Kory E. Helmick v. Commonwealth of Kentucky ( 2023 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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RENDERED: FEBRUARY 16, 2023
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0504-MR
KERAM CHRISTENSEN APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT
V. HONORABLE GREGORY M. BARTLETT, JUDGE
NO. 19-CR-01444
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
After the Kenton Circuit Court denied his motion to suppress, Keram
Christensen entered a conditional guilty plea to 313 counts of possessing
matter portraying a sexual performance by a minor, eight counts of distributing
matter portraying a sexual performance by a minor, one count of promoting a
sexual performance by a minor (victim under 18), one count of promoting a
sexual performance by a minor (victim under 16), and one count of using an
electronic communications system to induce or procure a minor to commit a
sexual offense. He was sentenced to seventy years’ imprisonment and now
appeals as a matter of right,1 challenging the denial of his suppression motion.
Following a careful review of the record, the briefs, and the law, we affirm.
1 Ky. Const. §110(2)(b).
On August 20, 2019, Detective Austin Ross of the Covington Police
Department received a Cyber Tipline Report from the National Center for
Missing and Exploited Children (NCMEC) that a user of the online dating
website Match.com had recently posted information potentially expressing a
sexual interest in children. In particular, the user’s biography described
himself as:
Quirky Bisexual Nudist. [MAP 4-10]. Seeking friends and dates,
spend the evening together. I like baseball, hockey, NASCAR,
basketball. Also like travel and the performing arts, or just staying
in and cuddling to a good show. When I say I want kids, I mean it.
The user was identified as “Zack” from Covington, Kentucky, and the email
address associated with the account was “pedozack82@gmail.com.” Detective
Ross was able to obtain the subscriber information associated with the email
address and traced it to a physical address in Covington which was
Christensen’s residence.
The following day, Detective Ross applied for and was granted a warrant
authorizing a search of Christensen’s house. In his supporting affidavit,
Detective Ross stated he had received Cyber Tipline Report #53508390 from
the NCMEC following a report from Match.com of a user identifying himself as
“MAP 4-10” which indicated activity involving child pornography and other
internet crimes against children. The affidavit further stated:
Based upon affiant’s training, experience and investigation, affiant
recognizes “MAP” to mean “minor attracted person” or “minor
attracted pedophile” who is seeking children between the ages of
four and ten years of age.
Based up (sic) affiant’s training and experience affiant knows that
offenders who target children through electronic means use a
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variety of electronic platforms and services to do so, and that the
likelihood of a victim being present from another platform exists.
Affiant also knows through training and experience that offenders
seeking these services also seek others that will provide access to
minors for the purpose of sexual performances and/or acts
through these platforms.
Detective Ross indicated the warrant was necessary to further his
investigation of the online enticement of children for sexual purposes. The
affidavit sought permission to search the residence for multiple items,
including electronic devices, but did not seek authority to search the devices
themselves.2
Upon execution of the search warrant, Detective Ross found, among
other items, a cell phone with a background photo depicting two underage boys
engaging in oral sex; a necklace with the word “Pedo” on it; a photograph of a
young boy wearing a “Speedo” bathing suit; a journal containing 63 images
portraying sexual performances by minors; a compact disc with a photograph
of a young child engaging in oral sex located inside the front cover; and
multiple signs containing Christensen’s photograph superimposed with
messages referencing his status as a pedophile. Based on this evidence and
the results of the investigation by Detective Ross, Christensen was indicted on
October 17, 2019, on 65 counts of possession of matter portraying a sexual
performance by a minor and one count of distribution of matter portraying a
2 Additional search warrants were subsequently issued authorizing the search
of Christensen’s computer and other electronic devices. No challenge has been raised
relative to those warrants.
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sexual performance by a minor. He would later be indicted on 248 additional
counts of possession of matter portraying a sexual performance by a minor;
seven additional counts of distribution of matter portraying a sexual
performance by a minor; and one count each of promoting a sexual
performance by a minor (victim under 18), promoting a sexual performance by
a minor (victim under 16), and use of an electronic communications system to
induce or procure a minor to commit a sexual offense. These additional
charges arose following a search of Christensen’s electronic devices.
On July 8, 2020, Christensen moved to suppress the evidence seized
from his residence, alleging the search warrant was unsupported by probable
cause, his Match.com profile constituted protected speech, and Detective Ross
recklessly misled the trial judge by excluding much of the Match.com profile
information from the affidavit filed in support of the search warrant. The
Commonwealth opposed suppression, arguing the warrant was supported by
probable cause, the search of Christensen’s electronic devices was intended to
obtain possible evidence of the online enticement of children, the Leon3 good-
faith exception applied, and Christensen had affirmatively waived any
argument the issuing judge had been presented with false or misleading facts.
The trial court denied Christensen’s motion by written order entered on July
15, 2021. 4
3 United States v. Leon, 468 U.S. 897, 922 (1984).
4It is unclear whether an evidentiary hearing was conducted on Christensen’s
motion as required by RCr 8.27(2). The trial court’s order indicates it had heard the
arguments of the parties but does not reference a hearing date. Christensen makes no
4
The trial court concluded the warrant had been properly issued in
furtherance of an investigation into Christensen’s potential online enticement
of children and, based on the information contained in the NCMEC tip and the
totality of the circumstances, a fair probability existed that contraband or
evidence of a crime would be located in Christensen’s residence, thereby
providing adequate probable cause for issuance of the search warrant.
Christensen entered a conditional guilty plea to all 324 felony charges and was
sentenced to an aggregate term of seventy years’ imprisonment. This appeal
followed.
Christensen argues the trial court erred in denying his suppression
motion, asserting the search warrant was unsupported by probable cause and
mention of a hearing. The Commonwealth indicates a hearing may have occurred,
citing a reference to same in its response to the motion. However, the opening
paragraphs of the same response request a summary denial of the motion without a
hearing, and alternatively requests a hearing should the trial court decide to take up
certain issues raised in Christensen’s motion. Nevertheless, Christensen has not
claimed error related to any potential failure of the trial court to comply with the
mandates of RCr 8.27(2). Thus, we are constrained to hold he has waived any
assertion of error related to the issue and decline to rule sua sponte that the trial
court failed to conduct an evidentiary hearing. “[Courts] do not, or should not, sally
forth each day looking for wrongs to right. We wait for cases to come to us, and when
they do we normally decide only questions presented by the parties.” Greenlaw v.
United States, 554 U.S. 237, 244 (2008) (quoting United States v. Samuels, 808 F.2d
1298, 1301 (8th Cir. 1987) (R. Arnold, J., concurring in result of reh’g en banc)). See
also Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky. 1991) (holding the Supreme Court
confines its rulings to those issues presented by the parties). Further, no hearing is
included in the record before this Court and we must assume any omitted record
supports the decision of the trial court. Commonwealth v. Thompson, 697 S.W.2d.
143, 145 (Ky. 1985).
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that the trial court did not consider and analyze the case law cited in his
suppression motion.5 We reject both assertions.
We utilize a two-step process when reviewing rulings on motions to
suppress.
First, we review the trial court’s findings of fact under the clearly
erroneous standard. Under this standard, the trial court’s findings
of fact will be conclusive if they are supported by substantial
evidence. Second, we review de novo the trial court’s application of
the law to the facts.
Rhoton v. Commonwealth, 610 S.W.3d 273, 275-76 (Ky. 2020). Substantial
evidence is “evidence of substance and relevant consequence having the fitness
to induce conviction in the minds of reasonable men.” Commonwealth v.
Jennings, 490 S.W.3d 339, 346 (Ky. 2016) (quoting Owens-Corning Fiberglas v.
Golightly, 976 S.W.2d 409, 414 (Ky. 1998)). When undertaking our review, we
take care “to give due weight to inferences drawn from those facts by resident
judges and local law enforcement officers.” Ornelas v. United States, 517 U.S.
690, 699 (1996).
5 In his brief to this Court, Christensen makes a passing reference to Detective
Ross recklessly misleading the warrant-issuing judge by omitting certain facts from
the affidavit in support of the warrant. However, as the Commonwealth correctly
notes, Christensen affirmatively waived any argument related to this issue before the
trial court. Thus, to the extent he is attempting to do so, Christensen is precluded
from raising the matter before this Court. “A defendant cannot complain on appeal of
alleged errors invited or induced by himself[.]” Gray v. Commonwealth, 203 S.W.3d
679, 686 (Ky. 2006) (quoting United States v. Lewis, 524 F.2d. 991, 992 (5th Cir.
1975)). “Generally, a party is estopped from asserting an invited error on appeal.”
Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011) (citing Gray, 203 S.W.3d
at 686). Otherwise, a party would be permitted “to take advantage of an error
produced by his own act.” Wright v. Jackson, 329 S.W.2d 560, 562 (Ky. 1959); United
States v. Myers, 854 F.3d 341, 355 (6th Cir. 2017) (“Challenges to such invited errors
are forfeited.”).
6
Christensen first contends suppression was warranted in this case
because the search warrant was unsupported by probable cause. In support,
Christensen asserts no substantial basis was provided to the warrant-issuing
judge from which to conclude he possessed or distributed child pornography,
ever communicated with another user with intent to commit a sexual offense,
nor engaged in any online sexual conversation. He asserts Detective Ross had
nothing more than a bare suspicion that criminal evidence would be located
during the execution of any search warrant and thus the application for a
warrant should have been denied. Further, he argues the language used in his
Match.com profile and the email address of “pedozack82@gmail.com”
constituted protected free speech and therefore could not support a finding of
probable cause necessary for issuance of a search warrant. We disagree.
When reviewing the propriety of the issuance of a search warrant, great
deference is afforded to the warrant-issuing judge’s findings regarding probable
cause. Reversal is necessitated only if the trial court arbitrarily exercised its
discretion. Moore v. Commonwealth, 159 S.W.3d 325, 329 (Ky. 2005).
Technical requirements for warrants and any supporting affidavits have largely
been cast aside. Indeed, the Supreme Court of the United States has held the
“[t]echnical requirements of elaborate specificity once exacted under common
law pleading have no proper place in this area.” Illinois v. Gates, 462 U.S. 213,
235 (1983) (quoting United States v. Ventresca, 380 U.S. 102, 108 (1965)). The
law is clear: “the Fourth Amendment’s requirement of probable cause for the
issuance of a search warrant is to be applied, not according to a fixed and rigid
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formula, but rather in light of the ‘totality of the circumstances’ made known to
the magistrate.” Massachusetts v. Upton, 466 U.S. 727, 728 (1984). That is
the only standard for reviewing the issuance of a search warrant. See
Commonwealth v. Pride, 302 S.W.3d 43, 47 (Ky. 2010) (holding the standard for
reviewing issuance of search warrant is provided by Gates).
Courts should review the sufficiency of an affidavit underlying a
search warrant in a commonsense, rather than hypertechnical,
manner. The traditional standard for reviewing an issuing judge’s
finding of probable cause has been that so long as the magistrate
had a substantial basis for concluding that a search warrant would
uncover evidence of wrongdoing, the Fourth Amendment requires
no more.
Whether probable cause exists is determined by examining the
totality of the circumstances. Furthermore, the test for probable
cause is whether there is a fair probability that contraband or
evidence of a crime will be found in a particular place. Probable
cause does not require certainty that a crime has been committed
or that evidence will be present in the place to be searched.
Moore v. Commonwealth, 159 S.W.3d 325, 329 (Ky. 2005) (citations omitted).
Furthermore, as stated in Gates:
[t]he task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the “veracity” and “basis
of knowledge” of persons supplying hearsay information, there is a
fair probability that contraband or evidence of a crime will be
found in a particular place. And the duty of a reviewing court is
simply to ensure that the magistrate had a “substantial basis for . .
. conclud[ing]” that probable cause existed.
Id. at 238-39 (citation omitted).6
6 Gates’ totality-of-the-circumstances approach was adopted by this Court in
Beemer v. Commonwealth, 665 S.W.2d 912, 915 (Ky. 1984).
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Christensen asserts the warrant-issuing judge was not presented with
particularized facts or a substantial basis on which to conclude he had
committed a crime, nor that Detective Ross had anything more than a bare
suspicion that evidence of a crime would be uncovered during the execution of
any search warrant. Thus, he contends the finding of probable cause was
unsupported and urges reversal.
Probable cause does not, as Christensen asserts, require certainty of an
actual crime being committed or that evidence of criminal acts or contraband
will be located during a search pursuant to an issued warrant. Moore, 159
S.W.3d at 329. Rather, so long as the totality of the circumstances present a
fair probability such evidence will be uncovered based on the information
provided in the supporting affidavit, the warrant-issuing judge’s determination
of probable cause will not be disturbed. Such circumstances are present here.
Christensen made an online post indicating his interest and desire to
obtain a child with whom he could perform sexually explicit and illegal conduct
which resulted in the issuance of the NCMEC Cyber Tipline report7 received by
Detective Ross. In his affidavit seeking the search warrant, Detective Ross
indicated that through his training and experience the term “MAP 4-10” was
indicative of a person identifying themselves as a pedophile attracted to
children between 4 and 10 years of age. He further indicated evidence was
likely to be uncovered regarding multiple victims as offenders targeting minors
No challenge is levied against the veracity or soundness of the contents of the
7
NCMEC report.
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routinely use a variety of digital platforms to attempt to lure their prey. Taking
a commonsense view of the totality of the circumstances viewed through the
lens of common sense, while also affording the great deference due to the fact-
finding judge, we hold the warrant-issuing judge had a sufficient basis to
determine a fair probability existed that contraband or evidence of a crime
would be located at Christensen’s home. The facts presented would convince a
reasonably prudent person to think that a search would reveal contraband or
evidence of a crime. For these reasons, we cannot say the finding of probable
cause was arbitrary and will thus not disturb that determination. Moore, 159
S.W.3d at 329.
Christensen further goes to great lengths in an attempt to cast his online
postings and email address as nothing more than pure speech, protected by
the First Amendment to the United States Constitution. Citing numerous
federal decisions, he argues his Match.com post could not form the basis for
probable cause in support of a search warrant. In so arguing, Christensen fails
to recognize that speech attempting to arrange sexual abuse of a child is not
constitutionally protected. His First Amendment challenge requires little
discussion as it is patently without merit.
The Commonwealth clearly has a compelling interest in protecting
minors from being lured to engage in sexual acts or to be sexually abused and
speech intended to further such objectives certainly does not enjoy
constitutional protection. To argue otherwise ignores the rule that “[o]ffers to
engage in illegal transactions are categorically excluded from First Amendment
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protection.” United States v. Williams, 553 U.S. 285, 297 (2008) (citations
omitted). “Speech attempting to arrange the sexual abuse of children is no
more constitutionally protected than speech attempting to arrange any other
type of crime.” United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir.
2004). “Put another way, the defendant simply does not have a First
Amendment right to attempt to persuade minors to engage in illegal sex acts.”
United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000). “Speech intended
deliberately to encourage minors’ participation in criminal sexual conduct has
no redeeming social value and surely can be outlawed. . . . And where . . .
speech is the instrumentality of the crime itself, the First Amendment provides
no shelter from the government’s exercise of its otherwise valid police powers.”
United States v. Dwinells, 508 F.3d 63, 71 (1st Cir. 2007) (citations omitted).
The Kentucky legislature has criminalized using the internet with the
intent of procuring or inducing a minor for purposes of committing a sexual
offense. KRS8 510.155. By extending criminal liability to someone who
knowingly attempts to commit such an act or engage in such conduct, the
General Assembly proscribed speech integral to that criminal conduct and
“categorically excluded [such speech] from First Amendment protection.”
Williams, 553 U.S. at 297. Christensen is therefore not entitled to First
Amendment protection and his argument against issuance of the search
warrant on this basis is without merit.
8 Kentucky Revised Statutes.
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Finally, Christensen asserts the trial court failed to address or analyze
the case law he cited in support of his suppression motion. Although the trial
court’s order denying the suppression motion is brief, there is no indication the
trial court abdicated its duty to fully apprise itself of the relevant facts and law
prior to reaching its decision. We are aware of no rule which requires a trial
court to specifically address each and every case cited by a party in ruling on a
motion and Christensen points us to no such authority. While reciting and
discussing many of the same cases before this Court as he did below,
Christensen offers nothing other than his own allegations, bare speculation,
and conjecture as to what the trial court did—or did not—consider in making
its ruling. Appellate courts will not research and construct a party’s
underdeveloped legal argument. See Hadley v. Citizen Deposit Bank, 186
S.W.3d 754, 759 (Ky. App. 2005). Arguments based solely on conjecture are
plainly unpersuasive; as we have previously stated, “[w]e will not engage in
gratuitous speculation . . . based upon a silent record.” Commonwealth v.
Thompson, 697 S.W.2d 143, 145 (Ky. 1985). Without more, we cannot say the
trial court erred in its evaluation of the facts and issues presented before
denying Christensen’s suppression motion.
For the foregoing reasons, the judgment of the Kenton Circuit Court is
affirmed.
All sitting. VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell,
JJ., concur. Thompson, J., concurs in result only.
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COUNSEL FOR APPELLANT:
Chase Cox
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General
Courtney J. Hightower
Assistant Attorney General
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