State v. Quick

• Decision Date: 01 February 2011
• Docket Number: No. WD 71058.,WD 71058.
• Citation: 334 S.W.3d 603
• Parties: STATE of Missouri, Respondent,v.Sean M. QUICK, Appellant.
• Court: Missouri Court of Appeals

334 S.W.3d 603

STATE of Missouri, Respondent,

v.Sean M. QUICK, Appellant.

No. WD 71058.

Missouri Court of Appeals, Western District.

Feb. 1, 2011.As Modified March 1, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied March 1, 2011.

Application for Transfer Denied

April 26, 2011.

Frank K. Carlson, Union, MO, for appellant.Shaun J. Mackelprang and Richard A. Starnes, Jefferson City, MO, for respondent.Before Division One: JAMES M. SMART, JR., P.J., MARK PFEIFFER and CYNTHIA L. MARTIN, JJ.JAMES M. SMART, JR., Judge.

Sean Quick appeals his convictions and associated sentences for first-degree promoting child pornography and possession of child pornography. He claims on appeal that the trial court erred in evidentiary rulings and in instructing the jury. The judgment is affirmed.

Facts

Sean Quick was charged with one count of felony promotion of child pornography in the first degree (by offering files through file-sharing) in violation of section 573.025 and two counts of felony possession of child pornography in violation of section 573.037 RSMo 2000. Count I alleged that defendant Quick, “knowing its content and character, offered or agreed to provide obscene material consisting of a video that portrays what appears to be a person under the age of fourteen years as a participant in sexual conduct.” Count II alleged that defendant, “knowing its content and character, possessed obscene material consisting of a video, which portrays what appears to be a person under the age of fourteen years as a participant of sexual conduct.”

Quick filed a motion to suppress statements allegedly made to police on the day his computer was seized by police on the grounds that said statements were obtained from Quick in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court denied the motion, ruling that Quick was not in custody when the statements were made. The objection to the statements was renewed at trial. The objection was overruled. The trial court allowed testimony related to his oral statements to police in an interview that the court determined was a voluntary non-custodial interview.

At trial, the State presented evidence that, on November 30, 2007, two detectives from the Boone County Sheriff's Department went to Quick's apartment in Boone County without a search warrant to see if he would be willing to voluntarily discuss a matter they were investigating. Detective Perkins had received information that Quick was an internet subscriber whose IP address had come back as accessing potential child pornography. Through the IP address, the detectives located the physical address of the internet account holder, which was Quick's apartment.

Quick answered the door and met the two plain-clothes detectives, who identified themselves and informed Quick why they were there. They asked if they could come in. According to the undisputed testimony of the officers, Quick replied “that would be fine” and invited them in, saying also that he would be “getting ready” to go to work.

Detective Perkins asked Quick about his internet use and file-sharing. She testified that Quick told her that he participated in file-sharing of pornography and had downloaded child pornography through file-sharing, because he was curious about how easy it was to obtain after watching a television episode related to law enforcement as to child pornography. He did not specifically say whether or not he actually viewed the files he had downloaded, but he said that he decided it was “silly” or “wrong” to have the images and that he “got rid of them” and “dumped them into the recycle bin.”

Detective Perkins testified that she asked Quick for permission to run a program on his computer designed to scan the computer and present thumbnails of any images that appeared to correspond to typical patterns of child pornography. Quick agreed and voluntarily signed a form used by the police department to authorize use of the program. Detective Sullivan ran the program on Quick's computer. Sullivan conducted a preview of the computer using the program searching the hard drive for graphic files. Sullivan saw several images that appeared to be child pornography. Detective Sullivan asked Detective Perkins to review the images. The officers testified that based on their observation of images on the hard drive, they decided to seize the computer in order to more thoroughly evaluate what was on the computer. The propriety of the seizure of the computer is not at issue in this case.

Captain Scott Richardson of the University of Missouri Police Department testified that he conducted a forensic examination of Quick's hard drive and located files that appeared to be child pornography. Richardson described in detail two particular video files, State's Exhibits 16 and 17. He described State's Exhibit 17 as depicting two young girls who are exposing their vaginal area and another little girl who is completely unclothed. Captain Richardson said the video depicted a person using a sex object (a so-called “sex toy”) being used on the vagina of the unclothed little girl. The file name of Exhibit 17 was “Euman Hindoo Prostitute 10Ans–2–1 (Hussyfan) (Pthc) (R@Ygold) (Babyshivid) (India Lolita) [24481].” That file was created July 4, 2007.

Richardson also described the other exhibit, No. 16, which, according to the testimony, reveals a helpless young girl who is tied with rope (including a rope around her neck) and is subjected to multiple instances of forcible rape and sodomy and other sexual abuse by an unidentified and malevolent oppressor whose face is not disclosed to the camera. The file name of Exhibit 16 is “Ped–Vicky Compilation (Pthc) 10yo Kiddy Reality Child Get's What she Wants—All Kinds of F* * *.” That file was shown as being created April 5, 2007. There is no contention on appeal here as to the sufficiency of the evidence. Nor is there any doubt that the exhibits, as described in the testimony, and especially Exhibit 16, constituted vicious child pornography.

The defendant waived objection as to the admission of Exhibit 17. The court admitted Exhibits 16 and 17, with Exhibit 16 admitted over the defense objection. The State published to the jury portions of State's Exhibits 16 and 17, also over defense objection. Defense counsel objected on grounds that they were being published only to elicit the prejudices and sympathy and emotions of the jury. The defense argued that they should not be published to the jury at all, even in portion, because the defense had stipulated that the files contained child pornography and because they were both described verbally. After publication to the jury, the State rested.

The defense presented an expert witness on file-sharing to hypothesize that because only seven files on Quick's hard drive contained child pornography (out of 651 shared files), perhaps the illegal files were downloaded by various viruses that infected the computer and were not intentionally downloaded. The expert acknowledged that he could not demonstrate that any virus caused the download of the child pornography. The defense rested after presenting this expert testimony.

At the instruction conference, defense counsel objected to Instructions 6, 7, 8, 9, and 10, on grounds that they instructed the jury to find Quick guilty if he was “aware” of the content and character of the videos found on his computer, although “aware” posits a lesser mental state than “knew,” which was the language used in the statutes under which Quick was charged. The objections were overruled.

The jury returned verdicts of guilty on both Counts. The trial court sentenced Quick to eight years for Count I and four years for Count II, to be served concurrently in the Missouri Department of Corrections.

Quick appeals. He does not challenge the sufficiency of the evidence resulting in his convictions.

Point I

Quick claims the trial court erred in overruling his attempts to preclude admission of videos at trial that he says were highly inflammatory, cumulative, duplicative, irrelevant, and not probative. Quick further argues that any probative value the videos might possess was outweighed by their prejudicial effect. He says he stipulated that the videos contained child pornography, other witnesses described the content and character of the videos, and the only purpose served by the publication of the videos was to inflame the passion of the jury against him.

Quick's claim regarding State's Exhibit 17 is not preserved because he affirmatively stated that he had no objection to the exhibit. Such a declaration waives even plain error review of a claim. State v. Johnson, 284 S.W.3d 561, 582 (Mo. banc 2009). Quick's claim regarding Exhibit 16 is preserved because he objected to the admission and the publication of that video.

If the undisputed testimony of Captain Richardson is believed, Quick is correct that Exhibit 16 was inflammatory-indeed, not only inflammatory, but no doubt practically trauma—inducing as well. But that does not end our inquiry, because even the most heinous and graphic and upsetting videos and photos may be admitted within the court's discretion when they are legally relevant because the high degree of logical relevance outweighs the risk of prejudice and confusion. See State v. Davis, 318 S.W.3d 618, 640 (Mo. banc 2010).

The trial court has broad discretion in the admission of evidence, and review is for abuse of that discretion. State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009). An abuse of discretion is found only where the court's ruling is “clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” State v. Johnson, 207 S.W.3d 24, 40 (Mo. banc 2006). If reasonable persons may differ as to the propriety of an action taken by the trial court, then there was no abuse of discretion. Id...