Hayes v. State , 2013 Ark. App. 725 ( 2013 )

Cite as 2013 Ark. App. 725
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-13-360
Opinion Delivered December 11, 2013
JASON CARL HAYES
APPELLANT APPEAL FROM THE BOONE
COUNTY CIRCUIT COURT
[NOS. CR-2011-310-4; CR-2012-158-
V. 4]
HONORABLE GORDON WEBB,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
JOHN MAUZY PITTMAN, Judge
This is an appeal from a conditional plea of no contest to a charge of possessing and
viewing child pornography in violation of Ark. Code Ann. § 5-27-602 (Repl. 2006), and
from the revocation of appellant’s prior probation for failure to register as a sex offender.
The revocation was based on the no-contest plea.
Two search warrants were issued in this case, one to search appellant’s house and
another to search the contents of his cell phone and a laptop computer. Motions to suppress
evidence discovered as a result of those searches were denied. On appeal, appellant argues
that (1) the trial court erred in denying the motion to suppress the first search warrant
because the photographs turned over to the police by an informant did not contain any
“lewd display” in violation of the statute, and thus did not give rise to probable cause to
search; (2) the second search warrant was improper because it failed to specify with sufficient
Cite as 2013 Ark. App. 725
particularity the items to be searched; and (3) the trial court erred in interpreting the term
“lewd display” for purposes of the revocation to include photographs of nude children
engaging in nonsexual behavior. We affirm.
Because points one and three require the same analysis regarding what constitutes a
“lewd display,” we address them together. When appealing a revocation, the appellant has
the burden of showing that the trial court’s findings are clearly against the preponderance of
the evidence. Haley v. State, 96 Ark. App. 256, 240 S.W.3d 615 (2006). Evidence that is
insufficient for a criminal conviction may be sufficient for the revocation of probation. Id.
Since the determination of a preponderance of the evidence turns on questions of credibility
and the weight to be given testimony, we defer to the trial judge’s superior position. Id.
In reviewing the denial of a motion to suppress evidence, the appellate court conducts a de
novo review based on the totality of the circumstances set forth in the affidavit and will
reverse only if the trial court’s ruling is clearly against the preponderance of the evidence.
Collins v. State, 2013 Ark. App. 399. Appellate review of the existence of probable cause to
support a search or seizure is liberal rather than strict. Id.
Arkansas Code Annotated section 5-27-602 (Repl. 2006) provides:
(a) A person commits distributing, possessing, or viewing of matter depicting sexually
explicit conduct involving a child if the person knowingly:
(1) Receives for the purpose of selling or knowingly sells, procures, manufactures,
gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates,
disseminates, presents, exhibits, advertises, offers, or agrees to offer through any
means, including the internet, any photograph, film, videotape, computer program
or file, video game, or any other reproduction or reconstruction that depicts a child
or incorporates the image of a child engaging in sexually explicit conduct; or
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(2) Possesses or views through any means, including on the internet, any photograph,
film, videotape, computer program or file, computer-generated image, video game,
or any other reproduction that depicts a child or incorporates the image of a child
engaging in sexually explicit conduct.
(b) Distributing, possessing, or viewing of matter depicting sexually explicit conduct
involving a child is a:
(1) Class C felony for the first offense; and
(2) Class B felony for any subsequent offense.
(c) It is an affirmative defense to a prosecution under this section that the defendant
in good faith reasonably believed that the person depicted in the matter was seventeen
(17) years of age or older.
Pursuant to Ark. Code Ann. § 5-27-601(15)(F), “sexually explicit conduct” includes lewd
exhibition of the genitals or pubic area of any person or breasts of a female.
An informant came to the police station and told police that appellant had shown him
disturbing photographs on his cell phone. Without appellant’s knowledge, the informant
copied the images to his own cell phone and showed them to the police. The images
displayed frontal nudity of very young girls including their pubic area and their breasts. A
search warrant was issued, and appellant’s cell phone was seized. The photographs brought
in by the informant were all found on appellant’s telephone seized in the search of his home,
along with additional images of similar character.
In a case where, as here, it was argued that nudity was not lewd in the absence of
salacious conduct by the young subjects, the supreme court said:
[T]he scenes depicted in the videotapes show full frontal nudity of C.G. One of the
photographs featured on the website partially shows C.G.’s breast; another
photograph shows C.G.’s pubic area. Since C.G. was thirteen years old at the time of
trial, it is clear that she was no older than thirteen years old at the time she was
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Cite as 2013 Ark. App. 725
photographed and videotaped. There is substantial evidence from which the jury
could conclude that the scenes depicted in the videotape and the photographs
depicted on the website were “lewd” . . . .
Cummings v. State, 353 Ark. 618, 630, 110 S.W.3d 272, 279 (2003). The supreme court also
noted in that case that a determination of lewdness is ultimately based on whether the
combined effect of the photograph is designed to elicit a sexual response in a pedophile
viewer. See id. In this context, it is significant that appellant here admitted that he
masturbated while looking at the photographs in question, and identified which of them was
his “favorite” for that purpose. Under this precedent, the photographs turned over to the
police provided both probable cause for the search of his home and sufficient evidence to
support his revocation.1
In point two, appellant argues that the second search warrant— to permit the Arkansas
State Police Fusion Center to search the contents of the telephone seized in the search of
appellant’s home—was void because it did not describe with particularity the items to be
searched. That is not an accurate statement of the facts. The second warrant did describe
appellant’s cell phone by appearance, model, and serial number. The description was precise.
The problem was that the officer typing the affidavit was using an earlier document as a form,
cutting-and-pasting into it the information relevant to appellant’s case. In the process of
doing so, the officer testified, he inadvertently left in some of the information from the
1
Appellant also makes a First Amendment argument to the effect that the
interpretation of “lewd” adopted by Arkansas courts infringes on First Amendment rights.
Although appellant did argue below that the court was applying an overbroad definition, the
First Amendment was not implicated, and appellant never argued below that the definition
of lewd was constitutionally invalid. Thus, this argument is not preserved for appeal.
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original document that did not apply to appellant’s cell phone. So, the defect at issue is not
imprecision but instead is over-inclusion in that some information relating to a laptop
computer and a defendant named Chiaello found its way into the warrant permitting the
Fusion Center to search appellant’s phone.
In reviewing the denial of a motion to suppress evidence, the appellate court conducts
a de novo review based on the totality of the circumstances set forth in the affidavit and will
reverse only if the trial court’s ruling is clearly against the preponderance of the evidence.
Collins v. State, 2013 Ark. App. 399. Arkansas Rules of Criminal Procedure 13.1(b) and
13.2(b) require that the application for a search warrant and the warrant describe with
particularity the persons or places to be searched and the persons or things to be seized. In
deciding whether a particular description is sufficient, reviewing courts must use common
sense and not subject the description to hypercritical review. Simmons v. State, 2009 Ark.
App. 705. Here, the record shows that appellant’s cell phone was already in the possession
of the Fusion Center when the warrant to search its contents was being typed. Thus, there
was no danger of anything being seized that had not already been seized by the government,
and there is no allegation or indication that any of the evidence introduced at the hearing
came from any source other than appellant’s cell phone. Under these circumstances, we hold
that the typographical errors posed no invasive threat that the State would seize property that
was not already in its possession, and appellant suffered no prejudice.
Affirmed.
HARRISON and WYNNE, JJ., agree.
Rebekah J. Kennedy, for appellant.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
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