State v. Zabrinas, 82,430.
| Decision Date | 01 June 2001 |
| Docket Number | No. 82,430.,82,430. |
| Citation | 271 Kan. 422,24 P.3d 77 |
| Parties | STATE OF KANSAS, Appellee, v. DAVID ZABRINAS, Appellant. |
| Court | Kansas Supreme Court |
Kirk C. Redmond, special appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the briefs for appellant. David Zabrinas, appellant was on a separate brief pro se.
Ellen H. Mitchell, county attorney, argued the cause, and Christina Trocheck, assistant county attorney, and Carlo J. Stovall, attorney general, were with her on the briefs for appellee.
The opinion of the court was delivered by
This is David Zabrinas' direct appeal of his conviction of one count of sexual exploitation of a child, K.S.A. 21-3516, a severity level 5 person felony, for which he was sentenced to 256 months in prison.
Zabrinas, through the appellate defender, contends (1) K.S.A. 21-3516 is facially overbroad in violation of the First Amendment to the United States Constitution because it criminalizes "exhibition in the nude" of children under age 16 and has no scienter requirement, (2) his statements were erroneously admitted, (3) the court erred in failing to excuse a juror for cause, (4) the court erred in failing to instruct that the jury must unanimously agree which acts support the conviction, and (5) he was erroneously sentenced by using the same prior conviction in both the criminal history score and as the basis for the persistent sex offender enhancement. Zabrinas argues in a pro se brief that (6) the trial court was required to instruct on promoting obscenity as a lesser included offense, and, (7) there was insufficient evidence for the jury to convict him of sexual exploitation of a child.
Our jurisdiction is pursuant to K.S.A. 20-3018(c) ().
Statement of facts
From late 1995 to October 1996, Zabrinas was employed as an assistant manager in a Salina restaurant where he performed part of his managerial duties on a computer in the back office. In June 1996, Zabrinas created an internet account with America Online (AOL), taking the screen name of "DZ100."
At the trial, a restaurant cook testified Zabrinas showed him AOL internet images of women having sex. The cook noted Zabrinas was "excited" when showing the pictures, and while he did state that all of the females were over the age over 18, he admitted that some were "flat chested." Another cook was with Zabrinas when he spent some late hours on the internet using AOL. He saw Zabrinas download to computer memory and print images of one woman having a young face and the body of an older woman.
During this time, F.B.I. Special Agent Daniel Chadwick was working on an internet project called Innocent Images. He testified concerning AOL "chat rooms." In September 1996, Agent Chadwick was monitoring an AOL chat room called "Preteen." Preteen is a private chat room that does not show up on a directory search. It can only be entered by individuals who know its name or accidentally access it. F.B.I. agents had determined the preteen chat room was being used to trade child pornography. While in "`Preteen," Agent Chadwick noticed the screen name "DZ100" was present during a conversation about trading a well-known child pornographic series. The chat room activity was recorded and introduced at trial.
After someone suggested beginning a Preteen list, DZ100 requested to be on the list. Agent Chadwick testified that he received a file from DZ100 with a message "Hairless" attached, showing an image of a girl lying down with her breasts and genital area showing. Jane Marie Peterson, an advanced practice nurse, testified that by using the Tanner Scale, a scale used in medicine to determine the age of children based on sexual development, she had estimated the age of the girl to be 10 to 11 years old.
Zabrinas does not challenge on appeal the sexually explicit nature of the pictures. It is clear from the record that all the images and photographs depict children, and sometimes adult males with children, engaged in sexually explicit conduct. The graphic nature of each individual visual image need not be discussed, but the evidence was clear from the testimony of Peterson that all the children involved ranged from 5 to 14 years of age.
Late in the evening on October 6 and into the early morning of October 7, 1996, several sexually explicit pictures of minors were sent to DZ100 while he was in the Preteen chat room. The manager of the restaurant where Zabrinas worked testified that approximately at the same time on October 7, 1996, as the pictures were sent to DZ100, he drove by his restaurant to make sure that necessary "paper work" was properly entered in the computer. The manager noticed Zabrinas' car in the parking lot, and after entering the business caught Zabrinas looking at nude women on the computer with a pornographic image being printing as he entered. The manager testified Zabrinas panicked and "turned a whole bunch of different colors." He was asked by the manager to leave the premises but spent an additional 20-30 minutes on the computer during which time the manager believed he was deleting files from the computer. The manager testified that when Zabrinas was finished he removed a floppy disk from the computer and put it in his pocket. On March 20, 1997, Agent Ronald Hagen of the K.B.I. and Special Agent Scott Crabtree of the F.B.I. executed a search warrant on Zabrinas' Salina residence. Several items were seized, including a computer disk that contained sexually explicit images of children under the age of 16. Zabrinas was not present during the search and later attempted to contact the police to determine what had been taken. Later that day, the two agents went to Zabrinas' residence with an inventory list.
Zabrinas was never taken into custody. He asked what was taken, and the agents told him that they were investigating child pornography and took computer disks from his house. Zabrinas invited the agents in and told them that he had an attorney, but that he wanted to tell them his side of the story. He admitted to using the computer at his employment to receive child pornography under the name DZ100, and he admitted sending pictures to others, but he said that he erased everything as soon as it came in. He also admitted to downloading some of the files to disk, but stated that he did so only to throw the disks away. He admitted to using the computer after work and mentioned a chat room called Preteen. He admitted some of the images that he saw on the internet were those of children. During the interview, his wife advised him to call an attorney, but he refused.
Agent Crabtree testified that after entering Zabrinas' home and being told by Zabrinas that he wanted to talk despite his attorney's warnings, the agents told Zabrinas that he would not be prosecuted federally for this crime. Agent Crabtree specifically stated Zabrinas was never told that he would not be prosecuted under state law. The agents admitted that some "how to" type questions were asked.
Zabrinas was charged with one count of sexual exploitation of a child. Prior to trial, he moved to suppress the interview with the agents; however, the motion was denied. During trial, he did not renew his objection at the time of the agent's testimony but did not testify himself and used as part of his theory of defense the statements that he gave to the agents during the interview. His counsel argued in support of the veracity of the statements that a person who did not think that he was under a threat of federal prosecution would have no motive to lie.
The details of the voir dire of the juror will be discussed relating to that issue.
Zabrinas was convicted and after being found to be a persistent sex offender because of previous convictions was sentenced to 256 months' imprisonment. He appeals. We affirm his conviction but vacate his sentence and remand for resentencing. We discuss the following issues.
Is K.S.A. 21-3516 unconstitutionally overbroad?
K.S.A. 21-3516 states, in relevant part:
Zabrinas raises a two-pronged attack on appeal as to the constitutionality of K.S.A. 21-3516. He first contends, as he did below in his motion to dismiss, that any depiction of a nude child is punishable if evidence can be produced that an accused derived sexual enjoyment from the visual image. Second, he claims for the first time on appeal that the statute has no scienter requirement as to the age of the child depicted, which allows the State to prove only that the child was under 16 years of age and not that the accused knew or should have known the person depicted was under 16 years of age.
Had the scienter argument been raised...
To continue reading
Request your trial
-
State v. Marsh, No. 81,135.
...court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Zabrinas, 271 Kan. 422, 441-42, 24 P.3d 77 (2001). Marsh confessed to the crime of aggravated burglary. He admitted hiding in the Pusch home and shooting Marry in the head......
-
State v. Soto
...question is “whether the defendant's actions could have given rise to multiple counts of the charged crime”); State v. Zabrinas, 271 Kan. 422, 439, 24 P.3d 77 (2001) (“Multiple acts instructions are only necessary where the facts show separate incidents that are factually and legally suffic......
-
State v. Miller
...must satisfy the statutory elements of the crime. See State v. Soto, 299 Kan. 102, 110–11, 322 P.3d 334 (2014) ; State v. Zabrinas, 271 Kan. 422, 439, 24 P.3d 77 (2001) (“Multiple acts instructions are only necessary where the facts show separate incidents that are factually and legally suf......
-
State v. Shingleton
...Tanner scale and gave her opinion that children depicted in materials ranged in age from six years to sixteen years); State v. Zabrinas, 271 Kan. 422, 24 P.3d 77, 80 (2001) (advanced practice nurse testified using Tanner scale and estimated that children in images ranged from five to fourte......
-
Appellate Decisions
...in determining the criminal-history score because none of the conditions for exclusion were met in this case. State v. Zabrinas, 271 Kan. 422 (2001), is distinguished as applying K.S.A. 21-6804(1) before the legislature eliminated the "applicable penalties" language in 2010. Answer in this ......