Battery, MySpace and the Rule of Completeness

After he was convicted of sexual battery, false imprisonmentand domestic battery in violation of Florida law, Larry Harden appealed.  Harden v. State, __ So.3d __, 2012 WL 1859267 (Florida Court of Appeals 2012).   

All the opinion says about the facts that led to his conviction is that Harden “was accused of beating and raping his then-girlfriend, K.W., in a motel room following an argument in which [he] accused K.W. of sleeping with someone else.”  Harden v. State, supra. 

Harden raised two issues on appeal, one of which is our primary concern.  We’re going to begin with the other issue, though, because it sets up why the Court of Appeals then addresses the second issue (which will become clearer as we go through this.)

Harden’s first argument was that the trial judge erred in allowing the prosecution to present evidence concerning “a prior domestic violence incident that occurred about six months before the alleged rape.”  Harden v. State, supra.  The prosecution argued that the evidence was relevant to “establish [Harden’s] intent and motive.”  Harden v. State, supra. 

In ruling on this issue, the Court of Appeals explained that

[r]elevant evidence is evidence tending to prove or disprove a material fact.  § 90.401, Florida Statutes.  Generally, any evidence relevant to prove a fact at issue is admissible unless precluded by a specific rule of exclusion. See . . . § 90.402,Florida Statutes.   

Harden v. State, supra. 

The court also explained that

[s]imilar fact evidence of collateral crimes, wrongs, or acts `is admissible when relevant to prove a material fact in issue, including . . . proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.’  § 90.404(2)(a), Florida Statutes. 

Thus, evidence of other crimes is admissible where such evidence `tends to disprove a defendant's theory of defense or attempt to explain his intent.’ Gould v. State, 942 So.2d 467 (Florida Court of Appeals 2006)

Harden v. State, supra. 

The Court of Appeals then found that in this case,

unlike in a murder case . . ., motive and intent were not particularly pertinent issues in the trial. As our supreme court has explained: `State of mind is not a material fact in a sexual battery charge, nor is intent an issue.’ Coler v. State, 418 So.2d 238 (Florida Supreme Court 1982).

Likewise, the [Court of Appeals] has held that, in a prosecution against the defendant for sexual battery of his then spouse, it was error to admit a prior incident in which the defendant slapped his spouse, `because the perpetrator's state of mind is not an issue in a sexual battery case’” Hebel v. State, 765 So.2d 143, 145 (Fla. 2d DCA 2000).

Harden v. State, supra. 

The court therefore found that the trial judge did err in admitting this evidence:

[T]he earlier incident of domestic violence did nothing more than demonstrate [Harden’s] propensity for violence against his girlfriend. The primary contested fact in this case was whether [his] girlfriend consented to the sex; [Harden’s] motive or intent was not significant to any contested fact. . . .

Even if the prior domestic violence incident had some marginal relevance in showing why K.M. delayed reporting the alleged sexual battery, this relevance was substantially outweighed by the danger of unfair prejudice. The prior bad act was unfairly prejudicial because it was classic propensity evidence that showed [Harden’s] bad character. Furthermore, on this record, we cannot say that the error was harmless. . . .

Harden v. State, supra. 

Since the error was not clearly harmless, the Court of Appeals found it was necessary to reverse Harden’s convictions and remand the case for a new trial.  Harden v. State, supra.  And since there was going to be a new trial, it addressed the other issue Harden raised on appeal, an evidentiary issue.  Harden v. State, supra. 

Harden argued that the trial judge erred in not allowing him to “question K.M. regarding MySpace messages she sent” to his “new girlfriend” after “the alleged sexual battery occurred, thereby denying him a full and fair opportunity to cross-examine the witness about her bias or motive to be untruthful.”  Harden v. State, supra.   

Prior to trial, Harden’s lawyer filed a “notice to admit . . . messages sent -- after the alleged rape -- from the MySpace account of the alleged victim, K.W., to appellant's new girlfriend, Kayla.”  Harden v. State, supra.  The prosecution objected to the admission of the messages and the court held a hearing on the matter.  Harden v. State, supra. 

At the hearing, K.W. admitted . . . she sent the messages over MySpace to Kayla. In the messages, K.W. told Kayla, among other things, that she was `ugly’ and her `vagina was like a swimming pool.’  K.W. also wrote that `I'm too beautiful for you to compete, you look like a F'g gorilla, for real dog, you should try something about that shit, Larry is . . . a F-boy.’

K.W. also admitted that one of the messages stated that, `Larry's ladies, you hoes don't stand a chance.’ K.W. claimed she sent the messages in response to messages from Kayla. K.W. explained that Kayla had threatened to beat her up and even followed her home after appellant's first court appearance. K.M. testified that she wrote the messages to let Kayla know she would not be intimidated.

Harden v. State, supra. 

Harden’s lawyer argued that the messages were admissible because they “were relevant to K.W.'s credibility because they were sent within weeks of the alleged sexual assault and supported the defense theory that the alleged victim was a jealous ex-girlfriend.”  Harden v. State, supra.   

At the end of the hearing, the judge ruled that the messages were not admissible because (i) “the prejudice of the messages outweighed their probative value” and (ii) “the rule of completeness precluded” their admission “because `some of these emails are clearly responsive to other emails, and without having those other emails, they are out of context.’”  Harden v. State, supra. 

The trial judge’s decision on the applicability of the rule of completeness was the second issue the Court of Appeals addressed, to clarify the admissibility of the messages at Harden’s retrial.  Harden v. State, supra.  Harden argued that the judge erred in making this ruling.  Harden v. State, supra. 

The Court of Appeals found, first, that the MySpace messages were relevant because

they demonstrated bias and supported the defense theory that K.M. was a jealous ex-girlfriend with a motive to lie. Moreover, we cannot agree with the trial court's conclusion that the probative value of the messages was substantially outweighed by the danger of unfair prejudice. 

Here, while K.M. may be embarrassed that she sent the messages, we fail to see how the messages were unfairly prejudicial to the state.

Harden v. State, supra. 

The court then addressed the rule of completeness.  Harden v. State, supra.  The Court of Appeals explained that the

rule of completeness is codified in section90.108(1), Florida Statutes, which provides that `[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her . . . to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.’

The purpose of the rule is to avoid the potential for creating misleading impressions by taking statements out of context. Larzelere v. State, 676 So.2d 394 (Florida Court of Appeals 1996).

However, the rule of completeness has not been interpreted to require exclusion of evidence where only portions of a written or recorded statement are available. See, e.g., State v. Hall, 194 N.C. App. 42, 669 S.E.2d 30 (North Carolina Court of Appeals 2008) (even where portions of a statement are inaudible or inadvertently destroyed, the rule of completeness has not been interpreted to U.S. v. Thompson, 2009 WL 331482 (U.S. District Court for the Eastern District of Kentucky 2009) (rule of completeness inapplicable where the government introduced a thirty-second news clip featuring portions of a reporter's interview of the defendant that lasted almost thirty minutes; the government was not in possession of the entire interview, the other portions were unavailable, and the fact that the defendant may have said something else during the interview did not implicate the rule of completeness).

Harden v. State, supra. 

The court then held that

if the parties are able to produce the MySpace messages Kayla sent to K.W., then those messages should be admitted -- alongside K.W.'s MySpace messages -- under the rule of completeness. However, if Kayla's MySpace messages to K.W. are unavailable, the rule of completeness does not mandate the exclusion of the messages that K.W. sent to Kayla.

Rather, the state may elicit testimony that K.W.'s MySpace messages were sent in response to threatening messages from Kayla. See United States v. Bellomo, 176 F.3d 580 (U.S. Court of Appeals for the 2d Circuit 1999) (statements offered as evidence of commands or threats directed to the witness, rather than for the truth of the matter asserted, are not hearsay); see also State v. Holland, 76 So.3d 1032 (Florida Court of Appeals 2011) (`Verbal acts are not hearsay because they are admitted to show they were actually made and not to prove the truth of what was asserted therein.’).

This solution will avoid the potential for creating a misleading impression and will allow the jury to accurately perceive the entire context surrounding K.W.'s MySpace messages.

Harden v. State, supra. 

The Desk, the School Resource Officer and the 4th Amendment

This post examines Raul X. Johnson’s attempt to have evidence suppressed in his pending federal prosecution.  U.S. v. Johnson, 2012 WL 1680786 (U.S. District Court for the Western District ofLouisiana 2012). 

According to the news story you can find here, Johnson “faces 7 counts of mail fraud and one count of lying to a federal agent.”  The story also says he is “accused of stealing items from local stores, reselling them on e-bay, and pocketing almost 200 thousand dollars.” 

In his motion to suppress, Johnson, “an officer with the Monroe [Louisiana] City Police Department (`MPD’),” challenged “two searches by law enforcement: (1) a search of the police cruiser assigned to him for use as a school resource officer and (2) a search of his desk at Carroll Junior High School.”  U.S. v. Johnson, supra.  This is all the opinion says about the searches:

On September 8, 2008, Sergeant Charles Roark of the MPD, opened a criminal investigation into the sale of stolen merchandise through an eBay account in Johnson's name. On September 12, 2008, Sergeant Roark asked the Federal Bureau of Investigation (`FBI’) to become involved.

By the time they searched Johnson's desk at Carroll Junior High School on February 20, 2009, Sergeant Roark and Agent Chesser had been involved in a joint criminal investigation of Johnson for six months. . . .

U.S. v. Johnson, supra.  The opinion notes that Roark and Chesser did not have a warrant to search Johnson’s desk, and I’m assuming they also did not have one to search his police cruiser.  U.S. v. Johnson, supra. 

The opinion also notes that the “evidence obtained from Johnson's desk included a debit card, bank statements and a laptop computer.”  U.S. v. Johnson, supra.  So I’m assuming his motion to suppress sought to prevent the government from using any of this evidence against him.

This opinion is written by a U.S. District Court judge who is ruling on a Report and Recommendation issued by a U.S. Magistrate Judge.  U.S. v. Johnson, supra.  As Wikipedia explains, in “the United States federal courts, magistrate judges are appointed to assist United States district court judges in the performance of their duties.”  District court judges often refer matters – such as a motion to suppress – to a Magistrate Judge, who reviews the briefs submitted by the parties and may hold an evidentiary hearing, after which he/she issues a Report and Recommendation to the District Court Judge.

The Magistrate Judge in this case issued a Report and Recommendation in which she recommended that the District Court judge “grant the motion in part and deny the motion in part.”  U.S. v. Johnson, supra.  More precisely,

[w]ith regard to the police cruiser, Magistrate Judge Hayes concluded that Johnson did not have a reasonable expectation of privacy, and she recommended that the Motion to Suppress be denied as to the evidence obtained from the cruiser. With regard to the desk, however, Magistrate Judge Hayes found that Johnson did have a reasonable expectation of privacy and that the warrantless search of his desk violated the Fourth Amendment and was presumptively unreasonable.

U.S. v. Johnson, supra. 

As you may know, the 4^th Amendment creates a right to be free from “unreasonable” searches and seizures.  As Wikipedia notes, and as I’ve explained in prior posts, a 4^th Amendment “search” violates a “reasonable expectation of privacy” in a place or a thing, such as a desk or a vehicle.  To have such an expectation of privacy, you must, as I’ve noted in earlier posts, both subjectively believe the place or thing is private and society must accept your belief as objectively reasonable.  If you’d like to read more out that, check out this post.

The prosecution objected to part of the Magistrate’s Report and Recommendation, i.e., it argued that the District Court judge should not follow her recommendations.  U.S. v. Johnson, supra.  The government argued that she erred in finding that the motion should be granted with regard to the search of Johnson’s desk.  U.S. v. Johnson, supra.  As the opinion notes, the

Government objects that the Court should deny the Motion to Suppress in its entirety because the search of Johnson's desk was a legitimate workplace search and, in the alternative, the evidence would have been inevitably discovered.

U.S. v. Johnson, supra. 

In making this argument, the prosecution relied on the “workplace exception” established in the Supreme Court’s decision in O’Connor v. Ortega, 480 U.S. 709(1987).  In Ortega, the Court held that “[s]earches and seizures by government employers or supervisors of the private property of their employees . . . are subject to the restraints of the 4th Amendment.”  In other words, this meant that Johnson – like other employees – could have a 4^th Amendment expectation of privacy in his office and his desk. 

The Ortega Court distinguished between “areas and items that are related to work” and are “within the employer’s control” and personal possessions, such as bags, employees bring to the workplace. O’Connor v. Ortega, supra. It noted that while the employee’s 4^th Amendment expectation of privacy in “the existence and the outward appearance of the luggage is affected by its presence in the workplace, the employee's expectation of privacy in the contents of the luggage is not affected in the same way.”  O’Connor v. Ortega, supra.  In other words, the fact that you bring a laptop bag to work is not “private” for the purposes of the 4^th Amendment, but the contents of the bag can be, so officers would need a warrant (or an exception to the warrant requirement) to search the bag.

The Ortega Court also held that while employer searches of property in which employees have a 4^th Amendment expectation of privacy is a “search,” and while this means the search must be “reasonable,” it does not mean that employers must obtain a search warrant when they investigate an employee for “work-related” reasons. O’Connor v. Ortega, supra.  As the Court noted, “[w]e must balance the invasion of the employees' legitimate expectations of privacy against the government's need for supervision, control, and the efficient operation of the workplace.”  O’Connor v. Ortega, supra.

That is the workplace exception the government relied on. It cited a series of federal cases that have applied O’Connor v. Ortega to workplace searches intended to locate evidence of employee misconduct that could also be criminal, such as viewing child pornography on an officer computer.  U.S. v. Johnson, supra.  One Court of Appeals, for example, found that “O'Connor's goal of ensuring an efficient workplace should not be frustrated simply because the same misconduct that violates a government employer's policy also happens to be illegal.” U.S. v. Slanina, 283 F.3d 670 (U.S. Court of Appeals for the 5^th Circuit 2002).   

This court, like other federal courts, focused on the purpose of the investigation, so as long as it has the “dual nature” of seeking evidence of workplace misconduct and of criminal activity, the employer and/or the employer’s agents will not be required to obtain a search warrant.  U.S. v. Slanina, supra.  It, like other courts, found that to require employers to obtain a warrant in this situation would “frustrate the government employer’s interest in the” efficient operation of the workplace.  U.S. v. Slanina, supra. 

So the prosecution argued, in the Johnson case, that under this principle, Roark and Chesser were not required to obtain a warrant to search Johnson’s office and desk.  U.S. v. Johnson, supra.  The District Court judge did not agree.  He explained that

The Government asks the Court to ignore the `critical distinction’ between this case and Slanina: whether an investigation was `wholly criminal’ or had the dual purpose of an internal investigation into work-related misconduct and into the possible commission of a crime. In this case, there was no dual purpose; the single purpose of this investigation was Johnson's possible commission of a crime. 

U.S. v. Johnson, supra.  

He based that conclusion on the fact that, as noted above, at the time of the search Johnson had been the focus of a criminal investigation for six months.  U.S. v. Johnson, supra.  He therefore found that the Ortega workplace exception did not apply and that the Magistrate Judge correctly found that the evidence found by searching Johnson’s desk should be excluded as having been obtained in violation of the 4^th Amendment.  U.S. v. Johnson, supra. 

The prosecution then claimed the evidence was admissible under the inevitable discovery exception.  U.S. v. Johnson, supra.  As Wikipedia notes, this is a principle in U.S. law under which “evidence obtained in violation of the defendant's constitutional rights is admissible in court if it can be established, by a preponderance of the evidence, that normal police investigation would have inevitably led to the discovery of the evidence.”  The exception applies if

`the Government demonstrates by a preponderance of the evidence that (1) there is a reasonable probability that the contested evidence would have been discovered by lawful means in the absence of police misconduct and (2) the Government was actively pursuing a substantial alternate line of investigation at the time of the constitutional violation.’

U.S. v. Johnson, supra (quoting U.S. v. Jackson, 596 F.3d 236 (U.S. Court of Appeals for the 5^th Circuit 2010)). 

Here, the prosecution argued that Johnson

had been placed on leave pending the outcome of the investigation and that Johnson's supervisor had instructed Sergeant Roark to retrieve the MPD's laptop from Johnson's desk. Therefore, the Government contends that the bank statements and debit card would have been inevitably discovered by either Sergeant Roark and Agent Chesser or by another MPD employee designated to clean out Johnson's desk.

U.S. v. Johnson, supra. 

The judge again did not agree.  He noted, first, that he had

just held that Sergeant Roark and Agent Chesser did not have the authority, absent a search warrant, to search Johnson's desk. Thus, this argument carries no weight.

U.S. v. Johnson, supra. 

He also found that the prosecution had “failed to establish by a preponderance of the evidence that there was a reasonable probability the contested items would have been discovered by lawful means.”  U.S. v. Johnson, supra. 

The Court has reviewed the record in this matter, but the only testimony addressing this argument indicates that Johnson's laptop computer was located in his office at Carroll Junior High School and that it was a 14–inch screen IBM laptop which could fit in a drawer. Neither Sergeant Roark nor Agent Chesser testified as to where the computer was located or where the debit card and bank statements were found. 

U.S. v. Johnson, supra. 

The judge therefore adopted the Magistrate Judge’s recommendations and granted Johnson’s motion to suppress the evidence as a result of the search of Johnson’s “desk at Carroll Junior High School.”  U.S. v. Johnson, supra.  He also denied the motion to suppress evidence obtained as a result of the search of his police cruiser.  U.S. v. Johnson, supra. 

Robbery, Unlawful Access to a Computer and Double Jeopardy

After being convicted of first-degree robbery in violation of Kentucky Revised Statutes § 515.020 and first-degree unlawful access to a computer under Kentucky Revised Statutes § 434.845, Paul R. Day Jr. appealed, arguing that his convictions for both crimes violated double jeopardy.  Day v. Commonwealth, __ S.W.3d __, 2012 WL 1758127 (Kentucky Court of Appeals 2012). 

The prosecution arose at approximately 5:15 a.m. on November 13, 2008, when Day,

armed with a handgun, confronted Roger Becker while he was walking to work at Pennyrile Allied Community Services (PACS) in Hopkinsville, Kentucky. Day put a gun to Becker's back and demanded money. Becker did not have any cash. Day told [him] to walk to an abandoned house approximately 75 to 100 feet away from PACS; Becker complied. 

Once inside the house, Day forced Becker to lay face down on the floor and bound [his] hands and feet. Day demanded Becker's wallet. Becker explained he did not carry a wallet; instead, he had a small leather case that contained his driver's license, military identification, and U.S. Bank debit card. Day took Becker's debit card and demanded [his] pin number, which Becker provided. Day declared that, if the debit card and/or pin number did not work, he would return and kill Becker. Day stuffed a rag into Becker's mouth and fled the abandoned house.

Becker freed himself and returned to PACS where co-workers called the police. Upon arrival, officers observed Day leaving the U.S. Bank ATM, which was approximately one-quarter mile from the abandoned house. After placing Day under arrest, officers found $400.00 in [his] left pocket and $600.00 in [his] right pocket. 

Officers also found a receipt in Day's pocket from a BB & T ATM indicating $400.00 was withdrawn from Becker's U.S. Bank account at 5:37 a.m. [They] further discovered at Day's feet a receipt from a U.S. Bank ATM indicating $600.00 had been withdrawn from Becker's U.S. bank account at 5:41 a.m.

Day v. Commonwealth, supra.  Day “subsequently admitted to using Becker's debit card at the BB & T and U.S. Bank ATMs.”  Day v. Commonwealth, supra. 

On December 19, the Christian County Grand Jury returned an indictment “charging Day with first-degree robbery, first-degree burglary, kidnapping, two counts of first-degree unlawful access to a computer, possession of a handgun by a convicted felon, and tampering with physical evidence.”  Day v. Commonwealth, supra.  The case went to trial and on August 20, 2010, “the jury returned a guilty verdict as to all charges.”  Day v. Commonwealth, supra.  The trial judge sentenced Day to fifteen years in prison, after which he appealed.  Day v. Commonwealth, supra. 

As I noted earlier, Day argued, on appeal, that “his convictions for first-degree robbery . . . and first-degree unlawful access to a computer . . . offend double jeopardy.”  Day v. Commonwealth, supra.  And as you may know, the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution says that non one shall “ be subject for the same offense to be twice put in jeopardy of life or limb”.  As Wikipedia notes, the Clause has been interpreted as prohibiting (i) the prosecution from retrying someone for charges as to which they were acquitted in a previous trial and (ii) imposing multiple punishments for the “same offense”.  Day, of course, relied on the latter interpretation.

The Kentucky Court of Appeals began its analysis of Day’s double jeopardy argument by noting that, as I’ve explained in earlier posts, the test used to determine whether two crimes are the “same offense” is the test the Supreme Court enunciated in Blockburger v. U.S., 284 U.S. 299 (1932).  The Blockburger Court held that

where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger v. U.S., supra.  Years later, the Court noted, in U.S. v. Dixon, 509 U.S. 688 (1993), that the Blockburger test asks whether each “offense contains an element not contained in the other; if not, they are the `same offence and double jeopardy bars” imposing punishment for both.  

The Court of Appeals noted, then, that in deciding if Day’s convictions for robbery and unlawful access to a computer violated double jeopardy, “we must closely examine and compare the elements of first-degree robbery and first-degree unlawful access to a computer.”  Day v. Commonwealth, supra.  It therefore parsed both crimes into their essential elements, beginning with robbery.  (You can access the text of the statutes defining the offenses via the links included earlier in this post.)

It explained that to commit the crime of first degree robbery, the defendant must:

(1) in the course of committing a theft

(2) use or threaten the immediate use of physical force

(3) with intent to accomplish the theft

(4) while either

(a) causing physical injury upon a person not a participant in the crime

(b) being armed with a deadly weapon or

(c) using or threatening the immediate use of a dangerous instrument upon a person not a participant in the crime.

Day v. Commonwealth, supra (parsing Kentucky Revised Statutes § 515.020).

It explained that to commit the crime of first-degree unlawful access to a computer, the defendant must

(1) without the owner's consent

(2) knowingly and willingly

(3) access or caused to be accessed a computer or component thereof

(4) in order to either

(a) devise or execute a scheme of fraud, or

(b) obtain money, property, or services by means of false or fraudulent pretenses.

Day v. Commonwealth, supra (parsing Kentucky Revised Statutes § 434.845).

The Court of Appeals found that a “cursory review reveals that first-degree robbery and first-degree unlawful access to a computer do not share even a single . . . element.”  Day v. Commonwealth, supra.  The crimes were therefore not the “same offense” under the Blockburger test, which meant “Day’s conviction for both offenses does not violate . . . constitutional protections against double jeopardy.” Day v. Commonwealth, supra. 

The court then applied an additional test, as required by the Kentucky Supreme Court’s decision in Lloyd v. Commonwealth, 324 S.W.3d 384 (2010).  The Lloyd Court explained that the U.S. Supreme Court has held that Blockburger is “`a rule of statutory construction, and because it serves as a means of discerning congressional purpose the rule should not be controlling where . . . there is a clear indication of contrary legislative intent.’” Lloyd v. Commonwealth, supra (quoting Albernaz v. U.S., 450 U.S. 333 (1981)).   

The Court of Appeals therefore proceeded to analyze the Kentucky legislature’s intent in adopting both criminal statutes because “where the [state] legislature clearly intends to prohibit convictions for two offenses arising from one underlying transaction or act, the Blockburger test must yield”.  Day v. Commonwealth, supra.  In other words, if the state (or federal) legislature wants to allow someone to be convicted of two crimes based on the same, single act, they can . . . as long as they make their intention to do so clear. 

Day argued that “the Kentucky legislature did not intend for a person to be convicted both of first-degree robbery and first-degree unlawful access to a computer” but did not  “provide any evidence of the legislature's intent in support of his conclusory statement.” Day v. Commonwealth, supra.  Instead, he relied on a Florida case – Gorday v. State, 907 So.2d 649 (Florida Court of Appeals 2005), which held that Gorday could not be convicted of both “armed robbery and theft of a credit card” because under Florida law, “armed robbery and credit card theft are merely degree variants of the same core offense of theft.”  Gorday v. State, supra. 

Gorday robbed a woman of her purse – “at scissor point” – and then used a credit card that had been in her purse to buy gasoline.  Gorday v. State, supra.  He was charged with and convicted of armed robbery and credit card theft but the Florida Court of Appeals reversed his convictions because (i) the crimes were merely variants of "theft" and (ii) the convictions “arose out of a single act”, i.e., Gorday’s taking the victim’s purse.  Gorday v. State, supra.  The Florida court noted that it “It was not the act of using the credit card, but the act of taking the credit card that gave rise to and completed both crimes.” Gorday v. State, supra (emphasis in the original).

The Court of Appeals did not find the Gorday relevant here because Kentucky law

does not consider the two crimes at issue here degree variants of the same underlying crime, i.e., theft. . . . [F]irst-degree robbery falls under Title L, [Kentucky Revised Statutes] Chapter 515 titled `Robbery’ while first-degree unlawful access to a computer falls under Title XL, Chapter 434 titled `Offenses Against Property By Fraud’ evincing that the Legislature did not consider the latter to be a mere degree variant of the former. 

Additionally, unlawful access to a computer is an offense against property while robbery is an offense against a person. . . . Consequently, we conclude that our Legislature did not intend to prohibit convictions for both first-degree robbery and first-degree unlawful access to a computer arising from one underlying transaction or act. 

Day v. Commonwealth, supra. 

The court also found that Day's convictions did not arise “out of one single act, but instead resulted from two separate, distinct acts.” Day v. Commonwealth, supra. 

[U]sing a handgun, Day threatened Becker with bodily harm, bound [his] hands and feet, and stole [his] debit card and pin number. Day then walked approximately a quarter mile to the BB & T ATM to access Becker's bank account using the stolen debit card. 

It was not until Day used Becker's ATM card at the BB & T ATM that he committed the offense of first-degree unlawful access to a computer. Day committed the second count of first-degree unlawful access to a computer when he used Becker's ATM card at the U.S. Bank ATM.

Thus, it was the separate, subsequent acts of using Becker's ATM card, after the completion of the crime of robbery, which gave rise to the two counts of first-degree unlawful access to a computer. Had Day never unlawfully used Becker's ATM card, he never would have committed the offense of first-degree unlawful access to a computer.

The geographical and temporal separation of the specific acts giving rise to each offense compels the conclusion that Day's convictions for first-degree robbery and first-degree unlawful access to a computer did not arise out of a single incident. 

Day v. Commonwealth, supra. 

The Court of Appeals therefore affirmed Day’s convictions on both crimes and his sentence.  Day v. Commonwealth, supra. 

UBUNTU, TrueCrypt and Child Pornography

This is another post about a juvenile case:  “J.E.M.”, a seventeen-year-old resident of Minneapolis, appealed “his delinquency adjudication of possession of pornographic work involving minors in violation of “ Minnesota Statutes §617.247(4)(a). In re Welfare of J.E.M., 2012 WL 1389400 (Minnesota Court of Appeals 2012). 

On appeal, he argued, in part, that “the evidence was insufficient as a matter of law to prove that he possessed child pornography `knowing or with reason to know its content and character’”.  In re Welfare of J.E.M., supra.

The case began on December 29, 2008, when Officer Hanson of the Minneapolis Police Department conducted an undercover investigation into Internet child pornography using peer-to-peer networks.  In re Welfare of J.E.M., supra. The network involved in this case

relies on software that allows sharing of files such as LimeWire and Shareaza. Hanson found an IP address that indicated child pornography which corresponded to the address for J.E.M.'s, father's home in Rochester, Minnesota. Gnuwatch . . . connect[ed] with the host computer at this IP address about four times between 9:00 a.m. and 1:30 p.m. on December 29, 2008. . . .

[T]he software the investigation identified was Shareaza version 2.4 . . . and [Hanson] was able to read the identification number for the client's software. [He] also found hash values that corresponded with hash values of known images of child pornography. . . . [and] found multiple images he believed were child pornography. At trial, four of these images were offered as evidence and were proven to be child pornography from a group called the `Vicki Series’. . . .

Upon further examination of the computer, Hanson found it had four partitions on the hard drive, each running a different operating system. Two partitions, one using Windows VISTA, and a second using a Linux-based operating system called UBUNTU, required user passwords for access. The only user found for this computer was identified by [J.E.M.’s] first name.

In re Welfare of J.E.M., supra.

The Shareaza software where the child pornography was found was in the VISTA partition. In re Welfare of J.E.M., supra.  Several files “had paths or names” that indicated they contained child pornography.  In re Welfare of J.E.M., supra. Hanson found “5,250 thumbnail images in a folder called `thumbcache’”, which was in the UBUNTU partition. In re Welfare of J.E.M., supra.  He “believed” 54 of the thumbcache images contained child pornography. In re Welfare of J.E.M., supra.

Between “2:09 p.m. and 2:19 p.m. on December 29,” child pornography files on the laptop were accessed using TrueCrypt, encryption software that “allows one to change the extensions of the files so one can hide the true nature of the file.” In re Welfare of J.E.M., supra. The opinion says some files may have been deleted because the “recycle bin or folder was accessed during that time.” In re Welfare of J.E.M., supra. 

A file labeled “`.recently-used.xbel’” was in the UBUNTU partition; it was a “recently opened document list” that contained “a number of child pornography files under the directory path `file:///media/truecrypt7/stuff/pt.’” In re Welfare of J.E.M., supra. And emails “sent to a personal e-mail address associated with” J.E.M. “were reportedly received throughout the day on December 29, 2008.”  In re Welfare of J.E.M., supra.

Between “late 2008 and early 2009,” J.E.M. lived with his mother (in Minneapolis, I think?) but “also stayed with his father In Rochester, Minnesota, on occasion.”  In re Welfare of J.E.M., supra.  On December 25, 2008, he wen to his father's home, “bringing his laptop with him,” and spent the rest of his school break there. In re Welfare of J.E.M., supra. J.E.M. had his laptop until “sometime in late January or early February 2009,” when his mother took it away “for disciplinary reasons.”  In re Welfare of J.E.M., supra.

On March 10, 2009, Sergeant Teal of the Rochester Police Department got a warrant based on Hanson's report and executed it at J.E.M.’s father’s home. In re Welfare of J.E.M., supra. Teal searched the computers seized there but “did not find anything of evidentiary value.”  In re Welfare of J.E.M., supra.  When J.E.M.’s mother learned officers had seized computers from his father’s home, she “had her fiancé deliver her son's laptop to the Rochester Police Department.” In re Welfare of J.E.M., supra.

She did not know “the password to the computer or any of the programs on it” and said she never used it.  In re Welfare of J.E.M., supra.  J.E.M.’s father and his wife said they did not access or use the laptop, did not know the password for it and did not set up Shareaza on it.”  In re Welfare of J.E.M., supra. His younger brother “also stayed at his father's home during the same time” but there was “never any suggestion” that he had access to J.E.M.’s computer. In re Welfare of J.E.M., supra. 

Teal examined the laptop and found “the VISTA partition required a login password and the user profile for that partition carried [J.E.M.’s] first name.” In re Welfare of J.E.M., supra. He also found the TrueCrypt program, “which contained some encrypted files, and peer-to-peer software”, which “he identified as Shareaza or LimeWire.”  In re Welfare of J.E.M., supra.  Teal looked for “deleted files, and found images that appeared to be child pornography.”  In re Welfare of J.E.M., supra.   

Because the files “were in unallocated space, or had been deleted, they did not have identifying data on them, such as time information.” In re Welfare of J.E.M., supra.   Among the images Teal found were “the four from the `Vicki Series’ that were verified to be child pornography.”  In re Welfare of J.E.M., supra.  

J.E.M. was “charged with one count of disseminating pornographic work in violation of”  Minnesota Statutes § 617.247(3)(a) and one count of possessing pornographic work on a computer . . . in violation of” Minnesota Statutes § 617.247(4)(a).  In re Welfare of J.E.M., supra.   

At his trial, his defense expert agreed that “child pornography was downloaded from” J.E.M’s laptop on December 29, 2008 and found “no pornographic images in active folders” but found “child pornography images in thumbnails or cache files.”  In re Welfare of J.E.M., supra.  He testified that “while thumbnails may have dates on them, they do not tell you anything about the date on which the thumbnail may have actually been viewed.”  In re Welfare of J.E.M., supra.  

J.E.M.’s expert also testified that he “found no evidence of repeated viewing of child pornography”.  In re Welfare of J.E.M., supra.  He also testified that while it “appeared that the thumbnails containing child pornography referred to in Hanson's report were from Internet viewing, he could not be sure as there was no path for them.”  In re Welfare of J.E.M., supra.  Hanson, testifying in rebuttal, said “the only way a thumbnail could get from the Internet cache to the Thumbcache.db file is if the user accessed the Internet file and viewed the image.”  In re Welfare of J.E.M., supra.  

J.E.M. was convicted of possessing pornographic work involving minors but acquitted of dissemination.  In re Welfare of J.E.M., supra.  He was given a “stayed adult sentence of 15 months in prison and was placed on [Extended Jurisdiction Juvenile” probation” until he is 21.  In re Welfare of J.E.M., supra.  “Pursuant to” Minnesota Statutes § 243.166, he “must register as a predatory offender.”  In re Welfare of J.E.M., supra.  

On appeal, J.E.M. argued that the evidence did not support his conviction. In re Welfare of J.E.M., supra.  The Court of Appeals noted that to convict someone of possessing "pornographic work involving minors," the prosecution must prove beyond a reasonable doubt that he/she “`possess[ed] a pornographic work or a . . . computer . . . containing pornographic work, knowing or with reason to know’ the content and character of the work is pornographic work involving minors.”  In re Welfare of J.E.M., supra.  

 It also pointed out that a “`possessor of child pornography has ‘reason to know’ a pornographic work involves a minor where [he/she] is subjectively aware of a ‘substantial and unjustifiable risk’ that the work involves a minor.”  In re Welfare of J.E.M., supra (quoting State v. Mauer, 741 N.W.2d 107 (Minnesota Court of Appeals 2007)).

After considering the arguments and the evidence, the court found that in this case, “the circumstances formed a chain that led directly to [J.E.M.]guilt so as to exclude any reasonable inference other than guilt.” In re Welfare of J.E.M., supra.  It concluded that the “totality of the circumstances” presented by the prosecution reasonably led the trier of fact to infer that J.E.M. “`knew’ or `had reason to know’ the pornographic work on his laptop involved a minor.”  In re Welfare of J.E.M., supra.  

J.E.M. argued that “without proof that [he] knowingly obtained the files, viewed . . . or consciously failed to view [them] under circumstances that a reasonable person would have had reason to know [they]were suspect,” the prosecution hadn’t proved he “knew” or “had reason to know” beyond a reasonable doubt. In re Welfare of J.E.M., supra.  J.E.M. pointed out that there were

 

54 suspected images of child pornography in a folder containing 5,250 thumbnails, making it unlikely [he] viewed each one of these images. Even though the files containing child pornography had been accessed and moved, no evidence showed anyone doing so actually viewed the files or knew their content. Hanson also established that someone having accessed a folder in a thumbnail view causes thumbnails to be created even if the computer user has never viewed the files. 

In re Welfare of J.E.M., supra.  

The Court of Appeals found that “circumstantial evidence presented at trial” supported the prosecution’s theory that J.E.M. “was at least `subjectively aware of a “substantial and unjustifiable risk” that the work involve[d] a minor.’” In re Welfare of J.E.M., supra (quoting State v. Mauer, 741 N.W.2d 107 (Minnesota Court of Appeals 2007)). 

This included evidence that he “was using his computer on December 29, 2008, at or around the time Hanson downloaded the . . . child pornography from [his laptop,” that he “likely accessed the folder where the images were found and manipulated those files [so] they were no longer accessible” and that at the time he “accessed Shareaza through the password-protected VISTA partition the files still retained names tending to suggest” they contained child pornography. In re Welfare of J.E.M., supra.  The court also noted the “evidence that 54 child pornography thumbnails were likely accessed shortly after the download, in gallery view or at least thumbnail view.”  In re Welfare of J.E.M., supra.  

Finally, the Court of Appeals relied on Hanson’s testimony about use of the

password protected UBUNTU partition, which demonstrated the user accessed the `truecrypt7’ mounted drive, then a subfolder in the folder entitled `Shareza¤wnloads,’ and then a return to the `truecrypt7’ mounted device's `$RECYCLE.BIN.’ This occurred at 2:19 p.m. on December 29, 2008. Hanson identified 52 child pornography thumbnails also in the UBUNTU partition with last access dates of December 29, 2008, at approximately 2:18 p.m. . . .

Hanson prepared four slides which demonstrate that the computer user likely viewed these child pornography images in gallery view or that they were at least brought up in thumbnail view.  

In re Welfare of J.E.M., supra.  

The court therefore held that when

viewed in a light most favorable to the conviction, the evidence presented by the state was sufficient for the fact-finder to reasonably infer beyond a reasonable doubt that appellant constructively possessed pornographic work with reason to know that the content and character of the work was pornographic work containing minors.

In re Welfare of J.E.M., supra.  

For this and other reasons, it affirmed J.E.M.’s conviction and sentence.  In re Welfare of J.E.M., supra.  

“New Evidence” vs. “New Theory”

After Alex Cook was convicted of “one count each of receipt, distribution and possession of child pornography” in violation of federal law, he filed a motion for a new trial under Rule 33 of the Federal Rules ofCriminal Procedure.  U.S. v. Cook, 2012 WL 1455217 (U.S. District Court for the NorthernDistrict of Ohio 2012).

All I can find out about the facts and charges in the case come from an FBI press release issued on December 8, 2010.  It says that

an indictment was filed against Alex D. Cook, age 19, of Lima, Ohio. The charge relates to distribution of child pornography between on or about June 21, 2010 through September 16, 2010. . . .

Getting back to Cook’s motion n, Rule 33(a) allows a federal district judge “vacate any judgment and grant a new trial if the interest of justice so requires.” It also requires that the defendant first make a motion seeking such relief from a conviction.  Rule 33(b) sets out two grounds for granting a defendant’s Rule 33(a) motion. 

One is a “motion for a new trial grounded on newly discovered evidence”, which must be filed within 3 years after the verdict or finding of guilty.”  Rule 33(b)(1), Federal Rules of Criminal Procedure.  

The other is “a motion for a new trial grounded on any reason other than newly discovered evidence” which must be filed “within 14 days after the verdict or finding of guilty.” Rule 33(b)(2), Federal Rules of Criminal Procedure.  (Cook was convicted on September 9, 2011, which we’ll get to in a moment.  U.S. v. Cook, supra.)

Cook’s Rule 33(a) motion was predicated on his contention that he had “discovered new evidence that should compel a new trial so that it can be heard.”  U.S. v. Cook, supra. His

rationale for a new trial is that he was denied his constitutional right to due process because his counsel was not permitted time to investigate a theory of the crime, and that post-trial investigation has allowed his lawyer to develop a new theory that could potentially change the jury's verdict.

The new theory, based on affidavits from trial consultant Bill Jonke and forensic computer examiner Mark Vassel, is that an unknown third party may have hacked into [Cook’s] wireless router, either using [his] password or a code breaking piece of software.

U.S. v. Cook, supra.

Cook apparently presented testimony or affidavits from Jonke and Vassel:

Vassel states that he knew this was a possibility, but did not tell [Cook’s] counsel about it because of the short time counsel had to prepare for trial (roughly a month). Such an analysis, he says, would have taken at least ninety days.

Neither Vassel nor Jonke appears to have completed the analysis in the interim; Jonke simply says that he discussed the viability of the theory with a Carl Herkimer. Herkimer, who has no formal credentials as a computer expert, showed Jonke that this sort of third-party breach could theoretically occur and prepared a presentation to that effect.

U.S. v. Cook, supra.

The opinion also notes that a “juror, William Rexer, also provided an affidavit swearing that he may have changed his vote had the theory been presented.”  U.S. v. Cook, supra.  In a footnote, the federal district judge who has this case explained that

federal courts generally disfavor post-trial contact with jurors. . . . The duty of a juror is a solemn and serious one, to be free of unnecessary intervention or interrogation by counsel even after the jury renders its verdict.

Any juror who takes his job seriously should be open to persuasion by a competently presented and factually-backed theory of the case. Defense counsel's questioning and presentation of new theories to jurors was inappropriate. . . .

U.S. v. Cook, supra.

The judge also noted that because it was inappropriate, if he were “to reach the fourth prong of the newly discovered evidence test, I would not use Rexer's affidavit as evidence of a likely acquittal.”  U.S. v. Cook, supra. (We’ll get to that.)

The judge began his analysis of Cook’s new trial motion by pointing out that if he interpreted it as a Rule 33(b)(2) motion

claiming his due process rights were violated, then [Cook’s] motion is time-barred. He filed the motion on February 24, 2012, more than five months after the jury rendered its verdict.

Because [Cook] ultimately argues that he has discovered new evidence requiring a new trial, I will only consider whether he has met the standard for a Rule 33 motion for a new trial on the grounds of new evidence.

U.S. v. Cook, supra.

The judge explained that the U.S. Court of Appeals for the 6thCircuit – whose decisions are binding on federal district courts in Kentucky, Ohio, Michigan and Tennessee, has

adopted the following standard for determining whether a new trial based on newly discovered evidence is warranted:

To obtain a new trial on this basis, a defendant must show that: (1) the new evidence was discovered after the trial; (2) the evidence could not have been discovered earlier with due diligence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence would likely produce an acquittal.

U.S. v. Cook, supra (citing U.S. v. Barlow, 693 F.2d 954 (6^th Cir. 1982)). (As noted above, the judge said that even if he were “to reach the fourth prong of the newly discovered evidence test," he would not "use Rexer's affidavit as evidence of a likely acquittal", for the reasons noted above.  U.S. v. Cook, supra.)

He also pointed out that “[t]rials based on newly discovered evidence are disfavored.”  U.S. v. Cook, supra (citing U.S. v. O’Dell, 805 F.2d 637 (6^th Cir. 1986)).

The judge then explained that a “threshold question” in ruling on Cook’s motion for a new trial was

whether the “evidence” in question is, in fact, evidence, or instead a newly discovered theory. At trial, Vassel testified that none of the files at issue in this case had been opened or displayed while on [Cook’s] laptop.

What [Cook] now submits on motion is not additional, newly discovered evidence of how the files ended up unopened on his laptop, but instead a new theory to explain the evidence Vassel already introduced at trial.

U.S. v. Cook, supra.

He then outlined the applicable legal principles  for determining whether Cook was relying on new evidence or a new theory:

`Newly discovered evidence does not include new legal theories or new interpretations of the legal significance of the evidence.’ U.S. v. Olender, 338 F.3d 629 (6th Cir. 2003).

`Evidence will not be deemed ‘newly discovered’ simply because it appears in a different light under a new theory. [A] party who desires to present his case under a different theory [i]n which facts available at the original trial now first become important, will not be granted a new trial.’  [U.S. v. Olender], supra  (quoting U.S. v. Hamling, 52 F.2d 758 (U.S. Court of Appeals for the 9th Circuit 1975)).

`An attempt to relitigate the case on a new theory is not considered newly discovered evidence but is merely newly discovered issue of law. [U.S. v. Olender], supra (citing U.S. v. Shelton, 459 F.2d 1005 (9th Cir. 1972)).

After applying these principles, the judge denied Cook’s motion for a new trial:

[Cook’s] `new evidence’ is a presentation showing that it is possible for a third party to have performed a set of actions that might have led to the presence of child pornography on [his] computer.

[Cook] provides no actual new evidence that this occurred -- he simply reiterates the discrepancies his expert previously alleged at trial as the basis for his theory. The presentation, then, is simply a new theory explaining those facts already made available to and considered by the jury.

U.S. v. Cook, supra.