State v. Donham

• Citation: 24 P.3d 750,29 Kan. App.2d 78
• Decision Date: 11 May 2001
• Docket Number: No. 84,158.,84,158.
• Parties: STATE OF KANSAS, Appellee, v. SCOTTY R. DONHAM, Appellant.
• Court: Court of Appeals of Kansas

29 Kan. App.2d 78

24 P.3d 750

STATE OF KANSAS, Appellee, v. SCOTTY R. DONHAM, Appellant.

No. 84,158.

Court of Appeals of Kansas.

Opinion filed May 11, 2001.

Patrick H. Dunn, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.

Jan Satterfield, county attorney, and Carla J. Stovall, attorney general, for appellee.

Before GERNON, P.J., GREEN and BEIER, JJ.

GREEN, J.:

Scotty R. Donham appeals his convictions of 90 counts of sexual exploitation of a child. On appeal, Donham argues (1) that his convictions are multiplicitous; (2) that he was denied the right to a unanimous jury verdict; (3) that the trial court erred in failing to give the multiple counts jury instruction; (4) that the trial court erred in instructing on the definition of possession; (5) that the trial court created structural error when it instructed solely using the current version of the sexual exploitation of a child statute; (6) that the sexual exploitation of a child statute is facially overbroad in violation of the First Amendment; and (7) that cumulative trial error substantially prejudiced his right to a fair trial. We reverse and remand for a new trial.

After serving a search warrant at Donham's residence on September 25, 1998, the police discovered a computer and floppy disks containing sexually explicit images of children. The police learned about the images from John McCandless, Donham's former roommate. While McCandless was in jail on a probation violation, he told police that Donham had child pornography stored on his computer and floppy disks. According to McCandless, Donham showed him pornographic images on the computer beginning with adult pornography and later more bizarre images including child pornography.

The computer and floppy disks seized from Donham's residence were analyzed by a forensic examiner. The examiner discovered that most of the files were deleted before the computer and floppy disks were seized. However, the examiner was able to forensically access or recreate the deleted images contained on 18 floppy disks. In addition, the examiner was able to determine the dates the images were created (received via Internet Relay Chat), modified (altered or changed in some fashion), and last accessed (viewed or moved to another location). The images were created as early as December 1997 and were accessed as late as September 1998.

Donham was originally charged with 100 counts of sexual exploitation of a child based on 100 sexually explicit images of children stored on 18 floppy disks. The State later amended the complaint, reducing the number of charges to 90 counts of sexual exploitation of a child.

During his jury trial, Donham's theory of defense was that he was not the individual who downloaded and accessed the child pornography. Donham stipulated that the images depicted children under the age of 18. The State presented to the jury 100 sexually explicit images that were stored on 18 floppy disks.

The jury found Donham guilty of 90 counts of sexual exploitation of a child. He was sentenced to 52 months' imprisonment on count one and 32 months' imprisonment on count two, to run consecutive to count one. The sentences for the remaining counts were to be served concurrently with those for the first two convictions.

Multiplicity

Donham first contends that his convictions are multiplicitous because each floppy disk, rather than each image, should constitute one count of sexual exploitation of a child. Donham was convicted of 90 counts of sexual exploitation of a child based on images that were retrieved from 18 floppy disks.

Whether the charges filed against Donham are multiplicitous is a question of law over which this court's scope of review is unlimited. See State v. Thomas, 24 Kan. App.2d 734, 737, 953 P.2d 1043 (1998). Multiplicity involves "the charging of a single offense in several counts of a complaint or information." State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984). "The concern with multiplicity is that it creates the potential for multiple punishments for the same offense, which is prohibited by the double jeopardy clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Bill of Rights." State v. Edwards, 250 Kan. 320, 329, 826 P.2d 1355 (1992).

Kansas appellate courts have not previously addressed multiplicity in the context of convictions of sexual exploitation of a child. Accordingly, this appeal requires the court to construe the meaning of the sexual exploitation of a child statute and determine whether the State may charge a defendant for each sexually explicit image of a child contained on a floppy disk or whether the charges must be based on the number of floppy disks. Interpretation of a statute is a question of law, and this court's review is unlimited. State v. Patterson, 25 Kan. App.2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).

K.S.A. 2000 Supp. 21-3516(a)(2) prohibits the possession of

"any film, photograph, negative, slide, book, magazine or other printed or visual medium or any audio tape recording or any photocopy, video tape, video laser disk, computer hardware, software, floppy disk or any other computer related equipment or computer generated image that contains or incorporates in any manner any film, photograph, negative, photocopy, video tape or video laser disk in which a visual depiction of a child under 18 years of age is shown or heard engaging in sexually explicit conduct ...."

Only one previous case has construed the types of materials prohibited by the Kansas sexual exploitation of a child statute. In State v. Peltier, 249 Kan. 415, 819 P.2d 628 (1991), cert. denied 505 U.S. 1207 (1992), Peltier was convicted of one count of sexual exploitation of a child based on possession of undeveloped photographic film. Eleven of the photographs printed from the film were introduced at trial, presumably because they constituted sexually explicit images of a child. On appeal, the Peltier court rejected the argument that the term "film" as used in the statute referred to a moving picture and not undeveloped still photographic film. 249 Kan. at 429-30. Significantly, although not an issue on appeal, Peltier was convicted of only 1 count of sexual exploitation of a child based on his possession of the roll of film, rather than 11 counts based on the number of sexually explicit exposures contained on the film.

Multiplicity of sexual exploitation of a minor charges was addressed in State v. Valdez, 182 Ariz. App. 165, 894 P.2d 708 (1994). In that case, Valdez delivered a roll of film to a store for development. After the film was processed, a store employee alerted police that the photographs might constitute child pornography, and the photographs were seized before Valdez returned to the store to claim them. Valdez was convicted of, among other offenses, five counts of sexual exploitation of a minor based on five pictures developed from the roll of film. The Valdez court found that possession of one roll of undeveloped film constituted possession of one visual or print medium and since Valdez possessed only one visual or print medium, four of the five convictions of sexual exploitation of a minor were multiplicitous. 182 Ariz. App. at 170. See State v. Huckins, 66 Wash. App. 213, 221, 836 P.2d 230 (1992) ("Possessing a single publication containing [several depictions of child pornography] cannot properly be characterized as a series of several distinct acts. The act of possessing such a publication is a single act.").

Here, the State charged Donham with 90 counts of sexual exploitation of a child based on possession of "photograph[s], electronic image[s], computer hardware, software, floppy disk[s] or computer generated image[s]." However, in considering the six different ways the State alleged that Donham violated K.S.A. 2000 Supp. 21-3516(a)(2), the statute does not support 90 charges. First, the images retrieved from the floppy disks were not photographs because they were not printed onto paper through a photosynthesis process. Second, the sexual exploitation of a child statute does not list possession of electronic images as a means of violating the statute. Third, the images do not constitute computer hardware because the images are not computer equipment or components. In addition, the State did not present evidence at Donham's trial showing that the images were retrieved from computer hardware. Fourth, the images do not constitute software because the images are not programs or procedures associated with a computer system. Fifth, the images do not constitute computer-generated images. The term "computer-generated image" as used in the sexual exploitation of a child statute should be interpreted as encompassing any sexually explicit image of a child that is graphically made or created by using a computer. However, there was no evidence presented at Donham's trial indicating that any of the images retrieved from the floppy disks were graphically made or created by using a computer. Moreover, the evidence presented by the State showed scenes of real children.

The only other way to justify charging Donham with 90 counts of sexual exploitation of a child is to interpret the statute as prohibiting possession of each sexually explicit image of a child stored on or retrieved from a floppy disk. Rules of statutory construction, however, prevent such an interpretation because reading the statute to prohibit possession of each sexually explicit image of a child retrieved from a floppy disk would be rewriting the statute to add a new element. "`The rule of strict construction means that ordinary words are to be given their ordinary meaning. Such a statute should not be read so as to add that which is not readily found therein.' [Citation omitted.]" In re Tax Appeal of Alex R. Masson, Inc., 21 Kan. App.2d 863, 868, 909 P.2d 673 (1995). Moreover, "criminal statutes must be strictly...