This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Bradley Victor Beckman,
Hennepin County District Court
File No. 01078912
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Crippen, Judge.
Appellant Bradley Victor Beckman challenges his conviction of two counts of possessing pornographic work involving a minor, claiming that the trial court wrongfully excluded proof of his defense and erroneously permitted evidence on an issue to which he had stipulated. He also disputes a condition of his probationary supervision that prohibits him from using the Internet. We affirm.
Appellant, who worked as a support analyst for SuperValu, lost his job because he had electronically mailed a corporate directory over the Internet to an unsecured address. Shortly thereafter, a SuperValu employee discovered three zip disks in a file cabinet used by appellant but unlocked and accessible to several employees. SuperValu employees reviewed the contents of the disks and discovered that two of the zip disks contained thousands of pornographic images, many involving minors. SuperValu then notified the Eden Prairie police. The state charged appellant with possession of pornographic work involving a minor, in violation of Minn. Stat. § 617.247, subd. 4 (Supp. 2001).
At trial, appellant sought to introduce out-of-court statements that he complained to his supervisors about someone downloading pornographic images on his computer. Appellant offered these statements to prove that he lacked intent to possess pornography at work. Appellant also sought to introduce evidence to prove that Irwin Archer, one of appellant’s co-workers, had a motive and opportunity to commit the offense. The court sustained the state’s objections to both of these evidentiary items. In addition, appellant offered to stipulate that several pictures constituted child pornography as defined by Minn. Stat. §§ 617.246 (2000), .247. But the prosecutor refused to accept the stipulation and the district court allowed the prosecutor to admit the photos into evidence.
Following his conviction on a jury verdict, the trial court sentenced appellant to the presumptive stayed one-year-and-one-day sentence. The court also placed appellant on probation for three years and ordered him to serve 270 days in the Hennepin County workhouse. As a condition of probation, appellant was prohibited from using the Internet.
Appellant contends that the trial court abused its discretion by excluding out-of-court statements offered to prove appellant’s state of mind at the time of the offense. The trial court has broad discretion in evidentiary rulings, and a reviewing court will reverse only for an abuse of that discretion. State v. Nunn, 561 N.W.2d 902, 906-07 (Minn. 1997). “On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).
The trial court, in a motion in limine, ruled that appellant could not offer out-of-court statements that he had complained to his supervisors about someone downloading pornographic images onto his computer. Evidence in the form of hearsay is generally not admissible. Minn. R. Evid. 802. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c). Out-of-court statements not offered to prove the truth of the matter asserted do not fit within this definition, and are therefore admissible. See id. If an out-of-court statement is offered to prove the truth of the matter asserted, it is only admissible if it falls within an exception to the hearsay rule enumerated in Minn. R. Evid. 803-04.
Appellant argues that he offered the exculpatory evidence to show that he did not intend to possess pornography at work, and that the individual he reported had a motive to “frame” him. Appellant argues that since the evidence is not offered to prove the truth of the matter asserted, i.e., that someone actually downloaded pornographic images on his computer, it is admissible non-hearsay. The trial court rejected that argument, noting that what appellant really wanted to show was that someone was using his computer to download pornography, and that that fact makes it more likely that someone else downloaded the images onto the zip disks. The trial court concluded that it would be naďve to see the purpose of the evidence differently. Thus, the court reasoned that the statement was actually being offered to prove the truth of the matter asserted and was hearsay.
In ruling that the evidence was not admissible, the court cited State v. Taylor, 258 N.W.2d 615 (Minn. 1977). In that case, the supreme court held that the out-of-court statement did not fit into any of the exceptions to the hearsay rule and found that the statement was unreliable because it was self-serving. Id. at 621. The statements made by appellant, in this case, are also self-serving hearsay. In Taylor, appellant made the statements at issue after the commission of the crime but before he was arrested or charged with the crime. Id. at 621-22. Here, appellant made the first complaint before the images were downloaded onto the zip disks. But appellant also made a subsequent complaint after the images were downloaded on the zip disks, but before the disks were discovered. The out-of-court statements here have the same indicia of unreliability as the statements in Taylor. While the statements occurred before the crime had been discovered, they were no less self-serving in an attempt to direct attention away from appellant’s conduct. The trial court did not abuse its discretion in ruling that the statements are inadmissible.
Appellant next contends that the trial court abused its discretion by excluding evidence offered to prove another SuperValu employee’s motive and opportunity to commit the offense. Appellant offered evidence aimed at proving that his co-worker, Irwin Archer, downloaded the images onto the zip disk. Minn. R. Evid. 404(b) allows a defendant to introduce evidence of other crimes or misconduct of a third person to prove that the third person, rather than the defendant, committed the crime charged. Woodruff v. State, 608 N.W.2d 881, 885 (Minn. 2000). Such evidence may include a third person’s motive “or other facts tending to prove the third person committed the crime.” Id. A defendant may offer this evidence not only to show that a third person committed the charged crime, but also “to raise a reasonable doubt as to the defendant’s guilt.” State v. Flores, 595 N.W.2d 860, 868 (Minn. 1999) (citation omitted). But absent proof of facts to connect a third person with the crime, evidence that tends to incriminate another is inadmissible. State v. Hawkins, 260 N.W.2d 150, 159 (Minn. 1977).
Additionally, even if relevant, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” State v. Strommen, 648 N.W.2d 681, 687 (Minn. 2002) (citing Minn. R. Evid. 403).
Appellant contends that the trial court erred in not allowing additional evidence. In an inexact offer of proof, appellant’s counsel said a witness would further testify that he saw Archer viewing adult pornography on his own computer, and that Archer may have used appellant’s computer. Appellant also argues that the trial court erred in not allowing evidence of the reason Archer quit his job. But mere presence at the crime scene is an insufficient foundation for the admission of evidence under Rule 404(b). State v. Harris, 560 N.W.2d 672, 679 (Minn. 1997). In addition, there is an increased need for this type of evidence if the third person is a state’s witness with a possible motive to lie. See Hawkins, 260 N.W.2d at 158. Here, Archer was not testifying for the state.
The limited probative value of this evidence is outweighed by the possibility that it would confuse the issues and mislead the jury. None of the evidence offered by appellant showed that Archer was downloading material from the Internet. In addition, appellant offered no evidence that Archer had ever been seen viewing child pornography or that Archer ever had possession of any zip disks. Thus, the evidence appellant is offering is not helpful in proving that Archer, rather than appellant, downloaded the images onto the zip disks. Because of the limited probative value of the offered evidence, the trial court did not abuse its discretion in ruling this evidence inadmissible.
Appellant also asserts that the trial court abused its discretion by permitting the jury to view a photographic slide show taken from the disks, claiming that the court erred because appellant offered to stipulate that the images constituted child pornography. Generally, a criminal defendant’s offer to stipulate does not take away the state’s right to offer evidence showing guilt. Old Chief v. United States, 519 U.S. 172, 183, 117 S. Ct. 644, 651 (1997). And photographs of a graphic or disturbing nature are not rendered inadmissible because they incidentally may tend to arouse the passion or prejudice of the jury. State v. Durfee, 322 N.W.2d 778, 785-86 (Minn. 1982). But “unduly prejudicial evidence, which is without relevance beyond the defendant’s judicial admission, should not be received.” State v. Davidson, 351 N.W.2d 8, 10 (Minn. 1984) (citation omitted).
In Durfee, the defendant offered to stipulate that the injuries to the victim constituted great bodily harm, as required by the relevant statute, in order to avoid admission of photos of the injuries caused by the defendant. Durfee, 322 N.W.2d at 785-86. The trial court in Durfee ruled that the photos were relevant to show both harm and the defendant’s intent. Id. at 786.
Similarly, in this case, appellant offered to stipulate that the photos constituted child pornography. Here, as in Durfee, the photographs aided the jury not only in deciding whether the photos constituted child pornography, but also in showing whether appellant intended to possess child pornography. The zip disk that contained the child pornography also contained a large number of adult pornographic images, and the large number of images involving minors shows that appellant knew or had reason to know that the disk purposely contained child pornography.
Appellant also argued during closing arguments that someone put the zip disks in his file drawer in retaliation because he complained to his supervisor about someone using his computer to download pornography. In State v. Wiley, 295 Minn. 411, 421, 205 N.W.2d 667, 675 (1973), the defendant offered to stipulate that the quantity of seized marijuana satisfied the amount requirement in the statute, because the defendant feared that the large amount of marijuana would unduly prejudice him. Despite the offer to stipulate, the court admitted the marijuana. Id. The court ruled that the large quantity of marijuana rebutted defendant’s theory that he was framed, because it would not be necessary to use such a large quantity of marijuana to frame the defendant. Id. Similarly, in this case, the large number of photographs tends to rebut appellant’s argument that he was framed. The images shown to the jury were relevant for purposes outside appellant’s offer to stipulate, and for this reason the trial court did not abuse its discretion in admitting the photographs into evidence.
Appellant asserts that the cumulative effect of trial court errors denied him a fair trial. See State v. Post, 512 N.W.2d 99, 102 (Minn. 1994). Because we find that the court did not commit an error, we do not reach this issue.
Finally, appellant claims that the trial court abused its discretion by prohibiting appellant from using the Internet as a condition of his probation. Appellant contends that the condition is not reasonably related to the purposes of sentencing and inflicts a greater deprivation on his liberty than is reasonably necessary. When reviewing a sentence imposed or stayed by a district court, an appellate court does so under an abuse of discretion standard. State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000). While a trial court has broad discretion in sentencing, it is not a “limitless grant of power.” Id. (quoting State v. Warren, 592 N.W.2d 440, 451 (Minn. 1999)). For example, probation conditions “must be reasonably related to the purposes of sentencing and must not be unduly restrictive of the probationer’s liberty or autonomy.” State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989).
Minn. Stat. § 243.055, subd. 1 (2000) specifically states that the state may “prohibit the individual from possessing or using a computer with access to an Internet service or online service without the prior written approval of the commissioner.” There is no Minnesota case law directly on point as to whether the state can deprive someone of Internet access after they have been convicted of possessing child pornography. But the Eighth Circuit court has upheld such restrictions. See United States v. Fields, 324 F.3d 1025, 1027 (8th Cir. 2003); United States v. Ristine, 335 F.3d 692, 696 (8th Cir. 2003).
The trial court has broad discretion in imposing conditions of probation. Franklin, 604 N.W.2d at 82. Here, the court was properly acting within its broad discretion when it prohibited appellant from using the Internet as a condition to his probation. Appellant was found guilty of possessing two zip disks containing child pornography that had been downloaded from the Internet. By denying appellant the use of the Internet, the court acted to prevent him from downloading child pornography in the future. This restriction is reasonably related to the purposes of sentencing. State v. Schwartz, 628 N.W.2d 134, 141 (Minn. 2001). It is significant that the court did not deny appellant the right to use computers completely, but only prohibited appellant from using the Internet. The probation condition was not unduly restrictive of the probationer’s liberty or autonomy. Id.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.