State v. Foster, s. 57364
| Decision Date | 04 August 1992 |
| Docket Number | 59235,Nos. 57364,s. 57364 |
| Citation | 838 S.W.2d 60 |
| Parties | STATE of Missouri, Respondent, v. Robert H. FOSTER, Appellant. Robert H. FOSTER, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Cheryl Rafert, Clayton, for appellant.
William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.
A jury convicted defendant of five counts of attempting to promote child pornography in the first degree, §§ 573.025, 564.011, RSMo 1986, 1 one count of promoting child pornography in the second degree, § 573.035, and one count of abuse of a child, § 568.060. The court sentenced him to a total of twenty-five years imprisonment.
Defendant appeals his convictions and sentences and also appeals the denial of his Rule 29.15 motion. We affirm.
For clarity and convenience, we first address defendant's challenges that are specifically directed to the pornography charges, then his challenges to the child abuse charge and finally his general challenges.
Defendant argues that the state failed to make a submissible case on each of the charges against him. To determine whether the state made a submissible case, we accept as true all evidence and permissible inferences which support the verdict, reject all contrary evidence and inferences, and determine whether the evidence, so viewed, is sufficient for twelve reasonable people to find the defendant guilty beyond a reasonable doubt. E.g., State v. Sanders, 741 S.W.2d 739, 741 (Mo.App.1987).
Defendant was arrested during the course of a sting operation. A police officer placed an advertisement in the Riverfront Times targeting pedophiles. Defendant responded to the advertisement, and a meeting was arranged. During the meeting, defendant showed the officer a number of slides he had taken of the buttocks and underwear of young girls between the ages of five and nine. In exchange for one of the slides, the officer handed defendant a copy of "Lolita" magazine which contained pictures of explicit child pornography. 2 Defendant photographed several non-consecutive pages of the magazine, but the negatives did not properly develop.
Defendant and the officer next met on the following morning. During this meeting, the officer showed defendant a videotape of five "Lolita" magazines. Defendant told the officer that he could trade the tape for homemade child pornography from Mr. Thomas Knaeble (Knaeble), a friend of defendant's. Defendant also asked the officer if he had brought more magazines; it was his intention to reproduce the items and take them to Knaeble to trade for other child pornography.
Over the next two weeks, defendant phoned the officer a number of times "to get the items [the officer] had ..., reproduce them, [and] trade them to Mr. Knaeble for items in his possession." The two met again, this time in the officer's unmarked car. During the meeting, the officer gave defendant several issues of the "Lolita" magazine and the pornographic videotape. Defendant told the officer he intended to exchange these items with Knaeble for Knaeble's homemade child pornography. Then, just as defendant got out of the car carrying the pornographic material, he was arrested by other police officers surveilling him.
Submissibility: Promoting Child Pornography, First Degree § 573.025
"Child pornography" is "any material or performance depicting sexual conduct sexual contact, or a sexual performance ...; provided, that it shall not include material which is not the visual reproduction of a live event ". § 573.010(1) (emphasis added). "Material", as used in this statute, is "anything printed or written, or any picture, drawing, photograph, motion picture film, or pictorial representation ... or any mechanical, chemical, or electrical reproduction". § 573.010(5). A person commits the crime of promoting child pornography in the first degree, "if, knowing its content and character, [the person] photographs, films, videotapes, produces, publishes or otherwise creates child pornography, or knowingly causes another to do so." § 573.025.1.
Defendant points out that he photographed photographs, and it was the latter photographs which were the source of the child pornography charges. His photographing of photographs, he argues, was "not the visual reproduction of a live event," and, therefore, his photographing fit within the exception to the definition of "child pornography". § 573.010(1). This interpretation is consistent with the statutory scheme, he argues, because the less serious charge of promoting child pornography in the second degree, § 573.035, is focused on distributors, and, therefore, the first degree offense, § 573.025, must be focused on those directly involved with the initial creation of the child pornography.
Defendant's interpretation of the statutory definition of "child pornography" and its statutory prohibition is strained, at best. Nowhere in the statutory language is there any indication that the prohibited "photographs, films" and the like must be originals; photographs of photographs which were made of "live events" are also visual reproductions of a live event. Moreover, the prohibition against "creating" child pornography does not limit the prohibition to originals. "Create" means to bring into existence or to invest with a new form. Webster's Third New Int'l. Dictionary, (1966). And, "produce" is a statutory equivalent to create. It means "to bring forward ...; offer to view or notice." Id. Defendant attempted to "create" or "produce" child pornography.
Furthermore, defendant's interpretation would allow the clever pornographer to avoid prosecution for the promotion of child pornography in the first degree by simply photographing the original photograph, destroying the original and reproducing the photograph of the original. Finally, one of the purposes of the child pornography statutes is to protect children from exploitation. Defendant's interpretation destroys the ability to effectuate that purpose.
There is no reason to strain the limits of common parlance or legal jargon. Had the General Assembly intended to limit "visual reproduction of a live event," § 573.010(1), to the original reproduction, it would have so stated. In short, the statutory language prohibits any visual reproduction of a live event.
(1) ...
(2) Buys, procures or possesses child pornography with the purpose to furnish it to others.
Defendant makes the bald statement that "there was no evidence that [he] intended to furnish the materials to another."
This conclusion is contradicted by the record. The record clearly shows that defendant intended to trade with Knaeble the videotape of child pornography defendant received from the officer. Defendant expected to get different items of child pornography in exchange from Knaeble. 3
Defendant contends the state failed to prove he was not entrapped. We disagree.
A person is entrapped only if the law enforcement officer or his agent "solicits, encourages or otherwise induces [that] person to engage in conduct when he was not ready and willing to engage in such conduct." § 562.066.2; e.g., State v. Jackson, 731 S.W.2d 348, 349 (Mo.App.1987). To determine whether a violation of this statute has occurred, we use the subjective test of entrapment rather than the objective. State v. Willis, 662 S.W.2d 252, 254 (Mo. banc 1983). The former focuses on the "origin of intent"; the latter focuses on whether the officer's activity "should be condoned or rejected." Id. at 254. Under the subjective test, the basic question is causation--whether the person's criminal conduct was caused by the creative activity of the officer or by the person's own predisposition. Id.
The defendant has the initial burden to show, by substantial evidence, both the officer's inducement and his own lack of willingness to engage in the criminal conduct. Id. at 255; State v. Jackson, supra, at 349; see, e.g., State v. Coffman, 647 S.W.2d 849, 852 (Mo.App.1983). To meet this burden, the evidence must be viewed in the light most favorable to the defendant, State v. Taylor, 375 S.W.2d 58, 59 (Mo.1964), and the defendant may use evidence adduced in the state's case. See, State v. Willis, supra, 662 S.W.2d at 255. Once defendant meets this burden, the state must prove lack of entrapment beyond a reasonable doubt. Id.
The facts here do not constitute substantial evidence that defendant was induced to promote child pornography and that he lacked the predisposition to commit it. The undercover officer did place an advertisement in the Riverfront Times in an attempt to attract pedophiles the police hoped to arrest through a sting operation. Defendant was known to the police to be a pedophile. However, he was not a specific target of this sting operation. It was hoped that defendant's acquaintance, Knaeble, would be apprehended during the course of this sting operation.
Defendant, on his own initiative, responded to this advertisement by letter. In his letter, defendant, though as yet unsolicited, offered to trade slides with the party placing the advertisement. It was in response to defendant's letter that the officer initiated the first phone call to defendant and suggested they meet for a drink.
During their first face to face meeting, defendant was the first to produce slides showing young girls from five to nine in various stages of undress. It was only after defendant produced these questionable slides that the officer produced a copy of the Lolita magazine...
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