State v. Morrison

• Decision Date: 21 August 2001
• Docket Number: No. 20000175, 20000258.,20000175, 20000258.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Raymond Dean MORRISON, Defendant and Appellant. State of Utah, Plaintiff and Appellee, v. Gary Davis Peterson, Defendant and Appellant.
• Court: Utah Supreme Court

31 P.3d 547

2001 UT 73

STATE of Utah, Plaintiff and Appellee, v. Raymond Dean MORRISON, Defendant and Appellant.

State of Utah, Plaintiff and Appellee, v. Gary Davis Peterson, Defendant and Appellant.

No. 20000175, 20000258.

Supreme Court of Utah.

August 21, 2001.

Mark L. Shurtleff, Att'y Gen., Thomas B. Brunker, J. Frederic Voros, Jr., Asst. Att'ys Gen., Salt Lake City, for plaintiff in No. 20000175.

W. Andrew McCullough, Orem, UT, for defendant in No. 20000175.

Mark L. Shurtleff, Att'y Gen., Laura B. Dupaix, J. Frederic Voros, Jr., Asst. Att'ys Gen., Salt Lake City, for plaintiff in No. 20000258.

Neil A. Kaplan, Anneli R. Smith, Salt Lake City, for defendant in No. 20000258.

DURRANT, Justice:

¶ 1 In separate cases, the State charged Raymond D. Morrison and Gary D. Peterson with multiple counts of sexual exploitation of a minor, a second degree felony, in violation of an earlier version of section 76-5a-3(1) of the Utah Code.¹ Morrison entered a conditional plea of guilty to twenty counts of sexual exploitation of a minor. Peterson entered a conditional plea of no contest to one count of sexual exploitation of a minor. Each appealed, and their appeals were consolidated.² Both Morrison and Peterson contend section 76-5a-3(1) is unconstitutional on its face. Peterson further contends that section is unconstitutional as applied to him. Morrison also argues the trial court erred in denying his motion to consolidate the counts brought against him into a single count. We affirm.

BACKGROUND

I. STATE V. MORRISON

¶ 2 Acting on a search warrant, officers of the St. George Police Department found and seized thousands of photographs of children from Morrison's bedroom on March 30, 1999. The photographs had been downloaded and printed from a computer. Based on the photographs, the State charged Morrison with fifty counts of sexual exploitation of a minor. Morrison filed a motion to dismiss the charges, contending that section 76-5a-3(1) was unconstitutionally overbroad and vague on its face, that it could not constitutionally be applied to him, and that it impermissibly restricted his rights under the First Amendment of the United States Constitution. Morrison also moved to consolidate the fifty counts brought against him into a single count, arguing that the acts constituted a single criminal episode. The trial court denied both motions, and Morrison entered a conditional plea of guilty to twenty of the counts against him. The court sentenced Morrison to twenty concurrent one to fifteen year sentences and assessed a $25,000 fine against him. However, the court then stayed execution of this sentence, placing Morrison on three years' probation instead.

II. STATE V. PETERSON

¶ 3 Peterson was a student at Weber State University in the fall of 1998. On September 30, he downloaded and printed nine photographs from the Internet using a university computer. Peterson was arrested and charged with nine counts of sexual exploitation of a minor. He moved to dismiss the charges claiming section 76-5a-3(1) was unconstitutionally overbroad and vague on its face and could not be constitutionally applied to him. The trial court denied Peterson's motion, and Peterson entered a conditional plea of no contest to one count of sexual exploitation of a minor. Peterson was placed on three years' probation.

ANALYSIS

¶ 4 On appeal, Morrison and Peterson raise three issues. They both contend section 76-5a-3(1) is unconstitutionally overbroad and vague on its face. Additionally, Peterson argues that the section is unconstitutional as applied to him. Finally, Morrison contends the trial court erred in denying his motion to consolidate the fifty counts against him into a single count. We address these issues in that order.

I. FACIAL CONSTITUTIONALITY OF SECTION 76-5a-3(1)

¶ 5 Both Morrison and Peterson contend section 76-5a-3(1) is unconstitutionally overbroad and vague on its face. "A constitutional challenge to a statute presents a question of law, which we review for correctness. . . . When addressing such a challenge, this court presumes that the statute is valid, and we resolve any reasonable doubts in favor of constitutionality." State v. Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191 (citation omitted). We disagree with Morrison's and Peterson's contentions and conclude the trial courts correctly held section 76-5a-3(1) is not unconstitutionally overbroad or vague.

A. Overbreadth Challenge

¶ 6 Recognizing "that the sexual exploitation of minors is excessively harmful to their physiological, emotional, social, and mental development," Utah Code Ann. § 76-5a-1 (1999), the legislature enacted section 76-5a-3 "to eliminate the market for those materials [that sexually exploit minors] and to reduce the harm to the minor inherent in the perpetuation of the record of his sexually exploitive activities." Id. Section 76-5a-3 reads, in pertinent part, as follows:

(1) A person is guilty of sexual exploitation of a minor:

(a) when he knowingly produces, distributes, possesses, or possesses with intent to distribute, material or a live performance depicting a nude or partially nude minor for the purpose of causing sexual arousal of any person or any person's engagement in sexual conduct with the minor.

Id. § 76-5a-3(1). Morrison and Peterson contend this section is overly broad as it prohibits the possession of constitutionally protected materials. Yet, the mere fact that a statute is overbroad to some degree does not automatically warrant reversal. "[W]here a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only `real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.'" Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). We conclude section 76-5a-3(1) is not unconstitutionally overbroad.

¶ 7 "[C]hild pornography . . . , like obscenity, is unprotected by the First Amendment." New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). While the United States Supreme Court "has never attempted to define `child pornography' itself," Amy Adler, Inverting the First Amendment, 149 U. Pa. L.Rev. 921, 936 (2001), it has given some guidance. The Court has indicated that a depiction of a nude minor, without more, does not constitute child pornography.³ See Ferber, 458 U.S. at 765 n. 18, 102 S.Ct. 3348 (noting that "nudity, without more[,] is protected expression"); Osborne, 495 U.S. at 112, 110 S.Ct. 1691 ("[D]epictions of nudity, without more, constitute protected expression."). Further, "[a]s with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed." Ferber, 458 U.S. at 764, 102 S.Ct. 3348. Finally, the statute must include a scienter requirement. Id. at 765, 102 S.Ct. 3348.

¶ 8 With this guidance in mind, we now turn to the issue before us. As it pertains to Morrison and Peterson's challenge, section 76-5a-3(1) makes a person guilty of sexual exploitation of a minor "when he knowingly . . . possesses . . . material . . . depicting a nude or partially nude minor for the purpose of causing sexual arousal of any person." Utah Code Ann. § 76-5a-3(1)(a). Morrison and Peterson assert this section is overbroad in that it prohibits possession of depictions of nude or partially nude minors, without more.⁴ As Morrison and Peterson read it, a person who "knowingly . . . possesses. . . material . . . depicting a nude or partially nude minor," id., is only in violation of section 76-5a-3(1) if that person possesses the material "for the purpose of sexual arousal of any person." Id. This, they argue, is overly broad because material depicting only a nude or partially nude minor, without more, is constitutionally protected, see Ferber, 458 U.S. at 765 n. 18,102 S.Ct. 3348; Osborne, 495 U.S. at 112,110 S.Ct. 1691, and because "[w]hen a picture does not constitute child pornography . . . it does not become child pornography because it is placed in the hands of the pedophile, or in a forum where pedophiles might enjoy it." United States v. Villard, 700 F.Supp. 803, 812 (D.N.J.1988),aff'd,885 F.2d 117 (3d Cir.1989).

¶ 9 The State responds by arguing that Morrison and Peterson misconstrue section 76-5a-3(1) and that that section properly prohibits the possession of child pornography, which is not constitutionally protected. See Ferber, 458 U.S. at 764, 102 S.Ct. 3348. As the State reads it, a person who "knowingly. . . possesses . . . material . . . depicting a nude or partially nude minor," Utah Code Ann. § 76-5a-3(1)(a), is only in violation of that section if the material depicts the minor "for the purpose of sexual arousal of any person." Id. Accordingly, the State contends, depictions of nude or partially nude minors, without more, are not proscribed by the statute. Rather, the statute requires that the depiction be "for the purpose of sexual arousal of any person." Id.

¶ 10 We believe the State propounds the better reading of section 76-5a-3(1). The State's construction of that section is consistent with the legislature's purpose in enacting that section. The legislature stated several times that it is the proscribed materials themselves that sexually exploit minors. See Utah Code Ann. § 76-5a-1 (emphasizing, repeatedly, the dangers of "materials that sexually exploit minors"). We believe this to be indicative of the legislature's intent that we look to the materials themselves, not the intent of the possessor, to determine whether they are proscribed as sexually exploitive.

¶ 11 Further, under Morrison and Peterson's interpretation, there are two scienter requirements: the person must possess the proscribed material both "knowingly" and "for the purpose of sexual arousal of any person." Id. § 76-5a-3...