the circuit court judge failed to recuse herself despite her bias against Shaffer; and (5) his conduct violates two criminal statutes; thus, he should have been sentenced under the statute providing the lesser punishment.

¶ 2. Upon review, we reverse the conviction for the indicted offense of child exploitation and render a finding of guilt for the offense of attempted child exploitation. See Miss.Code Ann. § 99–19–5 (Rev.2007). While we recognize that the offense of child exploitation and attempted child exploitation carry the same statutory penalties, we remand this case to the sentencing authority, the circuit court, to determine if any reassessment of the sentence is appropriate.

FACTS

¶ 3. On June 29, 2006, Shaffer, a resident of Greene County, Mississippi, entered into an Internet chat room operated by Yahoo! under the username “cowboy39461.” Deanna Doolittle, a twenty-nine-year-old woman living in Grand Junction, Colorado, also entered into the chat room. Doolittle served as a volunteer for the organization Perverted Justice, which seeks to find Internet predators who are looking for minors with whom to have sex. She posed as a thirteen-year-old girl named Chloe living in Byram, Mississippi, and entered the chat room under the username “orlandoluvsme2.”

¶ 4. Shaffer and “Chloe” participated in several Internet chats, several of which contained sexually explicit conversation. They also held a series of phone calls in which other Perverted Justice volunteers posed as “Chloe.” ¹ The two arranged to meet, and “Chloe” gave Shaffer the address of a house in Byram that the Hinds County Sheriff's Department used as a sting house. Shaffer refused to go to the house; instead, he agreed to meet “Chloe” at a nearby church. On July 8, 2006, Shaffer arrived at the church, and officers from the sheriff's department then arrested him. When officers searched Shaffer's vehicle upon his arrest, they found a black bag containing several condoms and a bottle of KY massage oil.

¶ 5. The State charged Shaffer with the exploitation of a child by solicitation for the purposes of sexually explicit conduct, and a jury found Shaffer guilty as charged. The circuit court sentenced him to twenty-five years in the custody of the MDOC without the possibility of parole, and the court ordered him to pay a $50,000 fine. The circuit court then denied Shaffer's post-trial motion for a judgment notwithstanding the verdict or, alternatively, a new trial.

DISCUSSION

I. Whether there was insufficient evidence to convict Shaffer of the exploitation of a child under Mississippi Code Annotated section 97–5–33(6) (Rev.2006) because there was no actual child involved in Shaffer's conduct.

¶ 6. A jury convicted Shaffer of the exploitation of a child under Mississippi Code Annotated section 97–5–33(6), which states:

No person shall, by any means including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with the defendant or any other person for purpose of engaging in sexually explicit conduct.

“Child” is defined as “any individual who has not attained the age of eighteen (18) years.” Miss.Code Ann. § 97–5–31(a) (Rev.2006). Shaffer submits that the circuit court erred in failing to grant his motion for a directed verdict because the State failed to prove that a child was involved in the solicitation, an essential element of the indicted crime. Shaffer asserts that even though he thought he had communicated with “Chloe,” a thirteen-year-old girl, he had actually communicated with Doolittle, a twenty-nine-year-old woman posing as “Chloe.”

¶ 7. The Mississippi Supreme Court has established the standard for reviewing challenges to convictions based on sufficiency of the evidence, stating that:

The sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with the defendant's guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury.

Muscolino v. State, 803 So.2d 1240, 1242–43 (¶ 10) (Miss.Ct.App.2002) (citation omitted). Similarly, when reviewing the denial of a motion for a directed verdict on an objection to the legal sufficiency of the evidence, we examine the evidence in a light most favorable to the State to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). In our examination of the evidence in this case, we found no evidence of a “child” in the solicitation, which is required to prove the indicted offense.² We will now turn to the statutory requirements as applied to the facts of this case.

¶ 8. The State indicted Shaffer in violation of section 97–5–33(6) for the exploitation of a child for purposes of sexually explicit conduct. As stated, the statutory language at the time of Shaffer's 2006 indictment required proof that a child was involved in the solicitation to constitute child exploitation in violation of the indicted statute.³

¶ 9. The statutory elements of the indicted offense are: “No person shall, by any means including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with the defendant or any other person for the purpose of engaging in sexually explicit conduct.” See Miss.Code Ann. § 97–5–33(6). In applying these statutory elements to the indictment in this case, the State bore the burden of proof to show (1) on or between June 29, 2006, through July 9, 2006, Shaffer, willfully and unlawfully, knowingly enticed, induced, persuaded, seduced, solicited, advised, coerced, or ordered a child (2) to meet with him to engage in sexually explicit conduct. The evidence in the record shows Shaffer actually solicited an adult, Doolittle, posing as a thirteen-year-old child.

¶ 10. At the time the State indicted Shaffer in 2006, subsection eight of section 97–5–33 stated: “The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under this section shall not constitute a defense to a prosecution under this section.” Miss.Code Ann. § 97–5–33(8) (Rev.2006). Shaffer acknowledges that this language of subsection eight of section 97–5–33 allows that an undercover operative or law enforcement officer may be involved in the investigation. Shaffer contends, however, that this language fails to relieve the State's burden of proof under subsection six to show a child's involvement in the offense, even though law enforcement may pose as a child or be otherwise involved in the investigation.

¶ 11. We acknowledge that a 2007 amendment indeed later authorized the involvement of law enforcement in investigations and specified that such authorized involvement included posing as a child.⁴ Nonetheless, the State indicted Shaffer prior to the 2007 amendment, and we refrain from retroactively applying any interpretation of the later-amended statute to Shaffer's case. See United States v. Brown, 333 U.S. 18, 25, 68 S.Ct. 376, 92 L.Ed. 442 (1948) (A statute imposing criminal penalties must be “strictly construed” in favor of the accused.); Boatner v. State, 754 So.2d 1184, 1189 (¶ 14) (Miss.2000); see also Commonwealth v. Cauto, 369 Pa.Super. 381, 535 A.2d 602, 606–07 (1987) (Solicitation of sexual abuse does not require criminal behavior by the person being solicited but merely complicity or participation in the commission of a crime.). Thus, in applying section 97–5–33 as codified in 2006 to this case, as to the sufficiency of the evidence to prove the indicted offense of child exploitation, we fail to find any relief for the State's burden to prove evidence of some involvement by a child. However, the record contains more than sufficient evidence proving Shaffer guilty of attempted child exploitation. See United States v. Meek, 366 F.3d 705, 717–20 (9th Cir.2004).⁵

¶ 12. In looking to this state's jurisprudence, this Court has held that “an appellate court may remand a case to the trial court for sentencing on a lesser-included offense where the greater offense was not proved, but the elements of the lesser-included offense were sufficiently met.” Johnson v. State, 52 So.3d 384, 396 (¶ 36) (Miss.Ct.App.2009) (citing Shields v. State, 722 So.2d 584, 585 (¶ 7) (Miss.1998)). Shields further clarifies that this direct-remand rule applies even when the jury received no lesser-included offense...