State v. Blair, 23463.

• Court: Supreme Court of South Dakota
• Citation: 2006 SD 75,721 N.W.2d 55
• Docket Number: No. 23463.,23463.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Cameron Gene BLAIR, Defendant and Appellant.
• Decision Date: 16 August 2006

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721 N.W.2d 55 2006 SD 75 STATE of South Dakota, Plaintiff and Appellee,
v.
Cameron Gene BLAIR, Defendant and Appellant. No. 23463. Supreme Court of South Dakota. Argued October 5, 2005. Reassigned February 6, 2006. Decided August 16, 2006.

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Lawrence E. Long, Attorney General, Gary Campbell, John M. Strohman, Assistant Attorneys General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Timothy J. Rensch, Rensch Law Office, Rapid City, South Dakota, Attorney for defendant and appellant.

GILBERTSON, Chief Justice (on reassignment).

[¶ 1.] For the second time, Cameron Blair appeals his sentences for five counts of filming a minor in a prohibited sexual act as grossly disproportionate. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Cameron Blair (Blair) shared custody of his daughter, who was fourteen years old at the time of the events leading up to Blair's arrest, with his ex-wife. Blair had a long history of allowing his daughter to have her girlfriends spend the night at his home. At these slumber parties, the girls typically used Blair's hot tub after which Blair would insist that the girls shower. Blair also required his daughter to shower several times a day while at his home.

[¶ 3.] On June 13, 2002, Blair's daughter invited four girls to a sleepover at Blair's home. At the time of the sleepover, the girls ranged in age from fourteen

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to fifteen years old. The girls used the hot tub and were required by Blair to shower afterward. Ultimately, the girls became suspicious that Blair was videotaping them while they were in the bathroom.¹

[¶ 4.] Sometime around midnight, Blair took two of the girls, who were fifteen at the time, down to the basement and engaged them in conversation. Blair told the girls that he was a therapist and offered advice and information about life and boys. He eventually shifted the topic to the subject of sex and masturbation. He attempted to get the girls to tell him how often and how they masturbated, and shared with them that he had masturbated that morning while watching a videotape of himself and a former spouse having sex. He also shared detailed stories about his past sexual experiences. Blair told the girls he liked women with big nipples, and then repeatedly asked them to show him their breasts. At some point in the conversation, Blair pulled his gym shorts flat against his body to reveal the outline of his penis and testicles, which he then pointed out and named for the "educational benefit" of the two girls. While he was explaining and pointing out his male anatomy, his penis extended beyond the hem of his shorts and was visible for a minute or more.² During the course of the evening, Blair also rubbed one of the girls on her upper thigh, explaining the "proper" way to excite a man. This "therapy session" lasted for several hours. Several times during the conversation, Blair's daughter attempted to come downstairs to ask what the group was discussing. However, Blair repeatedly sent her back upstairs and directed her to stop interrupting his conversation.

[¶ 5.] Finally, at approximately 6 a.m. the "therapy session" ended when the two girls decided to feign sleep in order to end the conversation. Blair offered to tuck the two girls into bed. He sat down between the two girls on the bed and rubbed their heads "to help them fall asleep faster." As Blair got up from the bed, he grabbed both girls' buttocks over the covers and left the room. The girls then ran to the bathroom and locked themselves inside to change clothes. They left Blair's home and returned to the home of one of the girls, where they reported the events to the girl's mother. When Blair's ex-wife learned what had occurred at the slumber party, she called the police and an investigation was initiated.

[¶ 6.] The investigation originally centered on Blair's conduct on the night of the slumber party. However, a search warrant was issued after Blair's daughter told police she had seen a videotape of a seven-or eight-year-old male foster child placed in Blair's care, in which the child was filmed in the nude. The search of Blair's home revealed a VHS format videotape containing fifty separate instances in which girls as young as age eleven were surreptitiously videotaped by Blair while in the bathroom. The police also discovered that a crack in the wall between the bathroom and the laundry room recently had been patched. The location of the crack was such that it provided visual access to the bathroom and was of sufficient size to permit videotaping.

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[¶ 7.] A Minnehaha County deputy state's attorney showed Blair's daughter and one of her friends still photographs made from the videotape as part of the investigation into Blair's conduct. His daughter identified herself and four of her friends from the still photographs and from the appearance of the victims, clothing, hairstyles and voices captured on the videotape. She was also able to determine that the videotaping occurred at Blair's current and former homes, and the approximate dates when the videotaped images were captured. The other girl also was able to identify herself, other friends, locations, and approximate dates from the still photographs. From these interviews, the deputy state's attorney was able to determine that the girls in the videotape ranged in age from eleven to fourteen, and that over the course of eighteen months, Blair surreptitiously videotaped them.

[¶ 8.] The videotape seized by police contained over ninety-one minutes of images. The first few seconds are a recording of a small portion of a newscast. The tape then transitions to images shot by Blair. Of the ninety-one minutes of videotape shot by Blair, twenty-four minutes were shot while the camera was in a stationary location. Of those twenty-four minutes, eleven minutes are of Blair and an adult woman engaged in sexual activity. The other thirteen minutes are of the children showering, using the toilet, and performing other common everyday functions. However, the balance of the videotape is of an entirely different character.

[¶ 9.] Approximately sixty minutes of the videotape were shot by Blair while manipulating the camera in order to obtain specific footage, angles and content. As the circuit court noted, the content Blair was after included close-up and zoomed in shots of the breasts, nipples, pubic area, and genitalia of Blair's daughter and four of her friends while they were engaging in common everyday functions in the bathroom. By zooming in, manipulating the camera angle around clothing and towels, and at times turning the camera upside down to shoot up between a girl's legs, Blair sought to obtain as much footage as possible of these specific body parts of the five girls. The videotape also included footage of one of the young girls masturbating with a hairbrush.

[¶ 10.] In addition to the footage of the naked bodies of girls ranging in age from eleven to fourteen, a few images were of one or two adult women. There was also a clip of approximately fifty-five seconds in length in which a young pre-adolescent boy is shown naked as he exits the shower and towels off. The camera was manipulated by Blair and zoomed in on the young boy's genitals.

[¶ 11.] Based on the images on the edited videotape, it is obvious that it does not play in the same order in which the images were shot. Rather, each of the fifty instances of videotaping were filmed at a different time across an eighteen month time frame and in two different locations. The footage was then edited and spliced together to produce the VHS videotape containing the ninety-one minutes of images.³ Law enforcement was able to determine that the newer images were filmed in Blair's present home through the crack in the wall, while older images were filmed

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in his previous home through a grate between the bathroom and Blair's bedroom.

[¶ 12.] The police also discovered a computer disk with two images of child pornography. One image was of two small girls approximately five to six years of age, in which one of the girls was touching the other in a sexual manner. The second image appeared to be of a five-year-old girl masturbating the erect penis of an adult male.⁴

[¶ 13.] Based on the images discovered on the videotape, Blair was charged with five counts of filming a minor in a prohibited sexual act in violation of SDCL 22-22-23. Prior to its repeal, SDCL 22-22-23 provided in relevant part:

Any person who causes or knowingly permits the photographing or filming of a minor under the age of sixteen years to engage in a prohibited sexual act or in the simulation of such act is guilty of a Class 4 felony. Any person who photographs or films a minor under the age of sixteen years engaging in a prohibited sexual act or in the simulation of such an act is guilty of a Class 4 felony.

The definition of a prohibited sexual act included "nudity if such sexual act is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction." SDCL 22-22-22 (repealed by S.D. S.L. 2002, ch. 109, § 1). As a Class 4 felony, a conviction under SDCL 22-22-23 was punishable by up to ten years in the state penitentiary. SDCL 22-6-1.

[¶ 14.] A separate criminal file was opened for the child pornography images. Blair was then charged with one count of possession of child pornography in violation of SDCL 22-22-23.1.⁵ Blair pleaded not guilty to all the charges in circuit court. He later changed his plea to guilty to the five charges of filming a minor in a prohibited sexual act and one count of possession of child pornography. In exchange, charges for the other forty-five images of a minor photographed in a prohibited sexual act and one image of child pornography were not brought.

[¶ 15.] At a sentencing hearing conducted on December 4, 2002, one of the victims attempted to testify but was unable to do so due to emotion. Instead, her mother read her...