This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Shawn James Simons,
Filed February 6, 2007
Clay County District Court
File No. K7-04-1401
Lori Swanson, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Brian J. Melton, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for respondent)
John M. Stuart, State Public
Defender, Sean Michael McGuire, Assistant Public Defender,
Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
challenges his conviction of two counts of possession of pornographic work involving
minors in violation of Minn. Stat. § 617.247, subd. 4 (2004), claiming
that the evidence was insufficient to sustain his conviction, that section
617.247 is unconstitutional, that there were repeated discovery violations, and
that his sentences violate Minn. Stat. § 609.035, subd. 1 (2004), and the
Supreme Court’s decision in Blakely v.
On August 19, 2003, appellant Shawn Simons called 911 to request that a police officer come to his house because he had downloaded “some really sick things on the [web]site.” Officer Brad Stuvland was dispatched to Simons’s residence to investigate. Simons told Officer Stuvland that he used a program called Kazaa-Lite to download pornography and that after he had downloaded one video, he saw that it was titled “Father Having Sex with 14-year-old Daughter.” After learning more details of the video, including the apparent age of the minor, Officer Stuvland obtained a search warrant and seized the computer.
After his computer was seized, Simons voluntarily appeared for an interview with Detective Porter, a juvenile investigator. At this interview, Simons described several of the videos that he had downloaded, including one involving a female minor and an adult male. Simons described the minor’s approximate age and skin color, as well as other details of the video. Simons stated that he did not “know how many times [he] had to watch it” but that he “had to watch it to find out what . . . was going on.” In addition to this video, Simons described three other videos that he may have downloaded and subsequently deleted an additional ten or eleven clips.
of Simons’s admissions, Detective Porter decided against sending the computer
to the Bureau of Criminal Apprehension for forensic analysis. Instead, Detective Porter asked an employee of
After Detective Porter recovered the two videos, Simons returned for another interview. When confronted with descriptions of the two videos, Simons stated that he had previously described one of the videos to Detective Porter. Simons then described details of the second video, including the fact that the minor appeared to be 11 years old. On July 16, 2004, Simons was charged with two counts of possession of pornographic work involving minors, in violation of Minn. Stat. § 617.247, subd. 4 (2004).
Before trial, Simons moved for an order directing the state to provide him with a copy of a forensics report regarding the contents of his hard drive that included the names and “technical properties” of all files. The state, apparently reading Simons’s motion as a request for a copy of the hard drive, objected—arguing that although it would “gladly allow the Defense . . . to review the contents of the . . . computer at the police department,” it was not obligated to create a copy of contraband. The district court denied Simons’s motion, ruling that the state satisfied its legal obligation when it made the hard drive available for inspection.
Simons waived a jury trial. At the bench trial, the state offered evidence of Simons’s interviews with Detective Porter, as well as the videos. The defense presented the testimony of Simons, his wife, his mother, and his mother-in-law, and an expert witness who testified that Simons suffered from “neurodeterioration,” a condition that causes Simons to have a high-level of impulsivity. The expert testified on cross-examination that Simons also displayed a relatively high level of addiction to online pornography and that it would be difficult for him to resist viewing “even more deviant” materials.
The defense called Detective Michael Detloff, who had recently completed training in computer forensics. Detective Detloff testified that Detective Porter did not use proper techniques when he directed an examination of Simons’s hard drive. Specifically, Detective Detloff testified that the technical properties for each file include the date on which the file was created on the hard drive, and the dates on which the file was last modified and accessed. Because of Detective Porter’s investigation, Detective Detloff testified, the dates recorded by the computer for the last time the suspect files had been accessed were altered. A defense expert later confirmed Detective Detloff’s testimony, although both the defense expert and Detective Detloff testified that they had no reason to doubt the validity of the dates recorded by the computer for when the files at issue were initially created on Simons’s hard drive.
The district court found Simons guilty on both counts. Specifically, the district court found that Simons “knowingly and intentionally viewed and then downloaded” a video that illustrated “a young girl, approximately 7-10 years of age” engaged in sexual activity. The district court further found that Simons “knowing and intentionally viewed and then downloaded and possessed . . . a short video” of a “young pre-adolescent girl who appears to be approximately 11 years of age” engaged in an act of bestiality. The district court sentenced Simons to concurrent, stayed sentences of 15 and 17 months. This appeal follows.
D E C I S I O N
Simons first argues that the evidence was insufficient to support his conviction. In particular, Simons argues that the state failed to prove beyond a reasonable doubt that actual minors were depicted in the videos. Simons also argues that the state failed to prove beyond a reasonable doubt that he “possessed the images knowing their content.”
considering a claim of insufficiency of the evidence, we painstakingly review
the record to determine if the evidence, when viewed in the light most
favorable to the conviction, permitted the fact-finder to find the defendant
guilty. State v. Webb, 440 N.W.2d 426, 430 (
Simons makes three arguments that the evidence is insufficient to show that actual minors were depicted in the videos. First, Simons argues that the district court did not find that the videos depicted minors. Second, Simons argues, even if the district court did find that the videos depicted actual minors, the district court’s findings of fact are insufficient because the district court made that determination without the aid of expert witnesses or evidence of the identities of the persons depicted. Finally, Simons argues that even if the district court were permitted to determine the age of the persons depicted, the evidence does not support those findings.
Contrary to Simons’s first argument, the district court found that the videos depicted actual minors, finding specifically that one “illustrates a young girl, approximately 7-10 years of age,” while the other “illustrates a young pre-adolescent girl who appears to be approximately 11 years of age.” While the district court may not have identified the precise ages of the persons depicted, it did find that the videos depicted minors, which satisfies the statute. See Minn. Stat. § 617.246, subd. 1(b) (2004) (defining “minor” for the purpose of the statute as any person under the age of 18).
next argues that “[i]dentifying the correct age of a subject in a video clip
that may be intended to fool the viewer into believing the subject is a minor
is not something that should be left to the opinions of the jury or the court.”
Simons argues that the Supreme Court’s
decision in Ashcroft stands for the
proposition that either expert testimony or evidence of the person’s identity is
required to establish that the person depicted is, in fact, a minor. Ashcroft
did acknowledge the government’s argument that even an expert would have
difficulty distinguishing “real” child pornography from “virtual” child
pornography, and the Court ultimately concluded that only pornography
exhibiting actual minors fell outside the protection of the First Amendment. Ashcroft,
the parties have cited no
Finally, Simons argues that even if the fact-finder may determine the age of the persons in the videos, “the evidence submitted was too unclear to permit any sound findings beyond a reasonable doubt as to the age of the females depicted in the video clips.” Before reaching its decision, the district court reviewed the two videos. And while the district court’s findings do not accurately describe the length of the videos and the videos are admittedly of poor quality, its findings as to the ages of the persons depicted are supported by the record. Based on the videos, a reasonable fact-finder could have concluded that the persons depicted were, in fact, minors.
Simons next argues that the evidence was insufficient to prove beyond a reasonable doubt that he “possessed the images knowing their content.” Minn. Stat. § 617.247, subd. 4(a), requires the state to prove that the defendant knew or had reason to know of the content and character of the alleged contraband. See also Fingal, 666 N.W.2d at 426 (noting that “those who neither knew nor had reason to know that a site contained child pornography or depicted real children would not be at risk”). But Simons described in detail both of the videos he was charged with possessing, stating that one, in his opinion, depicted “an eleven year old” that he “watched more than once” so that he could “find out what . . . was going on,” while the other depicted “a girl.” We conclude that the evidence was sufficient to support the district court’s finding that Simons possessed the two videos with knowledge of their content.
next argues that Minn. Stat. § 617.247, subd. 4(a), is unconstitutional
because it shifts the burden of proof of the age of the person depicted to the
defendant and because, unlike its federal counterpart, it does not contain an
“innocent downloader” exception. But
Simons did not raise the constitutionality of section 617.247 in the district
court, and his argument is, consequently, waived. State v.
Engholm, 290 N.W.2d 780, 784 (
next argues that the state violated discovery rules by not permitting him
reasonable access to the hard drive and by denying him the opportunity to have
an expert present when his computer was tested. Whether a discovery violation has occurred is
a question of law, which this court reviews de novo. State v.
Colbert, 716 N.W.2d 647, 654 (
the Minnesota Supreme Court has recognized, “Pretrial discovery rules fulfill
an essential role in the criminal justice system.” State v.
Lindsey, 284 N.W.2d 368, 372 (
Simons’s first argument that he was
denied reasonable access to the hard drive is unpersuasive. In its order addressing discovery, the
district court specifically found that the state had “already indicated that it
[would] make all contents of the defendant’s computer available for the defense
expert or defense counsel to review.” And
the record shows that Simons’s expert could have come to the
argument that the state did not permit a qualified expert to observe Detective
Porter’s investigation fails in light of the text of the rule. Minn. R. Crim. P. 9.01, subd. 1(4), provides
that if the state’s tests preclude further testing by the defense, the state
must permit a defense expert to observe the testing. But the supreme court has held that the rule
is restricted to a presently charged defendant. State v.
Bailey, 677 N.W.2d 380, 397 (
Simons next argues that the prosecutor
committed misconduct during her closing argument. Simons acknowledges that he made no objection
to the prosecutor’s closing argument. Unobjected-to
prosecutorial misconduct is analyzed under the plain-error standard. State v.
Ramey, 721 N.W.2d 294, 299 (
Parties have considerable discretion
in determining the content of their closing arguments and are free to make all
legitimate arguments on the basis of all proper inferences from the evidence
introduced. State v. Smith, 541 N.W.2d 584, 589 (
is true that it may be misconduct for a prosecutor to call the defendant a
liar. Laughnan v. State, 404 N.W.2d 326, 331 (
Simons argues that the district court’s concurrent sentencing on his offenses violates Minn. Stat. § 609.035, subd. 1 (2004), because both offenses arose out of a single behavioral incident. But this court has expressly held that images of child pornography depicting multiple minors fall within the judicially created “multiple-victims exception” to section 609.035 because each depicted minor is a victim. State v. Rhoades, 690 N.W.2d 135, 139 n.5 (Minn. App. 2004). At sentencing, the district court stated that “there’s two young girls on those videotapes.” We also note that Simons received the sentence that defense counsel argued for.
also argues that his sentence violates the rule in Blakely v. Washington, 542
We conclude that the evidence is sufficient to support Simons’s conviction, that the state did not violate discovery rules, that the asserted misconduct in the prosecutor’s closing argument did not constitute plain error, that Simons’s sentence does not violate section 609.035, and that his remaining arguments are waived. We therefore affirm the district court.