State v. Martin

• Decision Date: 30 December 2003
• Docket Number: No. 22744., No. 22736
• Citation: 674 N.W.2d 291,2003 SD 153
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. John Bryon MARTIN, Defendant and Appellant.
• Court: South Dakota Supreme Court

674 N.W.2d 291

2003 SD 153

STATE of South Dakota, Plaintiff and Appellee, v. John Bryon MARTIN, Defendant and Appellant.

Nos. 22736, 22744.

Supreme Court of South Dakota.

Argued November 18, 2003.

Decided December 30, 2003.

Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, for plaintiff and appellee.

David L. Claggett, Spearfish, for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] John Martin (Martin) was convicted in two South Dakota counties on multiple counts of possession of child pornography in violation of SDCL 22-22-23.1, now repealed. On appeal, Martin challenges the constitutionality of the statute based upon the doctrines of overbreadth and vagueness. Martin also raises a due process challenge in regards to his multiple convictions. Martin further questions the sufficiency of the evidence used to convict him. For his fifth point of error, Martin contends his sentence unlawfully exceeded the statutory limits for violation of SDCL 22-22-23.1. Finally, Martin asserts the trial courts placed impermissible restrictions on his freedom when he was prohibited from owning a computer, accessing the Internet, possessing pornography, and having no unsupervised contact with children for a period of ten years. For the reasons set forth in this opinion, we reject Martin's arguments and affirm his convictions in both Lawrence County and Butte County, South Dakota.

FACTS AND PROCEDURE

[¶ 2.] The source of this appeal can be traced back to Operation Avalanche, a massive state and federal effort designed to crack down on child pornography. As part of that effort, federal authorities investigated a Texas company engaging in the distribution and sale of child pornography over the Internet. After seizing this company's records, federal officials discovered information regarding the identities of individuals who had purchased child pornography from the business. Federal officials eventually provided South Dakota authorities with this customer list which included Martin's name, credit card number, e-mail address, and other information concerning the purchase of child pornography.

[¶ 3.] On April 9, 2002, state investigators contacted Martin at his business, the Sunshine Healthcare Center located in Lawrence County, South Dakota, concerning Martin's possible purchase of child pornography over the Internet. Martin agreed to speak with the investigators, and during this interview process he volunteered that he had intentionally sought out child pornography over the Internet. In addition, Martin voluntarily demonstrated to the investigators how he accessed child pornography through e-mails that contained website addresses.

[¶ 4.] Despite his admission that he intentionally sought out both hard-core and soft-core child pornography, Martin told the investigators that he was disgusted by the material. According to Martin, after hearing his pastor preach about the evils of child pornography, he began a personal "crusade" to get this material off the Internet. In order to accomplish his goal, he began to compile a list of child pornography websites and to download and print pornographic images of children from the Internet. Martin maintained that it was his plan to send these materials to then Governor William Janklow so that the Governor would do something about getting child pornography off the Internet. Martin admitted, however, that despite the fact that this "crusade" had started about three years earlier, no such letter had ever been written to Governor Janklow.

[¶ 5.] During the interview at his business, Martin indicated he also had a computer system at his residence in Butte County, South Dakota. In response to a request from the investigators, Martin agreed to allow them to follow him home in order to look through his second computer. After briefly examining Martin's home computer, the detectives asked Martin to accompany them to the Spearfish Police Department to continue the interview. Martin agreed.

[¶ 6.] At the police station, the investigators told Martin he was not under arrest and was free to leave at any time. Martin indicated that he understood but was willing to resume the interview. Martin continued to maintain his possession of child pornography was related to his personal campaign to alert Governor Janklow to the ease with which such material could be obtained from the Internet. In response to further questioning, however, Martin admitted this crusade had "got[ten] a hold of him" at some point during the past year. He also admitted that he became sexually aroused by the pornographic images of children he obtained from the Internet. In particular, Martin related he was most aroused by male children and even experienced orgasms on several occasions when he dreamed of these images. Martin confirmed he had spent more than $1,000 to purchase child pornography over the Internet.

[¶ 7.] After obtaining search warrants for Martin's business and residence, an investigator with specialized computer training examined both Martin's home and business computers. Both computer hard-drives contained files with child pornographic images involving vaginal intercourse, anal intercourse, fellatio, cunnilingus, masturbation, nude posing, or combinations thereof. In addition, Martin's "favorites" folder on his web browser contained web addresses with such names as "Preteen erotica," "Best boys," "Flawed, lolitas," and "PedoLove." A subsequent search on both computers revealed that the word "Janklow" did not appear on any document in either computer.

[¶ 8.] Subsequent to this investigation, grand juries in both Lawrence County and Butte County, South Dakota indicted Martin on several counts of possession of child pornography in violation of SDCL 22-22-23.1.¹ In Lawrence County, Martin was charged with twenty-nine counts of knowing possession of child pornography based upon twenty-nine photographs investigators retrieved from his business computer. After a court trial, Martin was found guilty on twenty counts of possession of child pornography. The court then sentenced Martin to serve concurrent penitentiary sentences of two years for each count. The court suspended all but forty-five days of the penitentiary sentence subject to certain terms and restrictions. Among these restrictions were prohibitions against Martin owning or possessing a computer and pornography. Additionally, Martin was required to register as a sex offender and submit to warrantless searches and seizures.

[¶ 9.] In Butte County, Martin was charged with ten counts of knowing possession of child pornography based upon ten images recovered from his home computer. After a court trial, Martin was found guilty on all ten counts. As a result, the trial court sentenced Martin to two years in the penitentiary for each crime, to be served concurrently. The court, however, suspended the execution of all but forty-five days of this sentence subject to additional conditions. Among these restrictions were requirements that Martin not possess any pornography, that he not access the Internet, and that he have no unsupervised contact with children under eighteen years of age.

[¶ 10.] Martin now appeals his convictions in both Lawrence County and Butte County. For ease of analysis and because each appeal raises the same substantive challenges, this opinion addresses both of Martin's appeals.

[¶ 11.] Martin raises the following issues in regards to his convictions for possession of child pornography in both Lawrence County and Butte County, South Dakota:

1. Whether SDCL 22-22-23.1 (2001 Version) is unconstitutionally overbroad in violation of the First Amendment's protection of Free Speech.

2. Whether SDCL 22-22-22 (2001 Version) and SDCL 22-22-23.1 (2001 Version) are unconstitutionally vague in violation of the Fifth and Fourteenth Amendments' guarantees of Due Process.

3. Whether Martin's convictions on multiple counts of Possession of Child Pornography violated the Double Jeopardy Clause of the Fifth Amendment.

4. Whether there was sufficient evidence to support Martin's convictions on multiple counts of Possession of Child Pornography.

5. Whether Martin's ten-year probationary periods for his convictions under SDCL 22-22-23.1 unlawfully exceeded the maximum statutory limits.

6. Whether the trial court properly prohibited Martin from accessing the Internet, using a computer, and possessing pornography for ten years as part of his sentence.

[¶ 12.] The following issue applies to Martin's conviction in Butte County, South Dakota only:

7. Whether the trial court properly prohibited Martin from any unsupervised contact with children under the age of eighteen years for a period of ten years as part of his sentence.

Affirmed.

STANDARD OF REVIEW

[¶ 13.] In State v. Allison, we articulated the guiding principles we employ in reviewing challenges based upon alleged constitutional violations:

Challenges to the constitutionality of a statute meet formidable restrictions. State v. Hauge, 1996 SD 48, ¶ 4, 547 N.W.2d 173, 175. We review such challenges de novo. Wegleitner v. Sattler, 1998 SD 88, ¶ 4, 582 N.W.2d 688, 689 (citation omitted). We recognize a strong presumption of constitutionality. Kyllo v. Panzer, 535 N.W.2d 896, 898 (S.D.1995) (citing Specht v. City of Sioux Falls, 526 N.W.2d 727, 729 (S.D.1995)). To be invalidated a statute must be proved a breach of legislative power beyond a reasonable doubt. City of Chamberlain v. R.E. Lien, Inc., 521 N.W.2d 130, 131 (S.D.1994). Only when the unconstitutionality of a statute is plainly and unmistakably shown will we declare it repugnant to our constitution. South Dakota Educ. Ass'n v. Barnett, 1998 SD 84, ¶ 22, 582 N.W.2d 386, 392 (quoting Poppen v. Walker, 520 N.W.2d 238, 241 (S.D.1994) (citations omitted)). If a statute can be construed so as not to violate the constitution, that construction must be adopted. Cary v. City of Rapid City, 1997 SD 18, ¶ 10, ...