State v. Mather, S-01-738.

• Decision Date: 28 June 2002
• Docket Number: No. S-01-738.,S-01-738.
• Citation: 646 N.W.2d 605,264 Neb. 182
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Wyman R. MATHER, Appellant.

646 N.W.2d 605

264 Neb. 182

STATE of Nebraska, Appellee, v. Wyman R. MATHER, Appellant.

No. S-01-738.

Supreme Court of Nebraska.

June 28, 2002.

Julie E. Bear, Deputy Cass County Public Defender, of Reinsch & Slattery, P.C., Plattsmouth, for appellant.

Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

On April 5, 2001, Wyman R. Mather was convicted by a jury in the district court for Cass County of 18 counts of visual depiction of sexually explicit conduct which has a child as one of its participants in violation of Neb.Rev.Stat. § 28-1463.03 (Reissue 1995) of the Child Pornography Prevention Act. Mather was sentenced on each of the 18 counts to imprisonment for a term of 3 to 5 years, and the district court ordered that the sentences run concurrently. Mather appeals his convictions and sentences.

On appeal, Mather claims that, if guilty, his conduct amounted to one continuing offense rather than 18 separate counts, that certain evidence was erroneously admitted, and that his sentences are excessive. We conclude that based on the statutory language, and because each of the 18 differing photographs represented a separate violation under either § 28-1463.03(1) or (3), Mather's convictions on 18 counts were not error; that the district court did not err in its evidentiary ruling; and that the sentences are not excessive. Accordingly, we affirm.

STATEMENT OF FACTS

Mather is a photographer who had a studio in his home in Weeping Water, Nebraska. In September or October 1999, T.P. made an appointment to get her high school senior photographs taken by Mather. At the time, T.P., who was born May 25, 1982, was 17 years old. T.P. arrived at the studio in the afternoon, and shortly after her arrival she and Mather left the studio to take photographs outdoors. Photographs were taken at various locations within Weeping Water, including at a ballpark, near a church, and by a lake.

At some point, Mather told T.P. that he had taken nude photographs of women for their husbands and that he thought nude photography was beautiful. Mather asked T.P. whether she wanted to take some nude photographs, and T.P. said, "Okay." While they were near the lake, Mather took two photographs of T.P. in which she had unzipped her jeans. Mather then drove T.P. to an area approximately 5 miles west of Weeping Water, described by T.P. as "a place out in the country with a barn and little creek." T.P. testified the location was within Cass County. At this location, Mather took 16 additional photographs of T.P. in which she was completely or near completely nude and in which her breasts and/or her genitals were displayed. Throughout the session, Mather told T.P. she was beautiful and directed her on how to pose, including placing his hands on her breasts and her genital area in order to demonstrate how she should place her hands for the photographs. Each of the 18 photographs depicts a different pose.

Mather and T.P. then returned to Mather's studio where he took senior photographs of T.P. wearing her prom dress. When he had completed taking the senior photographs, Mather told T.P. they would be ready in 2 to 3 weeks. T.P. returned to Mather's studio when the photographs were ready and picked up the senior photographs. Mather showed T.P. the nude photographs; however, he told her she could not have the nude photographs until she turned 18.

T.P. returned to the studio in June 2000, after she had turned 18, and attempted to get the nude photographs, but Mather claimed he would need time to locate the photographs. Officers in the Cass County sheriff's office subsequently obtained a search warrant for Mather's house and studio where they found, inter alia, the 18 photographs that are the subject of the charges in this case.

On July 25, 2000, the State filed an 18count information in the district court charging that Mather did

knowingly make, publish, direct, create, provide, or in any other manner generate visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers or did knowingly employ, force, authorize, induce, or otherwise cause a child to engage in any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers.

The language in the information tracked § 28-1463.03(1) and (3). Each count specified 1 of the 18 photographs.

Following a trial held April 3 through 5, 2001, a jury found Mather guilty of all 18 counts. On June 5, the district court sentenced Mather to imprisonment for 3 to 5 years on each of the 18 counts and ordered that the sentences be served concurrently. Mather appeals his convictions and sentences.

ASSIGNMENTS OF ERROR

Mather asserts the district court erred in (1) determining that the State properly charged him with 18 separate counts rather than 1 count when the alleged facts involved one continuous act resulting in multiple photographs featuring the same subject and taken at the same time and location, (2) admitting the photographs into evidence without proper foundation as to the chain of custody and the location where the photographs were taken, and (3) imposing excessive sentences.

STANDARDS OF REVIEW

Interpretation of a statute presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. State v. Rhea, 262 Neb. 886, 636 N.W.2d 364 (2001).

In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in determining admissibility. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. State v. Roeder, 262 Neb. 951, 636 N.W.2d 870 (2001).

Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Heitman, 262 Neb. 185, 629 N.W.2d 542 (2001).

ANALYSIS

Multiple Counts.

Mather was charged under § 28-1463.03(1) and (3). Subsection (1) provides, "It shall be unlawful for a person to knowingly make, publish, direct, create, provide, or in any manner generate any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers." Subsection (3) provides, "It shall be unlawful for a person to knowingly employ, force, authorize, induce, or otherwise cause a child to engage in any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers." For purposes of the Child Pornography Prevention Act, a "visual depiction" is defined as a "live performance or photographic representation." Neb.Rev.Stat. § 28-1463.02(6) (Reissue 1995).

Mather asserts generally that the conduct complained of, if established by the evidence, amounted to one count. He specifically argues that the conduct complained of was a continuing offense and that the district court erred in determining that the State properly charged him with 18 separate counts of visual depiction of sexually explicit conduct which has a child as one of its participants under § 28-1463.03(1) and (3). Mather argues that the facts of this case support only one count because, although the State based its charges on 18 separate and different photographs, all 18 photographs were taken of the same subject on the same day as part of one ongoing or continuous act. Mather also argues that being charged with and sentenced on 18 separate counts violated the Double Jeopardy Clauses of the U.S. and Nebraska Constitutions which preclude multiple punishments for the same offense imposed in a single proceeding. See State v. Spurgin, 261 Neb. 427, 623 N.W.2d 644 (2001).

The Double Jeopardy Clauses of both the federal Constitution and the Nebraska Constitution protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Id. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001). Although in his brief Mather couches his argument in terms of multiple "counts," we understand his claim to be based on the prohibition against multiple punishments for one offense.

The issue raised by Mather with respect to whether or not he has received multiple punishments for the same offense is resolved by reference to the statutory language of § 28-1463.03(1) and (3). It is well settled that whether a particular course of conduct involves one or more distinct offenses under a statute depends on how a legislature has defined the allowable unit of prosecution. See, Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955). Thus, whether Mather's conduct in creating the 18 different photographs involved 1 offense or 18 separate offenses depends on how the statute defines the offense and the "`unit of prosecution'" intended by the Legislature as reflected in the plain language of the statute. See State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001) (in reading statute, court must determine and give effect to purpose and intent of Legislature as ascertained from entire language of statute considered in its plain, ordinary, and popular sense).

With respect to the prohibited conduct, a person commits an offense under § 28-1463.03(1) by making, publishing, directing, creating, providing, or generating "any visual depiction" of the subject matter described, which depiction under § 28-1463.02(6)...