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STATE OF NORTH CAROLINA v. PHILLIP ERVIN HIGGS,
COURT OF APPEALS OF NORTH CAROLINA 2006 N.C.
May 16, 2006, Filed

A Pitt County jury found Defendant Phillip Ervin Higgs guilty of indecent exposure and taking indecent liberties with a child. On 21 April 2005, the trial court entered judgments sentencing Defendant to sixty days imprisonment for the offense of indecent exposure and to a suspended sentence of nineteen to twenty-three months imprisonment for taking indecent liberties with a child.

Whether the trial court committed reversible error in allowing the testimony of Lauren-child witness pursuant to Rule 404(b) of the North Carolina Rules of Evidence?

Observation and Holding:

When evidence of a defendant’s other sex offenses is offered for a proper purpose, “the ultimate test for determining whether such evidence is admissible [under Rule 404(b)] is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403.” State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988). Here, the following similarities exist between the incidents: (1) young females were involved; (2) Defendant was more than thirty years older than each of the females; (3) Defendant offered both females rides in his vehicle; (4) Defendant was involved with each female’s family in that he provided a free home for Lauren’s family and provided assistance with basketball to the child’s brother; (5) Defendant exposed his erect penis to both females while they were in his vehicle; and (6) Defendant told each female not to tell anyone what he had done. Further, one of the incidents of indecent exposure involving Lauren occurred on the same day as the incident involving the child. The other incidents of indecent exposure involving Lauren occurred with within days of the incident with the child.

Defendant does not argue the incidents with Lauren were not sufficiently similar to the incident with the child, nor does he argue the incidents lacked the necessary temporal proximity. Rather, Defendant argues the admission of Lauren’s testimony unduly prejudiced him because Lauren’s direct testimony covered more pages in the transcript than the direct testimony of the child and the acts alleged by Lauren were more egregious than the act alleged by the child. The admission or exclusion of evidence under Rule 403 “is within the sound discretion of the trial court, and the trial court’s ruling should not be overturned on appeal unless the ruling was manifestly unsupported by reason or [was] so arbitrary that it could not have been the result of a reasoned decision.” State v. Hyde, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000) Here, before allowing Lauren to testify, the trial court excused the jury, heard the voir dire testimony of Lauren to determine its substance, and then considered arguments of counsel before overruling Defendant’s objection to the admission of Lauren’s testimony. Further, the trial court gave a limiting instruction to the jury regarding Lauren’s testimony. Although the trial court did not make a specific finding that the probative value of the evidence outweighed its prejudicial effect, the procedure that was followed demonstrated the trial court conducted the balancing test under Rule 403 of the North Carolina Rules of Evidence. As such, we conclude the trial court did not abuse its discretion in allowing Lauren’s testimony.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content.

THE PEOPLE, Plaintiff and Respondent, v. DAVID NAURATH, Defendant and Appellant.
COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT
October 1, 2010, Filed

On June 18, 2007, police responded to a report of marijuana growing in an apartment in Bakersfield, California. Appellant David Naurath resided at the apartment. During the search, police seized evidence of marijuana cultivation, as well as a computer tower, compact discs (CDs), and a computer flash memory drive. The computer was located in the living room of the apartment. On January 18, 2008, appellant entered a plea to a charge of cultivating marijuana. During his search of the computer for evidence of marijuana cultivation, Detective Winslow came across numerous images that appeared to contain child pornography. Appellant was convicted of one count of distributing obscene matter depicting a person under the age of 18 years engaging in or simulating sexual conduct (Pen. Code, § 311.1, subd. (a)).

Issues:

Whether the trial court erroneously failed to give an instruction on attempted violation of Penal Code section 311.1?
Whether the trial court abused its Evidence Code section 352 discretion in admitting into evidence “chat logs” of appellant’s on-line communications with others involving sexual matters?
Whether the prosecutor committed misconduct in his closing argument to the jury?

Observation and Holding:

It is well settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. The material distributed by appellant depicts males who clearly appear to be under the age of 18. Furthermore, even if we were to assume that the court erred in not instructing on attempt, we see no reasonable probability that appellant’s jury would have concluded that none of the distributed images depicted a subject under the age of 18, and therefore we see no reasonable probability that appellant would have obtained a more favorable outcome if an attempt instruction had been given.

Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. The court observed that even though the chat logs hold little probative value in determining whether the defendant knew the age of the males depicted in the images, it is admissible to show that the defendant is the one who sent the images and he had dominion and control over the computer. The fact that the computer was registered to appellant, the fact that the screen name Lookn4ym2love was registered to appellant’s AOL account, and the stipulation that appellant lived at the apartment were evidence that appellant was a likely user of the Lookn4ym2love screen name, but the defense was that other persons had access to that computer and screen name. The chat logs were significant evidence that appellant (as opposed to possibly someone else who may have had access to the computer) had a sexual interest in the physical appearance and sexual behavior of young males. The chat logs showed that someone who called himself Dave and who described himself as being the same age as appellant and as physically resembling appellant had a sexual interest in the physical appearance and sexual behavior of young males. The defense, through its sole defense witness Onstot, presented testimony that others could use the computer and screen name, but there was no defense evidence that any of those other persons were named Dave or resembled appellant in age and appearance, or had a sexual interest in the physical appearance and sexual behavior of young males. Appellant argues that the court could have redacted the chat logs to make them less prejudicial. He makes no showing, however, that he ever proposed redactions which might have redacted simply what he deemed to be a few of the most egregious portions of the chats.

A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content

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THE PEOPLE, Plaintiff and Respondent, v. THOMAS JOSEPH KUREY, Defendant and Appellant.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO
March 28, 2001, Decided

The trial court entered an order revoking defendant’s probation for violation of Pen. Code, § 311.11 (possession of child pornography, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct). A sheriff’s deputy had searched defendant’s computer, and discovered movie clips purchased from a commercial Web site, depicting young male and female individuals engaged in sexual activity.

Issues:

Whether the finding of a probation violation was unconstitutional?
Whether evidence of “apparent age” should be restricted to that which is competent to establish true chronological age?
Whether the trial court should have sustained appellant’s objection to the testimony of Ms. Ming?
Whether the evidence was insufficient to show that Kurey had knowledge that the actors were under 18 years of age?

Observation and Holding:

As to the constitutional infirmity, the court observed the California statute applies to the possession of material “the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct.” The California statute thus requires a real minor and also requires knowledge of minority on the part of the perpetrator. There is no constitutional infirmity in section 311.11 similar to that found in Free Speech.

As to the appearance evidence the court observed that appearance evidence as proof of age has been received in prior California cases. In People v. Montalvo the court discussed in dictum the proof necessary to satisfy the element of age, noting that it was not limited to documents of actual age. Instead, in every case such evidence [corporal appearances] should be accepted and weighed for what it may be in each case worth. In particular the outward physical appearance of an alleged minor may be considered in judging his age.”

As to the defendant’s insufficient evidence of knowledge of minority the court observed in the case at bar, the trial judge had his own observations of the video clips as well as the expert testimony of Ms. Ming. This constituted substantial evidence that the persons depicted were in fact under the age of 18. To prove that Kurey had knowledge that the matter depicted a person under the age of 18 years personally engaging in or simulating sexual conduct, in addition to the above evidence, the trial judge also had the testimony of the investigator that when asked how old he believed the subjects on the video to be, appellant answered that he hoped they were 18, but “I believe they are under 18.” The burden of proof in a probation revocation hearing is a preponderance of the evidence. Kurey’s own statement is sufficient to prove that he had knowledge of the minority status of the actors in the video clips he possessed.

The order of the trial court is affirmed.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content

In the Matter of Clint L. Taylor, Petitioner, v New York State Division of State Police, Respondent.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

April 20, 2006, Decided

April 20, 2006, Entered

Facts:

Petitioner, a State Trooper, was served with charges and specifications alleging that on six occasions between April 1999 and July 1999, he purchased subscriptions to Web sites containing child pornography in violation of a State Police regulation prohibiting State Troopers from knowingly and willingly violating any law of the State.  No child pornography was discovered on the trooper’s computer, although three erotic photos were discovered. Those photos were not admitted into evidence.  At the conclusion of a hearing before a panel of three commissioned officers from respondent, the petitioner was found to have violated Penal Law §§ 263.11 and 263.16. This determination was confirmed and petitioner was dismissed from his employment. This CPLR article 78 proceeding was thereafter transferred to this Court pursuant to CPLR 7804 (g).

Issue:

Whether the substantial evidence does exist to support the conclusion that the petitioner violated Penal Law §§ 263.11 and 263.16?

The Court states that the Hearing Panel’s determination was grounded upon substantial evidence.  “Substantial evidence has been defined as ‘ “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”.  Here, it was demonstrated that petitioner paid for access to the Web sites which enabled him to exercise control over the images, including viewing, storing or deleting them. While petitioner correctly asserts that the Hearing Panel impermissibly relied upon a photograph which was not admitted into evidence and which indicated a use beyond the charged period, the relevant standard of proof was still met since the consideration of the photograph did not deprive petitioner of a fair hearing.  In so finding, we do not address whether the evidence presented would be sufficient to support a criminal conviction alleging a violation of the Penal Law.

Conclusion:

Hence this court confirmed that the determination of the state police department.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content.

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