A05-2121

State of Minnesota,

Respondent,

vs.

Shawn James Simons,

Appellant.

Filed February 6, 2007

Affirmed

Willis, Judge

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, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

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

WILLIS, Judge

Appellant 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. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). We affirm.

FACTS

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.

Because 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 the Clay County information-technology department, who had no training in computer forensics, for assistance. The employee removed the hard drive from Simons’s computer and attached it to a county computer. Using a commercially available file-recovery tool, the employee recovered several files that had been deleted from the Kazaa-Lite folder, two of which, Detective Porter discovered, appeared to contain child pornography.

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.”

When 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 (Minn. 1989). But this court cannot retry the facts. State v. Sheldon, 391 N.W.2d 537, 539 (Minn. App. 1986). On review, we must assume that the fact-finder credited the testimony of the state’s witnesses but discredited any conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). The standard is the same whether the fact-finder is a jury or a district court. State v. Lehikoinen, 463 N.W.2d 770, 772 (Minn. App. 1990). Thus, if the district court, acting with due regard to the presumption of innocence and the state’s burden to overcome that presumption with proof beyond a reasonable doubt, could have found appellant guilty, we will not disturb the verdict. See Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (articulating sufficiency-of-the-evidence standard).

Under Minn. Stat. § 617.247, subd. 4(a) (2004), the state must prove beyond a reasonable doubt that a person depicted in the materials is, in fact, a minor; the minor may not be computer-generated or simulated. See State v. Fingal, 666 N.W.2d 420, 424–25 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003). As the Supreme Court has stated, the age of the person depicted is an “elemental fact because nonobscene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment.” United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S. Ct. 464, 469 (1994); see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002) (invalidating a federal law that criminalized possession of “virtual child pornography” on free-speech grounds).

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).

Simons 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, 535 U.S. at 254-55, 122 S. Ct. at 1404. But the Court did not specify how the state must meet the burden of proving that a person depicted in the materials is an actual minor. See id. Put another way, Ashcroft requires that the state prove the person depicted is, in fact, a minor; it does not require it to meet this burden with expert testimony or evidence of the person’s identity.

While the parties have cited no Minnesota authority directly addressing this issue, and we have found none, we note that several federal courts and courts in other states have held that a conviction need only be supported by the images themselves—no expert testimony is necessary. See, e.g., United States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003); McIntyre v. State, 897 A.2d 296, 311 (Md. App. 2006) (noting that following several federal appellate courts and appellate courts in Ohio and Illinois, it would have rejected the contention, if preserved, that the state was required to present expert testimony). And nothing in section 617.247 requires the state to present expert testimony or evidence of the identity of the person depicted. We, therefore, conclude that it was not necessary that the district court’s finding that the videos depicted minors be supported by expert testimony or evidence of the identities of the persons depicted.

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.

II.

Simons 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 (Minn. 1980). We note, however, that this court has previously considered and rejected both reasons Simons raises in claiming that the statute is unconstitutional. See State v. Fingal, 666 N.W.2d at 426 (noting that “appellants offer no support for the view that state statutes violate due process if they fail to provide the affirmative defenses provided in federal statutes”); State v. Myrland, 644 N.W.2d 847, 851 (Minn. App. 2002) (holding that statute constitutionally places the burden of production on defendant).

III.

Simons 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 (Minn. 2006). But if such a violation occurred, this court will grant a new trial only if there is a reasonable probability that, had the evidence been made available, the outcome of the trial would have been different. Id. at 655. A reasonable probability is a probability that is sufficiently likely that it undermines confidence in the verdict. State v. Wildenberg, 573 N.W.2d 692, 697 (Minn. 1998).

As 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 (Minn. 1979). Minn. R. Crim. P. 9.01 requires a prosecutor to permit the defense to inspect and reproduce “tangible objects which relate to the case.” Minn. R. Crim. P. 9.01, subd. 1(3). And the rule compels the prosecutor to share any results of tests of objects related to the case; permit the defense to conduct reasonable tests of its own; or should the state’s tests preclude further testing, to allow a qualified defense expert to observe the test. Minn. R. Crim. P. 9.01, subd. 1(4).

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 Clay County Law Enforcement Center at any time to examine the hard drive. Simons also argues that the state erred when it did not provide him with a copy of the hard drive or a forensics report. Simons has pointed to no authority to support his argument that the state had to create a copy of the hard drive after it offered him access to the hard drive at the state’s facilities. Indeed, the rule requires only that the state allow the defense “to inspect and reproduce . . . tangible objects.” Minn. R. Crim. P. 9.01, subd. 1(3). Further, the record shows that when a forensics report was created, it was shared with the defense.

Simons’s 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 (Minn. 2004). The computer was examined in August 2003, but Simons was not charged until July 2004. Thus, because Simons was not a presently charged defendant when the computer was examined, rule 9.01, subdivision 1(4), is inapplicable.

IV.

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 (Minn. 2006). Under the plain-error standard, there must be an error that is plain and that affects substantial rights. Id. at 298. If the defendant establishes the first two elements, the state bears the burden of establishing that the misconduct did not affect the defendant’s substantial rights. Id. at 300. If the three elements of the standard are established, then this court must decide if it will address the error to protect the fairness and the integrity of the proceedings. Id. at 298.

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 (Minn. 1996). But a prosecutor’s closing argument should be based on the evidence and should not be calculated to inflame the passions and the prejudices of the jury. State v. Clark, 296 N.W.2d 359, 371 (Minn. 1980). Simons claims that the prosecutor committed misconduct when she called him a “pathological liar,” asserted that Simons possessed several pornographic videos that were not in evidence, and argued that Simons was a “sexual deviant.” Simons further claims that the prosecutor mischaracterized the elements of the offense by claiming that the state did not need to conduct a proper forensics examination.

It 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 (Minn. App. 1987), review denied (Minn. June 9, 1987). Similarly, arguing facts intended to inflame the fact-finder and misstating the law are both misconduct. Ramey, 721 N.W.2d at 300; see State v. Jolley, 508 N.W.2d 770, 772-73 (Minn. 1993). But Simons testified that he in fact did lie to Detective Porter during the two interviews. In addition, there was evidence of additional videos that were not in evidence: Simons described them to Detective Porter during their two interviews. And Simons himself introduced evidence of his sexual history through an expert witness who testified that Simons had a relatively high level of addiction to pornography; this same expert testified that there was a high probability that Simons would have difficulty resisting the impulse to view “even more deviant” materials. Finally, we fail to see how the prosecutor’s argument that because of Simons’s admissions, the state did not need to send the computer for forensic analysis is a misstatement of the elements of the offense. We further note that this was a bench trial, and the district court was presumably aware of the elements of the offense. Thus, we conclude that there was no plain error.

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.

Simons also argues that his sentence violates the rule in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Under Blakely, the presumptive sentence is the maximum sentence the judge may impose solely on the basis of the verdict or the facts admitted by the defendant. See State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005) (applying Blakely to Minnesota sentencing guidelines). The district court determined that the charged offense is severity-level III, and that assignment of a severity level is not challenged on appeal. See State v. Bertsch, 707 N.W.2d 660, 666 (Minn. 2006) (noting that possession of child pornography is unranked and that district court must assign unranked offenses a severity level). In light of Simons’s criminal-history score of 2 on the first count and 3 on the second count, the presumptive sentences were 15 months and 17 months, respectively, both stayed, which are the sentences that Simons received. Thus, Blakely is not implicated.

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.

Affirmed.