State v. Dean

• Decision Date: 20 November 2012
• Docket Number: No. SD 31563.,SD 31563.
• Citation: 382 S.W.3d 218
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Gary S. DEAN, Defendant–Appellant.
• Court: Missouri Court of Appeals

382 S.W.3d 218

STATE of Missouri, Plaintiff–Respondent,

v.Gary S. DEAN, Defendant–Appellant.

No. SD 31563.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 25, 2012.

Motion for Rehearing and or Transfer Denied Oct. 17, 2012.

Application for Transfer Denied Nov. 20, 2012.

Craig A. Johnston, Columbia, MO, for Appellant.

Chris Koster, Atty. Gen., Jessica P. Meredith, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

JEFFREY W. BATES, Judge.

Following a bench trial, Gary Dean (Defendant) was convicted of one count of possessing child pornography, a class D felony. See § 573.037. ¹ He presents two points on appeal. In Point I, he contends the evidence was insufficient to support his conviction because the photographs admitted in evidence did not depict “sexual conduct” as defined in § 573.010(17). In Point II, he contends the evidence was insufficient to support his conviction because the photographs admitted in evidence did not depict a real child under the age of 14. Finding no merit in these points, we affirm Defendant's conviction.

On appeal, we accept as true the evidence and reasonable inferences derived therefrom that are favorable to the judgment. State v. McQuary, 173 S.W.3d 663, 667 (Mo.App.2005). We disregard all unfavorable evidence and inferences. Id. The following factual summary has been prepared with those principles in mind.

On December 1, 2006, Officer Tony D'Andrea, accompanied by Officer Andrew Manzel, responded to a complaint about activity at Defendant's apartment complex. When the officers arrived there, Officer D'Andrea spoke to Defendant about reports of minor children coming from and going into the apartment. Defendant was the only one home at the time and said that “his roommate had numerous nieces and nephews that held parties at the apartment.”

The officers then requested permission to search Defendant's apartment for child pornography, and Defendant consented in writing. During the search, officers found a cardboard box on the floor of the closet in Defendant's room. When Officer D'Andrea lifted the box lid, Defendant said, “You found my porn.” The box contained two large books, one of which appeared to be about astronomy. After opening this book, however, Officer D'Andrea observed what he believed were images of child pornography. The officers placed Defendant under arrest. The astronomy book was stored by the Marionville police department in its evidence locker.

In December 2006, Defendant was charged by information with one count of possessing child pornography in violation of § 573.037. The information alleged, inter alia, that Defendant “knowing of its content and character possessed obscene material consisting of a digital image of a nude female child in such a pose that the genitals of the child is [sic] visible, and the person in the photograph is less than fourteen years of age.” Prior to trial, Defendant's attorney was given the opportunity to inspect the astronomy book at the Marionville police station.

At trial, Officer D'Andrea was called as the State's only witness. He testified that, during his examination of the astronomy book, he observed two pictures showing female children in sexually suggestive poses that showed their genitals. The astronomy book was marked as State's Exhibit 2. Using a purple tab, Officer D'Andrea marked one page of Exhibit 2 that showed nude, minor female children in sexually suggestive poses. Officer D'Andrea identified three pictures on this page that troubled him. He marked those pictures with an A, B and C. The witness opined that the three girls in those pictures were under the age of 14.

The marked page of Exhibit 2 contained three pictures of unclothed minor children. Picture A depicted a diminutive, dark-haired girl who was standing with her back toward the camera. She wore only a swimsuit bottom that was pulled down to just below her buttocks. Her legs were spread widely apart, and her back was arched so as to thrust her buttocks toward the camera. Although the girl's anus and genitals were not exposed, her pose drew attention to that area of her body. Her right hand was placed on her unclothed right buttock. Her upper body was twisted so that she was looking toward the camera. Her chest was bare. Her left hand was wrapped around her stomach, resting just below her very small, exposed right breast. Picture B was directly adjacent to Picture A. Picture B depicted a blonde-haired, nude girl. She was sitting on the floor with her hands resting on the ground behind her. Her feet were on the floor in front of her. Her legs were spread open and bent so that her genital area was fully exposed to the camera. She had no apparent pubic hair, and her breasts were undeveloped. Picture C was directly underneath Pictures A and B. Picture C depicted a nude, dark-haired girl looking toward the camera. Her breasts, which were obscured by her hair, did not appear to be developed. Her genital area was exposed. Exhibit 2 was then offered in evidence. Defendant had no objection, and the exhibit was admitted. The State rested, and Defendant presented no evidence.

During closing argument, the prosecutor identified the marked page on Exhibit 2 as containing the three pictures that formed the basis for Defendant's prosecution. The prosecutor argued that the court's task was to decide whether the pictures were pornographic and whether the girls were under the age of 14. Defense counsel contended that the State had failed to prove beyond a reasonable doubt that the girls were under the age of 14. He argued that each of the three pictures involved “someone over the age of 14 that had their picture taken in a suggestive pose to market and make money.” In rebuttal, the prosecutor argued that the trial court could decide that issue based on the judge's examination of the pictures themselves, as permitted by § 573.050. After closing arguments were concluded, the judge examined the exhibits with counsel present and took the case under advisement.

Four days later, counsel and Defendant appeared before the trial judge, who announced his decision in open court:

The record shows that we had a court-tried case on this last Friday where I took the matter under advisement. The Court did view the three photographs in question which were marked # A, # B and # C in State's Exhibit # 2. Mr. Dean, while it never gives me a pleasure to have to do so, I do find that you are guilty with what you are charged with. I do find that it would be extremely—just out of the element of reasonable probability that the three pictures depicted any girl older than 14, in fact, all of them appear to be under 14. The Court therefore is finding you guilty in the case.

In the written judgment, the trial court explained in more detail its reasons for finding Defendant guilty:

The court has viewed the [three] photos in question in the presence of counsel. The court has no reasonable doubt that the photos depict young females who are less than fourteen years of age in nude, or near nude poses. (The “material”) The court finds that, applying contemporary community standards the predominant appeal of the material is to prurient interest in sex; that the average person applying community standards, would find that the material depicts sexual conduct in a patently offensive manner; and a reasonable person would find that the material lacks serious literary, artistic, political or scientific value. The court further finds that the material depicts sexual conduct of a participant who is under the age of fourteen years. The court finds that on December 1, 2006, in Lawrence County, Missouri, defendant, knowing of its content and character, possessed obscene material that has a child as a participant.

The court originally suspended imposition of sentence and placed Defendant on probation for five years. Thereafter, Defendant violated the terms of his probation and was sentenced to three years imprisonment. This appeal followed. Additional facts necessary to the disposition of the case are included below as we address Defendant's two points on appeal.

Point I

In Defendant's first point, he contends the evidence was insufficient to prove his conviction because the State did not prove beyond a reasonable doubt that Defendant possessed child pornography as defined in § 573.010. Defendant argues that he did not possess obscene material because the three photographs in Exhibit 2 did not depict or describe “sexual conduct” as defined in § 573.010(17). To the extent this assertion of error is unpreserved, Defendant seeks plain error review.

In a court-tried criminal case, the court's findings have the force and effect of a jury verdict. Rule 27.01(b); State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002). Accordingly, the standard used to review the sufficiency of the evidence in a court-tried and a jury-tried criminal case is the same. State v. Fraga, 189 S.W.3d 585, 586 (Mo.App.2006). The function of the reviewing court is not to reweigh the evidence, but only to determine whether the judgment is supported by sufficient evidence. State v. Burse, 231 S.W.3d 247, 251 (Mo.App.2007). Thus, “the appellate court's role is limited to a determination of whether the state presented sufficient evidence from which a trier of fact could have reasonably found the defendant guilty.” State v. Vandevere, 175 S.W.3d 107, 108 (Mo. banc 2005). This is not an assessment of whether this Court believes that the evidence at trial established guilt beyond a reasonable doubt, but rather a question of whether, in light of the evidence most favorable to the State, any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt. State v. Liberty, 370 S.W.3d 537, 542–43 (Mo. banc 2012). When reviewing a challenge to the sufficiency of the evidence, an appellate court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from...