State v. Dean
382 S.W.3d 218
| Mo. Ct. App. | 2012Background
- Defendant Gary Dean was convicted after a bench trial of possessing child pornography under § 573.037.1.
- State's evidence centered on Exhibit 2, a page from an astronomy book with three marked pictures (A–C) depicting unclothed minor girls in sexually suggestive poses.
- Trial court alone examined the pictures and concluded they depicted girls under age 14 and that the material was obscene under § 573.010.
- The information charged possession of obscene material with a minor participant or appearance of a minor in sexual conduct, with the age under 14 defined by § 573.010(1).
- Defendant was initially placed on probation after sentencing; probation violations led to a three-year prison sentence, prompting appeal.
- On appeal, Defendant raises two issues challenging the sufficiency of the evidence regarding sexual conduct and the under-14 age requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of sexual conduct proof | Pictures A–C show sexual conduct under § 573.010(17). | The photos depict nude children, not sexual conduct. | Sufficient evidence; Picture A supports sexual conduct under the statute. |
| Variance between information and evidence | Information encompassed the charged offense; Pictures A–C form the basis. | Variance to an uncharged depiction (Picture A) invalidates the charge. | Not reversible; variance not material or prejudicial; plain error review denied. |
| Age of the depicted children | Evidence showed the children were under 14; the trial court so found. | No proof beyond reasonable doubt that depicted children were under 14. | Sufficient evidence to prove under-14 age; rational finder could conclude under 14. |
| Real child versus computer-generated image | Pictures depict real children; court need not require expert proof. | Evidence insufficient to prove real child without expert testimony. | No facial plain error; record supports finding that depicted child was real. |
Key Cases Cited
- State v. Oliver, 298 S.W.3d 437 (Mo. banc 2009) (photographs can depict sexual conduct through apparent stimulation)
- State v. Liberty, 370 S.W.3d 537 (Mo. banc 2012) (standard for reviewing sufficiency of evidence in court-tried cases)
- State v. Kamaka, 277 S.W.3d 807 (Mo. App. 2009) (definition and application of sexual conduct in child-pornography cases)
- State v. Nash, 339 S.W.3d 500 (Mo. banc 2011) (standards for reviewing evidence in appellate courts)
- State v. Crawford, 68 S.W.3d 406 (Mo. banc 2002) (court findings in bench trials have force of verdict)