269 So. 3d 244
Miss. Ct. App.2018Background
- Lowe was tried for five counts of exploitation of a child (possession of child pornography) after forensic review of a laptop recovered from people who had custody of it; five videos of child pornography were found under a passworded account linked to Lowe.
- Witnesses (victim C.S., girlfriend Marie Taylor, Taylor’s daughter) testified Lowe owned the laptop, kept a passworded “Muzicman” account he told them not to use, and had shown a child a video of naked persons; Taylor and others had access to a non-passworded account.
- Lowe fled Mississippi after police began investigating; he was later found in California and returned. He was a probationer from a prior exploitation/voyeurism conviction at the time of the search.
- Police obtained a warrant to search the laptop’s contents; Lowe moved to suppress arguing insufficient probable cause and overbreadth; the trial court denied suppression and later denied other pretrial/pro se motions (including a Franks hearing).
- At trial, defense counsel’s questioning suggested a third party (Stringer’s stepson) might have accessed the laptop; the State then elicited Lowe’s prior child-pornography conviction under Rule 404(b) for identity/motive; Lowe was convicted and sentenced as a habitual offender to five consecutive life terms.
- On appeal Lowe raised numerous challenges (jury instructions, sufficiency/weight of evidence, admission of prior conviction, flight evidence/instruction, suppression, and several pro se claims); the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Lowe) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether court erred by refusing circumstantial-evidence instruction | Trial should have received circumstantial-evidence instruction because possession was proved circumstantially | Direct evidence existed (videos on laptop, ownership/control, eyewitness account) so circumstantial instruction unnecessary | Denied: court properly refused the circumstantial-evidence instruction because combined evidence constituted direct evidence of constructive possession |
| Ineffective assistance of counsel for jury-instruction strategy | Counsel failed to request constructive-possession instruction and mishandled other instruction issues | Tactical choices by counsel; record not adequate to show constitutional ineffectiveness on direct appeal | Denied on direct appeal; claim preserved for post-conviction relief because record does not affirmatively show ineffectiveness |
| Sufficiency and weight of evidence | Evidence insufficient and verdict against weight (no proof Lowe downloaded or viewed files) | Evidence (videos on Lowe's account, ownership/control, witness account, workplace access) sufficient and weight supports verdict | Affirmed: evidence sufficient; not contrary to overwhelming weight of evidence |
| Admission of prior conviction under Rule 404(b) after defense suggested third-party access | Admission was improper and unduly prejudicial; no proof third party accessed laptop | Defense opened the issue; prior conviction admissible for identity/motive under Rule 404(b) | Affirmed: evidence admissible under Rule 404(b) to prove identity/motive; introduction proper |
| Admission of flight evidence and flight instruction | Flight had independent explanations (probation violation, other accusations); prejudicial | Flight was unexplained and probative of consciousness of guilt | Affirmed: flight evidence and instruction were admissible and within trial court discretion |
| Motion to suppress/search warrant validity and breadth; request for Franks hearing | Warrant/affidavit lacked particularity and probable cause; alleged false statements warranted Franks hearing | Totality of circumstances provided probable cause; no substantial showing of falsehood for Franks hearing; good-faith exception applies if needed | Affirmed: magistrate had substantial basis for probable cause; Franks hearing not warranted; warrant properly applied |
| Jury viewing of child-pornography videos | Improper without further foundation, provenance, or limiting review outside jury; unduly prejudicial | Viewing was probative to let jury determine whether files depicted child pornography; foundation and Rule 403 considered by trial court | Affirmed: trial court did not abuse discretion in admitting and showing videos to jury |
| Omission of phrase "from the internet" in instructions (constructive amendment) | Omitting phrase constructively amended indictment by broadening theory of conviction | Statute covers receiving via computer; proof of files on laptop suffices—internet origin not essential element | Affirmed: omission did not alter an essential element; no constructive amendment |
Key Cases Cited
- Foley v. State, 914 So. 2d 677 (Miss. 2005) (circumstantial-evidence instruction unnecessary when direct evidence exists)
- Argo v. State, 13 So. 3d 849 (Miss. Ct. App. 2009) (examples of direct evidence include eyewitness testimony and admissions)
- Keys v. State, 478 So. 2d 266 (Miss. 1985) (constructive possession defined by dominion or control)
- McClain v. State, 625 So. 2d 774 (Miss. 1993) (standard for reversing sufficiency of evidence)
- Burgess v. State, 178 So. 3d 1266 (Miss. 2015) (jury-instruction abuse-of-discretion standard)
- Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (when a defendant makes a substantial showing that affidavit contained false statements, a hearing is required)
- United States v. Leon, 468 U.S. 897 (U.S. 1984) (good-faith exception to exclusionary rule)
- Bell v. State, 725 So. 2d 836 (Miss. 1998) (constructive amendment doctrine and variance analysis)
- United States v. Adams, 778 F.2d 1117 (5th Cir. 1985) (distinguishing constructive amendment from harmless variances)
- Renfrow v. State, 34 So. 3d 617 (Miss. Ct. App. 2009) (probable cause to search computer where children reported exposure to images and abuse)
- Fuselier v. State, 702 So. 2d 388 (Miss. 1997) (flight admissible when unexplained and probative of guilt)