State v. Browning

• Decision Date: 23 January 2012
• Docket Number: No. SD 30991.,SD 30991.
• Citation: 357 S.W.3d 229
• Parties: STATE of Missouri, Respondent, v. Kevin T. BROWNING, Appellant.
• Court: Missouri Court of Appeals

357 S.W.3d 229

STATE of Missouri, Respondent,

v.Kevin T. BROWNING, Appellant.

No. SD 30991.

Missouri Court of Appeals, Southern District, Division Two.

Jan. 23, 2012.

Stuart Huffman, Springfield, MO, for Appellant.

Chris Koster, Attorney General and John M. Reeves, Assistant Attorney General, Jefferson City, MO, for Respondent.

WILLIAM W. FRANCIS, JR., Presiding Judge.

Following a jury trial on July 28, 2010, Kevin T. Browning (“Browning”) was convicted on one count of the class C felony of abuse of a child, pursuant to section 568.060,¹ and two counts of the class D felony of invasion of privacy, pursuant to section 565.253. Finding no merit to Browning's claims, we affirm the judgment of the trial court.

Factual and Procedural Background

We recite the relevant evidence in the light most favorable to the verdict. See State v. McDonald, 321 S.W.3d 313, 315 (Mo.App. S.D.2010).

Abuse–of–a–Child Incident

Browning, a school bus driver, drove C.P.² and her brother to and from school. C.P. and her brother were the last to get off the bus on the way home from school. In early 2006, when C.P. was either 16 or 17 years old, she and her brother were the only students left on the bus. C.P. was sitting in the front seat, while her brother was asleep in the back of the bus. Browning told C.P. to show him her “boobies.” C.P. then lifted her shirt, exposing her breasts to Browning. While still driving the bus, Browning turned and used his cell phone to take a photograph and a video of C.P. holding her shirt up exposing her breasts to him. Authorities subsequently discovered both the photograph and the video on Browning's laptop.

Browning admitted to having a cell phone capable of taking both photos and video. Browning admitted taking a picture of C.P. for “disciplinary purposes”; however, he confirmed that he never made a disciplinary report about the matter. Browning denied telling C.P. to show him her breasts and that he ever looked at the photograph and video of C.P.'s breasts, but admitted that he generally forwarded all pictures from his cell phone to his laptop.

Cory Schuster (“Schuster”) testified he was Browning's friend and Browning had also been his school bus driver. According to Schuster, he helped Browning buy his first computer and later helped Browning build a computer. Schuster testified he showed Browning how to perform various functions on the computer because Browning “didn't have any idea how to use it.” Schuster further testified he showed Browning how to transfer data from Browning's cell phone to Browning's computer, but that Schuster usually had to help Browning “retrieve files from anything he happened to have ... [a]n MP3 player or a cellphone [sic] or anything like that.” Schuster testified he saw most of Browning's photos because he had to help Browning “rearrange them,” but never saw any pictures or videos of C.P. on Browning's computer as far as he could remember.

Paul Cordia, an employee with the Missouri State Highway Patrol forensics' unit, testified regarding the photograph and video of C.P. found on Browning's computer. Cordia testified that the photograph and video were probably not taken at the same time as the angle of the camera appeared to be different in each. He also explained that the photograph and video files found on Browning's computer were created on January 8, 2006, and last accessed on April 30, 2006. He noted there was no way to determine the number of times the photograph and video had been accessed between January 8, 2006 and April 30, 2006.

Invasion–of–Privacy Incident

Browning was K.T.'s neighbor. Browning had a DVD collection of over 2000 movies. K.T. and her friend, H.M., occasionally went to Browning's house to borrow movies. During the 2006–2007 school year, when K.T. was 16 years old and H.M. was 14 years old, they both went to Browning's house to borrow movies. That day, they were unaware that Browning had placed a video camera on the floor of his bathroom closet and set it to record. The camera was pointed directly at the toilet, which was immediately across from the closet. After H.M. and K.T. came over that day, they each went to the bathroom within a few minutes of each other. The camera recorded both of them sliding off their pants and underwear, sitting on the toilet, using the bathroom, and then standing up.

K.T. testified that while she did not know exactly when the video was taken, she did not believe Browning was inside his house on the day it was taken. She did not think she called Browning in advance that day, but rather went over to where he was working on a trailer next door and asked him if she and H.M. could borrow some movies. K.T. further testified she did not learn of the video until approximately three years later when a law enforcement officer had K.T. and her mother watch the video.

H.M. testified she could not recall the occasion this incident happened, but she was probably around 14 years of age—2006 or 2007. H.M. testified that K.T. usually would let Browning know when she and K.T. were coming over to borrow DVDs, but did not recall if K.T. did that day. H.M. also did not believe Browning was in the house that day. Browning never told her about the camera in the bathroom.

At trial, K.T. and H.M. viewed the video and both girls identified Browning's bathroom, and identified Browning as the person sitting on the toilet setting up the camera.

Browning did not dispute that the camera used was his, that he set it up, and that it was his bathroom on the video. Browning testified he installed the camera in his bathroom sometime during the 2006–2007 school year on a day he thought some “guys” were coming over to watch movies. Browning testified that he suspected some of the guys were picking out movies, removing them from their containers, and then going into the bathroom and putting them “in their shirt or their pants leg.” Browning stated that was the reason he installed the camera in the bathroom—he was only trying to catch the guys he thought were stealing his DVDs. Browning further testified it was never his intention to videotape K.T. or H.M. going to the bathroom. Browning stated he did not know that K.T. and H.M. were coming over to borrow movies that day.

The jury convicted Browning on all three counts. Browning was sentenced to concurrent terms of seven years on the one count of abuse of a child, and four years' imprisonment on the two counts of invasion of privacy. This appeal followed.

Browning raises four points on appeal.³ Browning's first three points contend the trial court erred because insufficient evidence supported each conviction. We do not address Browning's first three points relied on in the order presented in Browning's brief; rather, in order to remain consistent with the chronology of the events, we begin with the abuse-of-a-child conviction. In point four, Browning asserts section 565.253 is constitutionally void as being vague and overbroad because as written and as applied, the plain meaning of the statute criminalizes routine and everyday conduct.

The primary issues presented for our determination are:

1. Was the evidence sufficient to permit a reasonable juror to find beyond a reasonable doubt that Browning committed the crime of abuse of a child?

2. Was the evidence sufficient to permit a reasonable juror to find beyond a reasonable doubt that Browning acted knowingly in secretly videotaping H.M. and K.T.?

3. Does Browning's claim that section 565.253 is unconstitutionally vague and overbroad, on its face, establish substantial grounds for believing manifest injustice or a miscarriage of justice has occurred?

Point III: Sufficient Evidence for Abuse–of–a–Child Conviction

Browning alleges the trial court erred in overruling Browning's judgment of acquittal as to the abuse-of-a-child conviction at the close of all evidence because there was insufficient evidence to establish guilt beyond a reasonable doubt in that all of the State's evidence was circumstantial and contradictory.

Standard of Review

In reviewing a challenge to the sufficiency of evidence on appeal, this Court must determine whether sufficient evidence permits a reasonable juror to find guilt beyond a reasonable doubt. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). This Court views the evidence and all reasonable inferences therefrom in the light most favorable to the verdict, disregarding any evidence and inferences contrary to the verdict. Id. “Even if the evidence would support two equally valid inferences, only the inference that supports the finding of guilt can be considered.” State v. Latall, 271 S.W.3d 561, 568 (Mo. banc 2008). The reliability, credibility, and weight of witness testimony are for the fact-finder to determine, and it is within the fact-finder's province to believe all, some, or none of the witness' testimony in arriving at its decision. State v. Cannafax, 344 S.W.3d 279, 284 (Mo.App. S.D.2011). “This same standard of review applies when reviewing a motion for a judgment of acquittal.” State v. Botts, 151 S.W.3d 372, 375 (Mo.App. W.D.2004).

Analysis

A person commits the crime of abuse of a child if such person “[p]hotographs or films a child less than eighteen years old engaging in a prohibited sexual act ....” § 568.060.1(2). As used in section 568.060, “prohibited sexual act” includes “nudity, if such nudity is to be depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction.” § 568.060.2.

In support, Browning merely points to the fact that he denied the claims that C.P. made against him, and noted that Schuster “did not see any naked pictures of C.P. on [his] computer,” and that “[i]f Browning knew he had naked or semi-naked pictures of C.P., common sense dictates he would not allow [Schuster] to have access to his computer.” Browning's argument, however, ignores our standard of review, which requires this Court to disregard any evidence and...