State v. Liberty

• Decision Date: 29 May 2012
• Docket Number: No. SC 91821.,SC 91821.
• Parties: STATE of Missouri, Respondent, v. David Delaine LIBERTY, Appellant.
• Court: Missouri Supreme Court

370 S.W.3d 537

STATE of Missouri, Respondent,
v.
David Delaine LIBERTY, Appellant.

No. SC 91821.

Supreme Court of Missouri,
En Banc.

May 29, 2012.

[370 S.W.3d 540]

Frederick J. Ernst, Public Defender's Office, Kansas City, for Liberty.

Daniel N. McPherson, Attorney General's Office, Jefferson City, for State.

LAURA DENVIR STITH, Judge.

David Liberty appeals his conviction of one felony count of first-degree promoting child pornography and eight felony counts of first-degree possession of child pornography. Mr. Liberty alleges that the evidence the State presented was insufficient to convict him of promoting child pornography because the Internet post on which it was based failed to describe “sexual conduct” as required by section 573.025.1 RSMo 2000. He further contends that the evidence was insufficient to convict him of eight counts of possession of child pornography because the images giving rise to six of the charges also do not depict “sexual conduct” as required by section 573.037 RSMo Supp.2007 and, even if they do, the imposition of eight separate sentences for one instance of possession violated his constitutional protections against double jeopardy, as section 573.037 does not unambiguously permit separate prosecutions for each image a defendant simultaneously possessed.

This Court affirms Mr. Liberty's conviction for promoting child pornography because, as explained below, the State's evidence was sufficient to support the verdict that the Internet post on which the charge was based included material proscribed by section 573.025.1.

[370 S.W.3d 541]

As to Mr. Liberty's eight convictions for possession of child pornography, this Court rejects Mr. Liberty's argument that the images underlying those convictions do not depict “sexual conduct” as required by section 573.037. But seven of the convictions nonetheless must be reversed. Section 573.037 sets out the crime of “possession” of “any obscene material.” This language leaves it unclear whether a defendant's simultaneous possession of eight separate images of child pornography constitutes eight separate crimes of possession or a single crime of possession. As rules of statutory construction either are unhelpful or militate in favor of interpreting the language to permit a single conviction in these circumstances, the rule of lenity dictates that this Court interpret the statute to permit only a single conviction on the evidence adduced below that Mr. Liberty possessed eight images of child pornography on the day the images were seized.

This holding, however, does not preclude the State from retrying Mr. Liberty on the seven charges for which his convictions are reversed. Under the federal and Missouri constitutions, if a conviction is reversed as a result of trial error rather than insufficient evidence, double jeopardy principles do not bar the defendant's retrial. Here, Mr. Liberty's claim properly is characterized as trial error as it resulted from a misreading of the statute to permit multiple prosecutions based on possession of multiple images at a single time; therefore, double jeopardy principles would not bar retrial.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2007, a volunteer for an anti-pedophile activist group, the Wikisposure Project, began monitoring a website frequented by men who are sexually attracted to young boys (“the pedophile website”). After observing repeated posts by an individual with the username “DDLIBNKC,” the volunteer began saving screen shots of posts containing identifying information about the user and his sexual contact with children.¹ Included in these posts were statements by “DDLIBNKC” that he was attracted to young boys, that he had taken photographs and videos of young boys, and that he had saved certain “treasures” from young boys that he “would remember for the rest of his life.” The posts also described and contained information about a separate website on which pedophiles shared photographs of young boys. The volunteer followed a link to that website and discover that “DDLIBNKC” also had an account there with pictures corresponding to the information contained in the postings made to the pedophile website.

The screen shots associated with these posts eventually were turned over to law enforcement officers, who commenced their own investigation. These investigators acquired several more screen shots of posts with identifying characteristics of “DDLIBNKC” that contained descriptions of his contacts with children. Authorities subsequently linked these posts to Mr. Liberty and obtained a search warrant for the house north of Kansas City in which Mr. Liberty lived. During the search, officers seized several items, including a note with the name of the pedophile website written on it, numerous photographs of a young boy and items appearing to belong to a child that were referenced in the online posts made by “DDLIBNKC.” Investigators also discovered a digital camcorder

[370 S.W.3d 542]

in Mr. Liberty's bedroom, literature for an HP Pavilion DV9000 laptop computer and a box with the name “Olympus.”

The laptop and an Olympus camera eventually were seized and taken to a computer forensic's laboratory for examination.² That examination revealed that the computer had been used hundreds of times to access pedophile websites with the username “DDLIBNKC.” Investigators also discovered that the computer had been used to visit the Wikisposure Project website, which included an accessed page containing claims that “DDLIBNKC” was a pedophile. The same day the Wikisposure site was visited, the computer also was used to view a YouTube clip that referred to “DDLIBNKC.” Also on that day, a program advertised as one that would clean deleted files from computers was downloaded and executed on the computer. Despite the use of this program, however, after the computer was seized, investigators found several apparently pornographic images of children on the computer.

Accordingly, the State charged Mr. Liberty with one class B felony count of promoting child pornography in the first degree and nine class C felony counts of possession of child pornography.³ Mr. Liberty waived jury trial, and the court found him guilty of all charges, save one count of possession of child pornography.⁴ He was sentenced to twelve years imprisonment for promoting child pornography and three years imprisonment for each of his eight convictions for possession of child pornography, all sentences to be served consecutively. This appeal follows.

II. SUFFICIENCY OF THE EVIDENCE CLAIMS

Mr. Liberty argues that there was insufficient evidence to support his conviction for the class B felony of promoting child pornography because the Internet post on which the conviction was based does not describe “sexual conduct” as required by section 573.025.1. Likewise, he contends that there was insufficient evidence to convict him of six of his convictions for the class C felony of possession of child pornography because, he asserts, the images underlying those convictions do not depict “sexual conduct” as required by section 573.037.

A. Standard of Review

“In reviewing the sufficiency of the evidence in a court-tried criminal case, the appellate court's role is limited to a determination of whether the state presented sufficient evidence from which a trier of fact reasonably could have found the defendant guilty.” State v. Vandevere, 175 S.W.3d 107, 108 (Mo. banc 2005). “This is not an assessment of whether the 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

[370 S.W.3d 543]

beyond a reasonable doubt.’ ” State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011), quoting State v. Bateman, 318 S.W.3d 681, 687 (Mo. banc 2010). “When reviewing a challenge to the sufficiency of the evidence, this Court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence.” State v. Crawford, 68 S.W.3d 406, 407 (Mo. banc 2002). “All evidence and inferences to the contrary are disregarded.” Id. at 408.

B. Conviction for Promoting Child Pornography

Mr. Liberty's conviction for promoting child pornography stemmed from his post to the pedophile website describing a 5–year–old male child's physical contact with Mr. Liberty's genitals and Mr. Liberty's own physical contact with the genitals of one 7–year–old male child and with the genitals and buttocks of another. The post stated: ⁵

Oh what a wonderful way for my summer to begin AT THE LAKE[.]

Lucky me 5 [year] old [“D”] from across the street begged to tag along. Couldn['t] never talk him into HUMPING MY BACK by climbing on top of me as I was being pulled behind the boat on a Tiki Warrior[.] BUT I did get a solid hour of LAP DANCES out of him when we switched ove[r] to [an] innertube[.]

BUT THE TWINS 7 year old [“S”] and [“T”] [I see maybe once every 3 weeks.] ⁶ Long legged boys tall and skinny for [their] ages ARE QUITE TIMID lil things[.] [W]ouldn['t] say sissys rather they are MOMMAS BABYS [at least she babys them Way to much never letting them explore] ⁷ although [“S”] does have alot of girly in him[.]

ANYWAYS after much begging from [their] Dad driv[ing] the boat they finally took turns HUMPING MY BACK[.] [M]e hanging on for dear life on the Tiki Warrior and them [their] long arms and legs wrapped tight around mine as we went flying across the lake[.]

Now [“S”] never even took swim less[ons] TO[O] AFRAID[.] [S]o he was wearing [oh so damn cute he looked] ⁸ one of those little half wet-suit swimsuits[.] [T]hey came down to his knees/elbows and from the waist up the chest front/back they have sewn in lifevest so I only felt his lil boner only now and then[.]

BUT [“T”] Christ [apparently] nobody noticed he had no undies on underneath [at least till after we had left] ⁹ [to] go...