Opinion
NO. 2012-CA-001616-MR
05-30-2014
GARY D. NICHOLS, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS AND ORAL ARGUMENT FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 08-CR-00193
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. TAYLOR, JUDGE: Gary D. Nichols, Jr., brings this appeal from a September 17, 2012, judgment of the Marshall Circuit Court upon a conditional plea of guilty to seven counts of possession of a matter portraying sexual performance by a minor. We affirm.
On November 17, 2008, appellant was indicted by a Marshall County Grand Jury upon seven counts of possession of matter portraying a sexual performance by a minor in violation of Kentucky Revised Statutes (KRS) 531.335. Subsequently, appellant filed a motion to suppress evidence seized from the residence of appellant's girlfriend, Ashley Bristow. Specifically, appellant sought suppression of a shoe box and laptop computer bag that belonged to him and was seized from Bristow's residence upon her consent. After an evidentiary hearing, the circuit court denied the motion to suppress by order entered October 7, 2011.
Gary D. Nichols, Jr., was actually indicted upon ten counts, but three counts were dismissed by the Commonwealth of Kentucky.
Appellant also filed a motion to dismiss multiple counts of the indictment upon the basis of double jeopardy. Appellant argued that all counts arose from a single course of conduct and that he should have only been indicted upon one count of possession of matter portraying a sexual performance by a minor. By order entered July 13, 2012, the circuit court denied the motion and held that each separate photo portraying a minor in a sexual act constituted a separate and distinct violation of KRS 531.335.
The Commonwealth then filed a motion to introduce evidence of prior bad acts at trial under Kentucky Rules of Evidence (KRE) 404(b). The Commonwealth wished to introduce prior criminal convictions of appellant involving sexual advances or acts with minor boys. Appellant sought to preclude the Commonwealth from introducing such evidence and filed motions accordingly. By order entered July 23, 2012, the circuit court concluded that the prior criminal convictions were admissible under myriad exceptions contained in KRE 404(b).
Eventually, appellant entered a conditional plea of guilty to seven counts of possession of matter portraying a sexual performance by a minor and was sentenced to a total of eleven-years' imprisonment. Kentucky Rules of Criminal Procedure (RCr) 8.09. This appeal follows.
In his conditional guilty plea, appellant preserved three issues for appeal: (1) whether the circuit court erred by denying his motion to suppress evidence, (2) whether the circuit court erred by granting the Commonwealth's motion pursuant to KRE 404(b), and (3) whether the circuit court erred by denying his motion to dismiss six of the seven counts of the indictment as violative of double jeopardy. We address each seriatim.
I. MOTION TO SUPPRESS
When reviewing the circuit court's ruling on a motion to suppress under RCr 9.78, the circuit court's findings of fact are deemed "conclusive" if supported by substantial evidence of a probative value. We, however, review issues of law de novo. Welch v. Com., 149 S.W.3d 407 (Ky. 2004).
In its October 7, 2011, order denying the motion to suppress, the circuit court made the following findings of fact:
1. On or about October 26, 2008, Detective Dan Melone, of the Marshall County Sheriff's Office, learned of criminal charges pending against [appellant] in McCracken County, Kentucky. Those charges related to the sexual solicitation of a minor male, and the Sheriff's office further learned [appellant] had been living in Marshall County, Kentucky. Further investigation led Detective Melone to discover [appellant] had been staying in Ashley Bristow's apartment; located in Calvert
City, Kentucky, on a somewhat regular basis and that Ms. Bristow's minor child also resided in the apartments.
2. On October 29, 2008, Melone and Detective Matt Hilbrecht, also of the Marshall County Sheriff's Office, met with and interviewed Ms. Bristow at her place of employment. During the interview Ms. Bristow confirmed [appellant] had been staying at her apartment but was unaware of any sexual acts or advances made toward her minor child or of [appellant] possessing any pornographic images [of] minors. However, Ms. Bristow further stated [appellant] regularly used her computer and had brought some other items to her apartment and left them there. Ms. Bristow stated [appellant's] father came by her apartment sometime after [appellant's] arrest and retrieved [appellant's] wallet and cell phone. Ms. Bristow agreed to allow police officers to search her apartment and computer when she finished working that afternoon.
3. Sometime around 4 p.m. on October 29, 2008, at the instruction of Melone, Deputy Dennis Lewis, of the Marshall County Sheriff's Office, traveled to the apartment of Ms. Bristow to conduct a search. Upon arrival, Deputy Lewis waited outside Ms. Bristow's apartment, allowing her to take her child next door, and when Ms. Bristow returned Deputy Lewis provided her with a written "Permission to Search" form, which was entered into evidence as "Commonwealth's Exhibit 1." Deputy Lewis asked Ms. Bristow to read the form and also went over the form with Ms. Bristow, which specifically provides in part "... I further authorize said officers to remove from my residence, real estate and/or motor vehicle, whatever documents and items of property whatsoever which they deem pertinent to their investigation, ...". Ms. Bristow voluntarily signed the permission to search form and granted Deputy Lewis access to her apartment for that purpose. Deputy Lewis was in the process of, or had, retrieved Ms. Bristow's computer when Ms. Bristow advised Deputy Lewis that a black laptop bag, lying open on the floor beside the computer, as well as a shoe box, were both items [appellant] had brought to her apartment, that she did not
want them and planned to throw them away unless Deputy Lewis wanted to take them with him. Deputy Lewis contacted Detective Melone to inquire whether to take the black bag and shoe box, and was subsequently advised by Detective Melone to seize both items, which Deputy Lewis did. Evidence discovered inside the black bag, at the Marshall County Sheriff's Office, were, in part, of the basis for the pending charges against [appellant].
Appellant contends that the evidence obtained from the laptop bag and the shoe box should have been suppressed because appellant possessed a legitimate expectation of privacy in those items. Specifically, appellant maintains that Bristow did not have common authority over the laptop and shoe box and, thus, could not give consent to search these items.
Appellant also sought to suppress a computer disc found in the laptop computer bag.
The Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution prohibit unreasonable searches and seizures and generally mandate that a search warrant is required to search a home. There are recognized exceptions to the warrant requirement, and consent to search is one such exception. Consent to search may be obtained from the owner of property or from a third party if that third party possesses common authority over the property to be searched. U.S. v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d. 242 (1974); see also Com. v. Nourse, 177 S.W.3d 691 (Ky. 2005).
In the case at hand, it is clear that Bristow had rented the apartment as a tenant and that appellant was an occasional overnight guest. The seized items of personal property (the laptop and shoe box) were located in Bristow's bedroom and specifically in or near a computer desk belonging to Bristow. Upon these facts, we believe it clear that Bristow possessed common authority over the laptop bag and shoe box and that her consent to search was valid. Matlock, 415 U.S. 164. We, thus, reject appellant's contention that the circuit court erred by denying his motion to suppress.
II. KRE 404(b) EVIDENCE
The Commonwealth filed a motion to introduce evidence of appellant's past criminal convictions under KRE 404(b). At trial, appellant responded in opposition and argued that such evidence was inadmissible under KRE 404(b).
The evidence sought to be introduced was:
Other Crime, Wrong or Act #1: [Appellant] pled guilty to a total of two (2) counts of the offense of "Taking Indecent Liberties with Children", [sic] in violation of North Carolina General Statute 14-202.1, before the Davie Superior Court, Case No, 01-CRS-050738 and Case No. 01-CRS-050757, State of North Carolina v. Gary Dean Nichols. The facts of the investigation leading to the guilty plea of [appellant] in the above mentioned case are set out in the Incident/Investigation Reports of the Davie County North Carolina Sheriff's Office. . . . (Citations omitted.)Commonwealth's supplemental notice at 1-3.
. . . .
Other Crime, Wrong or Act #2: [Appellant] pled guilty and/or was convicted of multiple counts of the offense of "Taking Indecent Liberties with Children", [sic] in violation of North Carolina General Statute 14.202.1. [B]efore the, Forsyth Superior Court Case No, 04-CRS-056337 and Case No. 04-CRS-056338, State of North Carolina v. Gary Dean Nichols. Also, the
documents contained herewith as Exhibit "I" relate to the investigation and prosecution of [appellant] in the aforementioned Forsyth Superior Court Case. (Citations omitted.)
Other Crime, Wrong or Act #3: [Appellant] pled guilty to the offense of "Prohibited use of electronic communication system to procure minor/peace officer posing as a minor to engage in a sexual offense", [sic] in violation of KRS 510.155(1), in McCracken Circuit Court, Case No, 08-CR-00517, Commonwealth of Kentucky v. Gary Dean Nichols. Additionally, and included as part of this other crime, wrong or act referenced herein, are the actions of [appellant] that led to the investigation and ultimately the conviction of the abovementioned offense in McCracken County, which are set forth in the written statement of the victim that [was] provided to the McCracken County Sheriff's Office, and [is] attached herewith as Exhibit "J". Also attached herewith and made a part hereof, are the Uniform Citation, KYIBRS Report and Written Report prepared by Sgt. Daryl Carr, which are attached herewith as Exhibit "K" - "M" respectively.
In granting the Commonwealth's motion, the circuit court concluded that evidence of appellant's past criminal convictions was admissible to demonstrate motive, plan, and knowledge as provided under KRE 404(b) as follows:
MOTIVE
Evidence of prior crimes or bad acts may have a probative value in showing that a defendant had motive to commit a subsequent crime. In determining if prior crimes evidence is admissible, three separate inquiries should be addressed: (1) relevance, (2) probativeness, and (3) prejudice. If the evidence is found to be relevant, its probativeness and prejudice
should then be weighed to determine if the evidence should be admitted. Matthews v. Commonwealth, 163 S.W.3d 11, 19 (Ky. 2005); see also Bell v. Commonwealth, 875 S.W.2d 882 (Ky. 1994).
This evidence is relevant to this case in that the subject of the pornographic images is similar to the subject of the defendant's past convictions, specifically that the images are allegedly depict minor boys. Whether the boys in the photographs appear to be minors is an issue of fact to be resolved by a jury. The issue of weighing the probativeness and prejudice of the prior convictions is more difficult to resolve.
The Commonwealth contends that the prior convictions prove that the defendant has a sexual inclination toward minor boys. Therefore, of all the people inside the residence where the photographic evidence was discovered, he is the resident most likely interested in possessing such photographs. In fact, the defendant has admitted he possessed the images but contests whether the images depict minor boys. This evidence is probative of the Commonwealth's position that the defendant was motivated to possess the images because of his sexual attraction toward minor boys and therefore the images are more likely minor boys.
The defendant argues that the evidence of his past convictions is irrelevant to the instant case and highly prejudicial. The Commonwealth must prove that the defendant had "knowledge of [the images] content, character, and that the sexual performance is by a minor ..." and that he "knowingly has in his ... possession or control any matter which visually depicts an actual sexual performance by a minor person." In other words, the defendant must know of the photograph's nature and know that he is in possession of it. The defendant argues that this is a simple case of possession, that he either possessed the images or did
not, and that if he did possess them, that they depict minors engaged in a sexual performance. Any evidence of his prior convictions has no relation to the elements of the instant case or the Commonwealth's ability to prove the crime.
It is in the trial courts' discretion whether to allow 404(b) evidence or to exclude it. In this case, the similarities between the defendant's past convictions and the subject of the photographic evidence (young/minor boys) outweighs any prejudice the defendant might receive in having this evidence introduced. The evidence goes to show that the defendant had the motivation to possess photographs of that nature and therefore would be admissible under 404(b).
While the court is only required to identify only one other purpose for the admission of 404(b) evidence, other purposes, both identified and unidentified by the Commonwealth, will be discussed.
PLAN
"In determining whether prior bad acts should be admitted, [the Supreme Court of Kentucky] has placed emphasis upon common facts, and has held that the facts of the prior bad acts must be so similar, as to indicate a reasonable probability that the acts were committed by the same person." Commonwealth v. Maddox, 955 S.W.2d 718, 722 (Ky. 1997). "Common facts rather than common criminality are the keystone of such an examination. The real question is whether the method of the commission of the other crime or crimes is so similar as to indicate a reasonable probability that the crimes were committed by the same person. If it does, evidence that the defendant committed the other crime is admissible to show intent, motive or common plan. If it only tends to show a disposition to commit a crime, the evidence is not admissible." Lear v. Commonwealth, 884 S.W.2d 657, 659 (Ky. 1994).
In Howard v. Commonwealth, the Kentucky Court of Appeals held admissible evidence of a defendant's attempt to sell marijuana to an undercover police officer four months after he was indicted for trafficking in marijuana. The court stated that this was evidence of a "crime similar to, clearly connected with, and not too remote from the one charged" and therefore evidence of a "plan, scheme or system" and could be considered by the jury. Howard v. Commonwealth, 787 S.W.2d 264, 266 (Ky. App. 1989).
Application of these rules of law is difficult in this case. On the one hand, the defendant's prior convictions for lewd conduct with minor boys and attempting to entice a minor boy for a sexual offense over the internet would seem to suggest that the material that he has admitted to possessing most likely depicts minor boys in sexually explicit situations, thus establishing a common scheme or plan. Also, the defendant's conviction for Prohibited use of electronic communication system to procure minor/peace officer posing as a minor to engage in a sexual offense could be considered similar to, clearly connected with, and not too remote from the one charged (Possession of matter portraying a sexual performance by a minor).
On the other hand, it is possible to view the proposed evidence as what the defendant calls "propensity" or a "lustful inclination" to commit certain crimes. This would lean toward the evidence not being admissible because it may only show a disposition to commit a crime. Clearly from the defendant's past convictions, he has a "lustful inclination" or "propensity" to be sexually attracted toward young boys. The question the court must answer is whether the evidence of the past convictions has a probative value that outweighs the prejudice to the defendant. Is [sic] so, the evidence should be allowed, and if not, it should be excluded.
The similarities between the defendant's past convictions with his current charge provide an amount of probative value that outweighs the prejudice to the defendant, though this is only slight. Therefore, this evidence goes to support proof of a plan or common scheme by the defendant, that being sexual arousal by and interest in minor boys.
KNOWLEDGE
KRE 404(b) evidence may be allowed to show that the defendant possessed certain knowledge regarding the pending crime. This is likely an important topic due to the statute that makes possession of matter portraying a sexual performance by a minor unlawful requiring proof of the defendant having knowledge of two separate elements. Under the Bell test, evidence of past conduct can be relevant to show that the defendant had a particular knowledge relating to the crime charged. Meece v. Commonwealth, 348 S.W.3d 627, 663 (Ky. 2011).
In Meece, the Supreme Court of Kentucky found evidence (a human silhouette target shot by defendant) of a murder defendant's ability, knowledge, and competency with pistols and shooting them admissible under KRE 404(b). The Court explained that the Commonwealth had the right to display the defendant's particular manner of firing at a target and his skill in doing so. Id. at 663.
Similar to Meece, the convictions of the defendant in this case could be seen as an indication that the defendant possessed knowledge of the content of the photographs that he has admitted to possessing. The defendant is claiming that the images do not depict minor boys. His past convictions would suggest that the defendant would only be interested in possessing images of minor boys, and if not in fact minor boys, then the images appear to depict minor boys, which is still a violation of the statute.
Turning to the defendant's argument that his prior convictions may prejudice a jury into seeing the images as depicting minor boys when, without information on the past convictions, they may decide on the contrary, requires application of the Bell test to decide if that evidence should be admitted. Bell, 875 S.W.2d at 889.
Is the other crimes evidence relevant for some purpose other than to prove the criminal disposition of the accused? The other crimes evidence, as mentioned above, goes to show that the defendant likely had knowledge that the images depicted, or were meant to depict, minor boys. It goes further than proving any criminal disposition, it proves a disposition toward sexual attraction of minor boys and seems relevant.
Is evidence of the crime sufficiently probative to warrant its introduction into evidence? Again, the evidence shows the defendant's affinity for minor boys. With three prior convictions, all of which involving sexual conduct, contact or enticement of minor boys, a jury could reasonably conclude that the images that resulted in the defendant receiving these charges show minor boys.
Does the potential for prejudice from the use of other crimes evidence substantially outweigh its probative value? There is no doubt that the other crimes evidence the Commonwealth is seeking to introduce is significantly prejudicial to the defendant. The test for the court, however, is whether that prejudice substantially outweighs the probativeness of the evidence. The Commonwealth must prove that the defendant knew that the photographs he possessed depicted sexual performances by a "minor person." When weighing the past convictions that involve minor boys with the prejudice of those convictions, and keeping in mind what the Commonwealth is required to prove,
the court finds that the prejudicial nature of this evidence does not "substantially outweigh" the probativeness of the evidence.
As a result, this evidence is admissible to show that the defendant had knowledge of the content of the photographs.
Upon thorough review of the circuit court's order and its extensive legal analysis, we agree with the circuit court's reasoning and cannot say that it abused its discretion by granting the Commonwealth's motion under KRE 404(b).
We also express doubt that an issue relating to the admissibility of evidence under Kentucky Rules of Evidence 404(b) may be properly preserved for appellate review per Kentucky Rules of Criminal Procedure 8.09.
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III. DOUBLE JEOPARDY
Appellant argues that the Commonwealth unconstitutionally indicted him upon seven counts of possession of matter portraying a sexual performance by a minor. Appellant argues that all counts arose from the same course of conduct and that he should only have been indicted upon one count of possession of matter portraying a sexual performance by a minor. By indicting appellant upon seven counts, appellant maintains that the Commonwealth violated the constitutional prohibition against double jeopardy.
KRS 531.335 defines the offense of possession of matter portraying a sexual performance by a minor as follows:
(1) A person is guilty of possession or viewing of matter portraying a sexual performance by a minor when, having knowledge of its content, character, and that the sexual performance is by a minor, he or she:
(a) Knowingly has in his or her possession or control any matter which visually depicts an actual sexual performance by a minor person; or(2) The provisions of subsection (1)(b) of this section:
(b) Intentionally views any matter which visually depicts an actual sexual performance by a minor person.
(a) Shall only apply to the deliberate, purposeful, and voluntary viewing of matter depicting sexual conduct by a minor person and not to the accidental or inadvertent viewing of such matter;(3) Possession or viewing of matter portraying a sexual performance by a minor is a Class D felony.
(b) Shall not apply to persons viewing the matter in the course of a law enforcement investigation or criminal or civil litigation involving the matter; and
(c) Shall not apply to viewing the matter by a minor or the minor's parents or guardians, or to school administrators investigating violations of subsection (1)(b) of this section.
Under KRS 531.335, appellant is guilty if he knowingly possesses any matter visually depicting sexual performance by a minor or intentionally views such matter. Each photographic image that contains a minor engaged in sexual performance constitutes a separate violation of the statute. KRS 531.335 was clearly designed to punish the act of viewing or possessing a photographic image containing a minor engaged in sexual performances.
In the case sub judice, the indictment against appellant was based upon a strip of paper containing three images on it and a computer disc containing four images. All seven images involved different subjects. As appellant was indicted upon seven counts of possessing or viewing seven distinct images involving minors engaged in sexual performances, the seven counts did not arise from a single course of conduct but was based on appellant's distinct actions of possessing and/or viewing seven different images of minors engaged in sexual performances. See Little v. Com., 272 S.W.3d 180 (Ky. 2009). There were seven separate photographic images of minors engaging in sexual performances that formed the bases of the seven counts against appellant. Under this scenario, we cannot say that double jeopardy was offended. See id.
For the foregoing reasons, the judgment of the Marshall Circuit Court is affirmed.
ALL CONCUR. BRIEFS AND ORAL ARGUMENT
FOR APPELLANT:
Kathleen K. Schmidt
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky