State v. Anderson
| Decision Date | 20 May 2021 |
| Docket Number | Docket Nos. 46565/ 46566 |
| Citation | 168 Idaho 758,487 P.3d 350 |
| Court | Idaho Supreme Court |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Justin Lee ANDERSON, Defendant-Appellant. |
Eric D. Frederickson, State Appellate Public Defender, Boise, for Appellant. Elizabeth A. Allred argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Kacey L. Jones argued.
This case, arising from the Ada County district court, concerns joinder of charges against a defendant and the admission of evidence under Idaho Rule of Evidence 404(b). Justin Lee Anderson appeals from his convictions for lewd and lascivious conduct with a minor under the age of sixteen, sexual abuse of a child under the age of sixteen, and multiple counts of sexual exploitation of a child. He challenges the district court's denial of his motion to sever, admission of Rule 404(b) evidence against him, and delivery of a jury instruction on deliberation that varied from the standard instruction. We affirm in part and reverse in part.
In May of 2017, a five-year-old child, L.H., disclosed to her family-friend and babysitter that her former stepparent, Justin Anderson, had sexually abused her. L.H.’s mother ("Mother") and Anderson were briefly married and lived together with L.H. from January to late February or early March of 2017. The babysitter immediately reported the suspected abuse to the Department of Health and Welfare ("DHW"). DHW referred the matter to Detective John Lau of the Boise Police Department for investigation. Detective Lau spoke with the babysitter and Mother about L.H.’s disclosure and scheduled a forensic interview for L.H. at St. Luke's hospital with the Children at Risk Evaluation Services ("CARES") program. At CARES, L.H. again made disclosures concerning Anderson and underwent a physical examination for signs of abuse.
While the contents of her first interview with CARES were excluded as inadmissible hearsay, L.H. testified at trial concerning her abuse allegations, which remained largely the same as those in the CARES interview. L.H. testified that Anderson used his hands to touch her "vagina and butt"; that Anderson made her touch his penis with her hands; that Anderson ejaculated on her stomach; that Anderson made her put her lips on his penis; that Anderson showed her pictures of adults and children having sex on his phone and laptop; that Anderson used a back massager to touch her vagina; that Anderson touched "the inside" of her "bum" with his hand; and that Anderson took pictures of her vagina with his phone.
After learning of L.H.’s allegations in the CARES interview, Detective Lau obtained search warrants for Anderson's electronic devices, including his cell phone and laptop computer. However, those warrants were never executed, and the devices never seized, because Detective Lau could not locate Anderson, who was experiencing homelessness and lived in his van.
It appears that Anderson did not have further contact with law enforcement until nearly half a year later, when Boise police officers responded to an incident involving Anderson and a female companion. The female companion and Anderson met in December of 2017 while staying at a homeless shelter and quickly began a romantic relationship. The relationship deteriorated once Anderson started to show the female companion pornographic images on his cell phone, many of which she believed to be of children. She also described Anderson telling her about his sexual fantasies, including his desire to have a "harem" of women with some being as young as ten years old. The female companion testified that Anderson's sexual preference for children was "the younger, the better" and that he referred to the children in the pornographic images he showed her as "littles." Among the images Anderson showed the female companion were some that he claimed to have taken himself, including one of an approximately six-year-old girl he identified as "his ex's daughter."
The female companion was disturbed by the images and grew to fear Anderson. As time went on, the female companion resolved to leave the relationship and shared with her ex-boyfriend that Anderson had shown her child pornography. She also told her friend about the suspected child pornography on Anderson's phone. Then, on December 27, 2017, the female companion broke up with Anderson and began to remove her possessions from Anderson's van with the help of her ex-boyfriend and the friend. This precipitated an argument, which led to Anderson calling 9-1-1. Officers from the Boise Police Department responded to the fracas and questioned individuals at the scene. When officers questioned the friend, he told them that Anderson had child pornography on his cell phone and that it was "something they needed to look into." The friend also told officers that he overheard Anderson tell the female companion that he had "deleted it all." The responding officers searched Anderson's van and seized his phone, flash drives, an external hard drive, and a backpack containing a laptop.
The investigation was referred to Special Victims Unit Detective Tim Brady, who had experience investigating child pornography and sex abuse cases. That night, Detective Brady interviewed the female companion, who told him Anderson had child pornography on his phone. She claimed Anderson had boasted that he had taken pornographic photos of "his ex's daughter." The female companion also described a "calculator application" on Anderson's phone where he stored pornographic images. Detective Brady could not find that application specifically but did discover an application called "SecurePad" on Anderson's phone, which could be used to store encrypted photos or videos. The SecurePad application was password protected but Detective Brady was able to gain access using a password provided by the female companion. The female companion did not know the exact password but provided Detective Brady with two possible passwords. Upon gaining access to SecurePad, Detective Brady discovered multiple files of what appeared to be child pornography. Detective Brady also checked if there were other active investigations into Anderson and learned of Detective Lau's investigation started in May of 2017 concerning L.H.’s allegations of abuse.
As part of Detective Brady's investigation, Anderson's phone, laptop, external hard drive, and flash drives were sent to the Intermountain West Regional Computer Forensic Lab for in-depth forensic examination. That examination yielded tens of thousands of suspected images of child pornography and hundreds of videos on the various devices seized from Anderson. On Anderson's phone, stored amongst nearly two hundred images of suspected child pornography, was a pornographic photograph of L.H. The examination of Anderson's phone also extracted information relating to Anderson's account on Tumblr, a social media website that allows users to chat, share pictures, and blog. Data from Anderson's Tumblr account indicated that he had been searching for child pornography related terms and had downloaded graphic stories detailing the sexual abuse of children. Investigators also found child pornography related search terms in the internet search history on Anderson's phone.
The forensic examination of Anderson's devices coupled with L.H.’s allegations of abuse, led the State to obtain a twenty-one count indictment against Anderson on February 8, 2018. Counts I through III of the indictment concerned Anderson's conduct with L.H. (the "L.H. charges"). Specifically, Anderson was charged with lewd and lascivious conduct for sexually touching L.H., sexual abuse of a child for showing L.H. pictures of adult and child pornography, and sexual exploitation of a child for producing pornographic images of L.H. In count IV, the State charged Anderson with sexual exploitation of a minor for publishing child pornography to the female companion during their relationship (the "publication charge"). This allegation did not specifically identify the image or images Anderson published to the female companion, but she recalled Anderson telling her that one image was of "his ex's daughter" and described an image of L.H. on Anderson's phone. Finally, counts V through XXI of the indictment charged Anderson with sexual exploitation of a child for possessing pornographic images and videos of unidentified children (the "possession charges"). The State did not allege that the images and videos that formed the foundation of the possession charges were specifically related to Anderson's conduct with L.H. Rather, the State indicated at trial that the possession charges were simply a representative sample and that it could have charged any or all of the thousands of images and videos uncovered in the examination of Anderson's devices.
In addition, Detective Brady submitted the suspected child pornography from Anderson's devices to the National Center for Missing and Exploited Children ("NCMEC") for further evaluation. NCMEC is a private, non-profit organization established by Congress that assists child pornography investigations by, among other functions, identifying victims depicted in suspected pornographic images and videos. Sometime after the State filed its first indictment against Anderson, analysts from NCMEC informed the Boise Police that they had discovered seven additional pornographic images of L.H. on Anderson's hard drive stored in a folder with her name.
Subsequently, on May 8, 2018, the State obtained a second indictment against Anderson, charging him with fourteen1 additional counts of sexual exploitation for the images of L.H. discovered on the hard drive following the first indictment. After obtaining the second indictment, the State and Anderson stipulated to the consolidation of the charges in the indictments but Anderson reserved his right "to file a motion to sever the counts in both cas...
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