State v. Gardner
| Decision Date | 25 June 2021 |
| Docket Number | Docket No. 47242 |
| Court | Idaho Supreme Court |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Edward Lee GARDNER, Defendant-Appellant. |
Phelps & Associates, Spokane, Washington, for appellant. Douglas Phelps argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Andrew Wake argued.
Edward Lee Gardner appeals his conviction and sentence for sexual exploitation of children over the internet. Over the span of a year, the Internet Crimes Against Children Task Force ("ICAC") received downloads of suspected child pornography from an internet protocol ("IP") address associated with Gardner's home. ICAC executed a search warrant and discovered that Gardner was in possession of 771 images and 10 videos of child pornography. The State charged Gardner with eight counts of willfully possessing or accessing sexually exploitative material of a child, and two counts of knowingly distributing sexually exploitative material of a child. Gardner pleaded not guilty and requested a jury trial. After a three-day trial, the jury found Gardner guilty on all 10 counts.
Gardner now asks that his convictions be vacated and that he receive a new trial under several theories: (1) the district court erred in denying his motion for acquittal after determining there was sufficient evidence that the pornographic images he was accused of possessing and distributing were depictions of actual children, as opposed to drawings or virtual depictions of children; (2) the district court violated his due process rights by prohibiting him from presenting certain arguments in closing; and (3) the State committed prosecutorial misconduct that independently or cumulatively constitute reversible error when it (a) failed to redact references to a polygraph examination from an audio recording of Gardner's interview with ICAC detectives, and (b) allegedly violated a district court order by introducing evidence about videos of child pornography that were found on Gardner's computer, but which did not underlie the charges against him.
In May 2016, ICAC began monitoring an IP address associated with Gardner's residence after a number of electronic files of child pornography were downloaded from the IP address by an ICAC computer over a peer-to-peer file-sharing network called BitTorrent. Over the next year, several more files of child pornography were shared from this and another IP address associated with Gardner's residence. Agents then obtained a search warrant for Gardner's home.
On June 22, 2017, ICAC agents stopped Gardner as he drove away from his home, and officers executed the search warrant. When Detective Paul Farina approached Gardner's car, he introduced himself and said, "I'm with [ICAC], and we're here to speak to you about some suspicious activity on the Internet." Farina's microphone was not on at the time, but Gardner allegedly replied, "I don't have child pornography." Farina then turned on his microphone, and Gardner was escorted to Farina's vehicle, where he was interviewed. Simultaneously, ICAC agents searched Gardner's home and seized his computers.
Gardner's interview by Detective Farina and Detective Neil Uhrig lasted approximately 50 minutes. The detectives informed Gardner that over the past year they had received downloads of multiple images of child pornography from IP addresses at Gardner's home. Gardner admitted that he used peer-to-peer file sharing programs such as BitTorrent, but initially denied that law enforcement could have received any child pornography from his IP address. However, as the detectives pressed Gardner about his online activities, Gardner told them he used BitTorrent to "grab [ ] whole swath[s]" of pornography in large batches that sometimes contained child pornography. Gardner said he sorted through the batches to erase the child pornography and he "didn't think it would be illegal if [he] just got rid of it."
Gardner also told the detectives that when searching for pornography he did not "look for children in particular[,]" but admitted that he sought out pornography of "teens mainly. ... 16 to 21, 22[.]" Gardner further admitted to using "15YO" and "14YO" as search terms. While Gardner claimed he used these terms to find non-pornographic material, such as images of girls in bikinis and "nudist stuff," he acknowledged that he used such material for his sexual gratification. A forensic examination of one of Gardner's seized computers later recovered the search terms "13yr" and a term that Detective Uhrig testified is child pornography shorthand for "pre-teen hardcore." Investigators also recovered several other search terms specifically associated with child pornography. Uhrig testified that these included the names of two well-known child pornography series and multiple terms referencing a Ukrainian child pornography "studio" known to have victimized more than 1500 pre-teen girls.
Throughout the interview, the detectives told Gardner one of their goals was to determine if, in addition to possessing and distributing child pornography, he had sexually abused children. Thirteen and a half minutes into the interview, Detective Uhrig told Gardner he and Farina were trying to "make sure you're not some predator running around the streets." At approximately 20 minutes into the interview, detectives reiterated this theme, directly asking Gardner whether he abused children:
About eight minutes later, Farina asked Gardner whether he would be willing to take a polygraph about abusing children:
Shortly after, Farina said:
So – so what we're gonna do ... I'm gonna ... write up a report, and I'm gonna say what kind of guy you are, I'm gonna say what you told me, and I'm gonna say you did the polygraph, and I've got to submit it to the prosecutors for – to see if they want to charge you or not. I don't make that decision. I'm merely a fact finder.
Finally, in the last minutes of the interview, Farina told Gardner he believed Gardner was downplaying the seriousness of possessing and sharing child pornography, and reiterated the correlation between viewing child pornography and abusing children:
Ultimately, the forensic examination of Gardner's computer uncovered 771 still images and 10 videos of child pornography. Significantly, Gardner admitted during the interview with ICAC detectives that any materials found on his computer would be his. He also admitted that he was responsible for sharing the child pornography downloaded by ICAC computers from his IP address:
The State charged Gardner with two counts of distribution of child pornography under Idaho Code section 18-1507(2)(d) for allegedly sharing two still images of child pornography with an ICAC computer. The State also charged Gardner with eight counts of possessing child pornography under Idaho Code section 18-1507(2)(a) for eight still images recovered from his seized computer. All ten images were watermarked with the logo of the Ukrainian producer of child pornography mentioned above.
Prior to trial, the State filed a notice under Idaho Rule of Evidence 404(b) of its intent to offer evidence relating to child pornography other than the images charged, to "include but not be limited to the child pornography downloaded from the defendant when first investigating this case as well as the total number of images found on the defendant's computer and/or other devises [sic]." Gardner never responded to the notice.
In addition, the State and Gardner stipulated that the State would redact references to Gardner taking a polygraph from the recording of Gardner's interview with Detectives Farina and Uhrig. However, the...
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State v. Eastis
... ... that was later superseded, he did not invite the district ... court to deny his motion based on application of that legal ... standard. Because Eastis did not invite the district ... court's action, he did not invite the error. Cf ... State v. Gardner, 169 Idaho 90, 101, 491 P.3d 1193, 1204 ... (2021) (holding that invited error doctrine precluded ... appellant from arguing that curative instruction compounded ... State's error because appellant requested the ... instruction) ... Turning ... ...