State of Minnesota, Respondent, vs. Steven Frederick Dodd, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-03-320

 

State of Minnesota,

Respondent,

 

vs.

 

Steven Frederick Dodd,

Appellant.

 

Filed December 9, 2003

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 01056696

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)

 

Daniel Guerrero, Jonathan M. Peck, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)

 

 

 

            Considered and decided by Klaphake, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant challenges his conviction and sentence for six counts of possessing a pornographic work involving a minor, Minn. Stat. § 617.247, subd. 4 (2000), arguing (1) the applicable definition of "pornographic work" set forth in Minn. Stat. § 617.246, subd. 1(f)(2)(i), (ii) (2000) is unconstitutionally overbroad and (2) the district court abused its discretion by refusing to allow his proposed theory-of-defense jury instruction.  We affirm.

FACTS

In July 2000, Maple Grove police executed a search warrant at appellant Steven Frederick Dodd's residence after viewing images on a CD belonging to appellant and submitted to them by appellant's son.  The police seized various pieces of computer equipment, which were submitted to the Bureau of Criminal Apprehension (BCA) for analysis.

            During a non-custodial interview conducted at the time of the search, appellant admitted to downloading and possessing pornographic images involving children but explained that he was compiling the images as part of an investigation to identify the sources of child pornography on the Internet.  Appellant stated that he intended to submit the results of the investigation to the authorities. 

            The BCA discovered "at least" hundreds of images meeting the statutory definition of child pornography on the various computer storage media seized during the search of appellant's residence.  Appellant was charged with three counts of violating Minn. Stat. § 617.247, subd. 4 (2000), possession of pornographic work involving a minor, as defined by Minn. Stat. § 617.246, subd. 1(f) (2000).  He pleaded not guilty and filed a motion to dismiss the complaint, arguing that Minn. Stat. § 617.247, subd. 4 unconstitutionally shifts the burden of proving the crime's age element to the defendant.

            Appellant's case was consolidated with eight other cases involving charges under Minn. Stat. § 617.247, subd. 4.  The district court then issued an order denying appellant's motion to dismiss and addressing other defendants' constitutional challenges to Minn. Stat. § 617.247, subd. 4.  The court ruled that the definition of "pornographic work" in Minn. Stat. § 617.246, subd. 1(f)(2)(iii) was unconstitutionally overbroad, reasoning that the Supreme Court had recently struck as overbroad a substantively identical provision, 18 U.S.C. § 2256(8)(D) (2000), from the Child Pornography Prevention Act of 1996.  Ashcroft v. Free Speech Coalition, 535 U.S. 234, 258, 122 S. Ct. 1389, 1406 (2002).  The district court severed the unconstitutional provision and gave the state permission to amend the complaint. 

            The state filed an amended complaint charging appellant with six counts of possessing a pornographic work involving a minor as defined by Minn. Stat. § 617.246, subd. 1(f)(1) and/or 1(f)(2)(i) or (ii).  At the beginning of trial, appellant proposed a jury instruction that would allow the jury to find him innocent if he could prove that he downloaded and possessed the prohibited images with the good-faith intent to submit them to the authorities to assist in identifying their creators and disseminators.  The court declined to give the instruction.  Appellant then waived a jury trial.  A representative sample of the images discovered pursuant to the search of appellant's residence was received into evidence during trial. 

            There was no dispute at trial that appellant downloaded and possessed six images that came within the statutory definition of pornographic work involving a child and that he did so with knowledge of the work's content.  Instead, appellant continued to present his "good-faith" defense, arguing that after receiving unsolicited pornographic images of children as online "pop-up" advertisements, he began collecting the images and attempting to physically locate their disseminators, intending to ultimately share this information with the authorities. 

            The district court found appellant guilty as charged.  The court observed that even were it to accept appellant's good-faith defense theory, the evidence presented including the hundreds of illegal images in appellant's possession, the fact that many images were hidden in a file labeled "taxes" in his computer, and the fact he never actually went to the police with his information did not credibly support appellant's theory.  The court sentenced appellant to 21 months in prison, stayed for three years subject to various conditions, and 180 days in jail.  This appeal follows. 

D E C I S I O N

            Appellant argues that Minn. Stat. § 617.246, subd. 1(f)(2)(i) and (ii) (2000) are unconstitutionally overbroad because the provisions prohibit depictions of sexual activities not involving real children.  In support, appellant relies on Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002), in which the Supreme Court struck as overbroad 18 U.S.C. § 2256(8)(B) (2000), a provision of the Child Pornography Prevention Act of 1996 that prohibited the possession of images of virtual, or computer-generated images of children.  Ashcroft, 535 U.S. at 241-42, 256, 122 S. Ct. at 1397, 1405.

            Because appellant did not make this argument to the district court either in his motion to dismiss or elsewhere, we would generally deem this issue waived.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating appellate courts generally address only issues presented to and considered by the district court).  Even were the issue not waived, appellant's constitutional challenge must fail pursuant to this court's recent holding in State v. Fingal, 666 N.W.2d 420, 426 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003), that Minn. Stat. § 617.246, subd. 1(f)(2)(i) and (ii) are not unconstitutionally overbroad because they only criminalize possession of pornographic works involving real children. 

In Fingal, the court observed that, insofar as Minn. Stat. § 617.246, subd. 1(f)(2)(i) prohibits possession of any visual depiction that "uses a minor to depict actual or simulated sexual conduct," and Minn. Stat. § 617.246, subd. 1(f)(2)(ii) prohibits possession of any visual depiction that has been "created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct," neither provision criminalizes possession of images of virtual children, and Ashcroft's distinction between actual child pornography and virtual child pornography is not implicated:  "While the depiction may be computer-generated and the sexual conduct may be simulated, the minor may be neither computer-generated nor simulated but must be . . . a ‘person under the age of 18.'"  Fingal, 666 N.W.2d at 425 (quoting Minn. Stat. § 617.246, subd. 1(b) (2000)). 

II.

            Appellant argues the district court's refusal to give his proposed jury instruction deprived him of the right, as guaranteed by the Due Process Clauses of the United States Constitution and the Minnesota Constitution, "to be treated with fundamental fairness and afforded a meaningful opportunity to present a complete defense."  State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quotation omitted).  We disagree.

            This court reviews a district court's refusal to give a jury instruction for an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  The focus of the analysis on review is on whether the refusal resulted in error.  State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001).

            Appellant's "Theory of Defense" jury instruction concedes his possession of child pornography, but argues that insofar as the law criminalizing the possession of child pornography

is written to subject criminal punishment to those people who harbor illicit desires for children or intend to promote the sexual exploitation of children.

 

            . . . .

 

. . . It is the State's burden to prove to [the jury] . . . that [appellant] acted with the intent to harbor illicit desires for children or with the intent to promote the sexual exploitation of children.

 

appellant's proposed jury instruction, in effect, would add an element to the crime and urge the jury to exonerate him if the state failed to prove the additional element.  The statute's scienter language plainly, and only, requires that the state show that a defendant possesses child pornography "knowing or with reason to know its content and character."  Minn. Stat. § 617.247, subd. 4.  There is no other element concerning the defendant's motive, intent, or state of mind with respect to the prohibited material. 

Moreover, as the district court noted, the evidence presented at trial simply did not support appellant's theory, even under his proposed instruction.  Even if the court had erred by declining to give the instruction, the error had no possible effect on the outcome of the trial.

            Affirmed.