State v. Roggenbuck

• Decision Date: 04 December 2012
• Docket Number: No. SC 92236.,SC 92236.
• Citation: 387 S.W.3d 376
• Parties: STATE of Missouri, Respondent, v. Robin S. ROGGENBUCK, Appellant.
• Court: Missouri Supreme Court

387 S.W.3d 376

STATE of Missouri, Respondent,

v.Robin S. ROGGENBUCK, Appellant.

No. SC 92236.

Supreme Court of Missouri, En Banc.

Dec. 4, 2012.

Frederick J. Ernst, Kansas City, MO, for Roggenbuck.

James B. Farnsworth and Shaun J. Mackelprang, Jefferson City, MO, for the State.

RICHARD B. TEITELMAN, Chief Justice.

Robin S. Roggenbuck appeals the circuit court's judgment convicting him of five counts of possession of child pornography. Roggenbuck asserts three points on appeal. First, he asserts that the court erred in overruling his motion to suppress an affidavit offered in support of the search warrant used to seize the evidence because the affidavit did not establish probable cause. Second, he asserts the entry of five separate convictions constitutes double jeopardy and violates his rights to due process and trial by jury. Finally, Roggenbuck asserts that the court improperly admitted hearsay evidence of the content of resumes found on his computer. The judgment is affirmed.

I. Facts

In February 2008, a detective obtained a search warrant authorizing a search of Roggenbuck's residence and computer for child pornography. The warrant application was based primarily on information reported by a man claiming that Roggenbuck had sexually abused him. The informant reported that there were other “victims” and that Roggenbuck kept a supply of alcohol under his sink to give to “boys” so that he could “have his way with them.” The informant also stated that Roggenbuck had images of children on his computer. The warrant was issued.

Police searched Roggenbuck's residence and seized his computer. A forensic analysis of the computer revealed five different pornographic photographs of young boys. Each photograph had been downloaded and saved at different times and was in a folder labeled “My Pictures” that was in a user account called “Robin.” In addition to the child pornography, the “My Pictures” folder also included a photograph of Roggenbuck that was labeled as “My Pic.”

As noted, a jury convicted Roggenbuck of five counts of possession of child pornography. The court sentenced Roggenbuck as a prior and persistent offender to five consecutive terms of seven years imprisonment. Roggenbuck appeals.

II. Probable Cause

Roggenbuck's first point on appeal asserts that the circuit court erred in overruling his motion to suppress the evidence seized from his residence. He claims that the affidavit offered to support the search warrant failed to state facts sufficient to establish probable cause and that that deficiency rendered it impossible for any police officer to rely on the warrant in good faith.

The application and affidavit in support of the search warrant contained the following:

On February 13, 2008, Detective Sergeant Elizabeth Neland received information from E.D.M.1 b/m 03–17–1970, [social security # ], that Robin S. Roggenbuck, w/m 07–26–1952, at 400 Studio Drive, Building A, Apartment # 2, Platte City, Platte County, Missouri, had been sexually abusing E.D.M. for the past five months at Roggenbuck's residence. E.D.M. indicated that Roggenbuck has a computer system in the living area of the apartment. E.D.M. reported the computer system is located to the left of the door upon entry and it is placed on a glass type desk. E.D.M. stated that Roggenbuck has images of children approximately ten years of age and older on his computer system. E.D.M. stated that Roggenbuck would ask him to look at the images.

On February 13, 2008, E.D.M. informed Detective Sergeant Elizabeth Neland that Robin S. Roggenbuck had stuck his finger and other “sex toys” in his buttocks penetrating the anal cavity. E.D.M. stated the sex toys were kept under Roggenbuck's bed and that there was only one bed in the apartment. E.D.M. reported there are other victims and provided first names of these victims. E.D.M. stated Roggenbuck keeps a supply of alcohol under the kitchen sink and gives the alcohol to the boys to have his way with them.

On February 11, 2008, Nina Epperson, M.S., a psychologist, accompanied E.D.M. to the residence located at 400 Studio Drive, Building A, Apartment # 2, Platte City, Platte County, Missouri to gather his belongings and while inside the residence observed large quantities of alcohol and a large massager plugged into the bedroom wall.

Based on this affidavit, the circuit court found probable cause to warrant a search of Roggenbuck's residence and computer and the seizure of any “[p]roperty, article, material or substance that constitutes evidence of the commission of a crime” and “[p]roperty for which possession is an offense under the laws of this state.”

The Fourth Amendment to the United States Constitution guarantees that no warrant shall issue except upon probable cause supported by oath or affirmation. State v. Neher, 213 S.W.3d 44, 48–49 (Mo. banc 2007). “In determining whether probable cause exists, the issuing magistrate or judge must ‘make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her] ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Id. at 49, quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527, (1983). “Accordingly, in reviewing a trial court's ruling on a motion to suppress evidence seized pursuant to a search warrant, the court gives great deference to the initial judicial determination of probable cause that was made at the time the warrant issued.” Id., citing State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990). An appellate court only will reverse if the issuing magistrate or judge clearly erred in initially determining, based on the totality of the circumstances, that probable cause existed. Id., citing State v. Norman, 133 S.W.3d 151, 159 (Mo.App.2004).

The circuit court did not err in overruling Roggenbuck's motion to suppress. First, the probable cause affidavit alleges criminal activity because the informant alleged that Roggenbuck committed specific acts of sexual abuse against the informant and that there were also “other victims” of sexual abuse perpetrated by Roggenbuck. Sexual abuse is a crime. See section 566.100, RSMo Supp.2007. Second, the affidavit states that the informant advised police that Roggenbuck kept alcohol under his sink to give to “boys” to “have his way with them.” The clear implication of these allegations is that Roggenbuck violated section 311.310 by supplying alcohol to minors to commit unspecified sex crimes against those minors. Finally, these assertions were corroborated, in part, by a psychologist's first-hand observation of an electric “massager” and large quantities of alcohol in Roggenbuck's home. The totality of the circumstances detailed in the probable cause affidavit is plainly sufficient to establish that “there is a fair probability that contraband or evidence of a crime will be found in a particular place,” namely, Roggenbuck's residence.

Roggenbuck also asserts that even if there was probable cause to search his residence, there was no basis for seizure of the computer because the affidavit does not state or suggest that the pictures of children are illegal. Roggenbuck's argument ignores the clear context of the affidavit. The allegation that Roggenbuck had images of “children approximately ten years of age or older” must be assessed in the context of the rest of the affidavit, which consists almost entirely of allegations that Roggenbuck committed a variety of sex crimes. Given this context, the most reasonable conclusion to draw is that the images of children on Roggenbuck's computer are sexual in nature.¹ For this Court to hold that the search of Roggenbuck's computer was not supported by probable cause, it would have to conclude that the circuit court clearly erred and, instead, that the informant most likely was referring to perfectly innocuous images of children such as those that may be found in a family album. A review of the affidavit establishes that the warrant alleged sufficient facts to support a finding that there was probable cause that evidence of child pornography would be found on Roggenbuck's computer. The circuit court did not clearly err in overruling Roggenbuck's motion to suppress.

III. Double Jeopardy and Right to Trial by Jury

Roggenbuck asserts that his five separate convictions and five consecutive sentences for possession of child pornography violate the double jeopardy clause. U.S. Const. amend. V. Roggenbuck argues that he did not commit five separate offenses and, instead, that he committed the single offense of possessing a “series” of illegal photographs. He also asserts that the timing of his acquisition and possession of the photographs is a fact that must be found by the jury.

Roggenbuck concedes failure to preserve this issue and requests plain error review under Rule 30.20. Even though Roggenbuck did not preserve his double jeopardy argument, this Court will conduct plain error review of an unpreserved double jeopardy claim if the alleged double jeopardy violation is “determinable from the face of the record.” State v. Liberty, 370 S.W.3d 537, 546 (Mo. banc 2012). To establish plain error, Roggenbuck bears the burden of demonstrating that an error so substantially affected his rights that a “manifest injustice or miscarriage of justice has resulted therefrom.” Id.

The double jeopardy clause protects a defendant both from successive prosecution for the same offense and from multiple punishments for the same offense. Liberty, 370 S.W.3d at 546. Roggenbuck's argument is that his five convictions constitute multiple punishments for one offense. The appropriate analysis, therefore, requires this Court to determine whether cumulative punishments were intended by the legislature. Id. This determination depends on the “unit of prosecution” intended by the legislature. Id.; see also State v. Sanchez, 186 S.W.3d 260, 267 (Mo. banc 2006).

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