State v. Liker
| Decision Date | 22 January 2018 |
| Docket Number | No. SD 34829,SD 34829 |
| Citation | 537 S.W.3d 405 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Luke Lamar LIKER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Attorney for Appellant: Carol D. Jansen of Columbia, MO.
Attorney for Respondent: Josh Hawley, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., of Jefferson City, MO.
Following a jury trial, Luke Liker (Defendant) was convicted of three counts of the class B felony of possession of child pornography and one count of the class C felony of possession of child pornography. See § 573.037.1 Presenting three points of error, Defendant contends: (1) the trial court abused its discretion in admitting "the terms ‘preteen,’ ‘child’ and ‘kiddy,’ which indicated an alleged age of the individuals portrayed" in the video files for which Defendant was charged; (2) the trial court abused its discretion in overruling Defendant's motion for a mistrial or new trial following a juror's disclosure after trial that she had taken notes and shared them with other jurors during deliberations; and (3) the judgment erroneously described the sentence on the last count involving possession of a still image of child pornography as a class B felony when that offense was only a class C felony. Finding merit in Defendant's third point, we remand with directions to correct the judgment to reflect that Defendant's fourth conviction was of the class C felony of possession of child pornography. In all other respects, we affirm.
Defendant does not contest the sufficiency of the evidence to support his convictions. "We consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and we reject all contrary evidence and inferences." State v. Campbell , 122 S.W.3d 736, 737 (Mo. App. 2004) ; see State v. Johns , 34 S.W.3d 93, 103 (Mo. banc 2000). Viewed from that perspective, the following facts were adduced at trial.
Between May 17 and June 21, 2009, Defendant was staying with Stephanie Burtis (Burtis) and her then-husband in an apartment in Springfield. According to Burtis, Defendant had internet access and used his Compaq laptop computer (the Compaq) every day. Defendant later purchased a new computer and sold the Compaq to Burtis' neighbor, Shannon Tittle (Tittle). He and Defendant had become friends.
While visiting Defendant a few days later, Tittle noticed what he believed was child pornography on Defendant's new computer. When Tittle asked about it, Defendant admitted he had pornography on the new computer and showed Tittle some images. Tittle became concerned that the Compaq he bought from Defendant might also have pornography on it. Tittle checked the Compaq and saw files that appeared to contain child pornography. The police were notified, and Tittle gave them the Compaq. A forensic examination of the Compaq revealed approximately 3,000 movie files containing child pornography, plus 40 or more still images depicting child pornography.
Defendant was eventually charged with five counts of possession of "child pornography of a person less than eighteen years of age[.]"2 The first four counts were each charged as a class B felony for possessing a motion picture, and the fifth count was charged as a class C felony for possessing an image.
The technician who performed the forensic examination, Christopher Woods (Woods), testified that a file-sharing program called Limewire was installed on the Compaq. Limewire is a common program used for obtaining child pornography on the internet. The Compaq also contained a folder with Defendant's name on it that was used to access some of the child pornography. The State published portions of four videos and one still image to the jury. The file names associated with the videos contained terms that are commonly associated with child pornography.
Defendant did not testify or present any evidence. His defense was that it was Tittle who possessed the child pornography. The jury found Defendant guilty of all five counts; four counts of the class B felony of possession of child pornography for possessing videos, and one count of the class C felony of possession of child pornography for possessing a still image. In the sentencing phase, the jury recommended terms of seven years' imprisonment on each count, plus a fine on the class C count.
Prior to sentencing, the trial court set aside the jury's verdict on Count 4, one of the class B counts, on the basis that it could not be clearly determined that the person depicted in the video was under the age of 18. The court imposed the seven-year sentences recommended by the jury on each of the remaining counts and ordered that they be served concurrently. The court also imposed a $1,000 fine on the class C count. This appeal followed. Additional facts necessary to the disposition of the case will be included below as we address Defendant's three points.
Defendant's first point contends the trial court erred in admitting testimony containing "the terms ‘preteen,’ ‘child’ and ‘kiddy[.]’ " A trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion. State v. Blurton , 484 S.W.3d 758, 769 (Mo. banc 2016). The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration. Id . ; State v. Winfrey , 337 S.W.3d 1, 5 (Mo. banc 2011). The following facts are relevant to this point.
Defendant filed a third motion in limine that sought to preclude any comment or testimony concerning his possession of images of child pornography that were not charged. The trial court ruled that the State could discuss the total number of files found, but had to be cautious in using file names and could not tell the jury the age that was contained in those file names.
When Woods was asked if there were words or phrases commonly associated with child pornography, Defendant objected, based in part on the motion in limine. Defense counsel explained, in relevant part:
Judge, my objection is that it's going towards my motion in limine as far as it sounds like he is definitely going to get into the jargon of file names or files themselves. "PTHC" is mainly, I think, associated with this case, and it definitely sounds like that is where he is going with the question asked. I believe that you said that he cannot use "PTHC" and the code names, I guess, to put it correctly.
The prosecutor countered, clarifying:
Actually, Your Honor, I have written down—and we can go back and look at the record—that you specifically told me I was allowed to get in phrases that were commonly associated. The one thing that I was not—and I remember it because this was very important to our case. You specifically limited us from the age portion. But I did bring up that, you know, those common phrases do go to knowledge and intent for downloading, and I have that you specifically allowed me to do those parts of the titles as long as I did not mention age.
The court stood by its previous ruling that the names of the files could be mentioned without any reference to ages. The court granted Defendant a continuing objection on the issue.
Woods went on to testify that certain terms are used in naming child pornography files in order to alert the user to the content of the file. Woods testified to some examples:
Some of the examples that I distinctly remember would be PTHC, which is an acronym for preteen hardcore, PTSC, which is preteen soft core, NYMFANT, which is trying to combine the words "nympho" and "infant," and things of that nature.
The State published portions of four videos and one still image to the jury. The full file names were not read to the jury, but Woods identified terms in the title that are commonly associated with child pornography. The first video contained the terms "pedo," "child lover," and "kiddy." The second video contained the terms "hussyfan" and "PTHC." The third video contained the terms "PTSC" and "PTHC." The fourth video contained the term "PTHC." Defendant's objection was renewed in his motion for new trial.
To be admissible, evidence must be both logically and legally relevant. State v. Anderson , 76 S.W.3d 275, 276 (Mo. banc 2002). Evidence is logically relevant if the evidence tends to make the existence of a material fact more or less probable. Id . Evidence is legally relevant if its benefits outweigh its costs, including unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness. Id .
Defendant argues that the challenged testimony was inadmissible because it was neither logically nor legally relevant to the jury's determination of the age of the individuals in the video. According to Defendant, "testimony of the terms ‘preteen,’ ‘child’ and ‘kiddy,’ which indicated an alleged age of the individuals portrayed in the four video files ... confused and misled the jury by suggesting that the jury could rely on the ages in the titles to determine the ages of the individuals in the videos" rather than from "viewing the videos [.]" Based on this premise, Defendant argues the trial court abused its discretion in admitting the testimony. We disagree.
"A person commits the crime of possession of child pornography if, knowing of its content and character, such person possesses any child pornography of a minor under the age of eighteen or any obscene material portraying what appears to be a minor under the age of eighteen." § 573.037.1.3 "Therefore, the elements of the crime of possession of child pornography require a defendant to: (1) have knowledge of the content and character of and (2) possess (3) obscene material (4) that has a child as a participant or portrays what appears to be a child as an observer or participant of sexual conduct." State v. Kamaka , 277 S.W.3d 807, 813 (Mo. App. 2009) ; see State v. Dean , 382 S.W.3d 218, 222 (Mo. App. 2012) (...
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State v. Smith
...sentences as running concurrently was a clerical error correctable via nunc pro tunc order. Id . at 277 ; see State v. Liker , 537 S.W.3d 405, 413 (Mo. App. S.D. 2018) ; State v. Woods , 357 S.W.3d 249, 256 (Mo. App. W.D. 2012) ; see also Rule 29.12(c) (permitting a trial court to correct s......