STATE of South Dakota, Plaintiff and Appellee, v. David CHRISTENSEN, Defendant and Appellant.
Nos. 22442, 22443.
Supreme Court of South Dakota.
Decided May 28, 2003.
2003 SD 64. Argued March 26, 2003.
[¶ 24.] Affirmed.
[¶ 25.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.
[¶ 26.] VON WALD, Circuit Judge, for SABERS, Justice, disqualified.
Phillip O. Peterson, Clay County Public Defender, Beresford, South Dakota, Attorney for defendant and appellant.
GILBERTSON, Chief Justice.
[¶ 1.] David Christensen (Christensen) was convicted of possession of marijuana and two counts of possession of child pornography. We affirm his conviction.
FACTS AND PROCEDURE
[¶ 2.] On June 29, 2001, a day after Christensen was detained at the Human Services Center (HSC) in Yankton, South Dakota for a psychological evaluation, his neighbor in Irene, South Dakota was granted a protection order against him.1 Christensen was served notice of this order while at HSC. As part of that order, Christensen was to surrender all of his firearms to the Clay County Sheriff. The proteсtion order also gave the Sheriff the power to take necessary steps to obtain the firearms if they were not surrendered. After waiting approximately 48 hours for compliance by Christensen, Clay County Sheriff Passick, Irene Police Chief Nelson and Deputy Sheriff Howe went to Christensen‘s residence in Irene to obtain the guns.
[¶ 3.] Upon entering the unlocked residence, the officers saw marijuana, marijuana paraphernalia and several weapons, including loaded high-powered assault weapons. The law enforcement officers took the guns and went to Vermillion to apply for a search warrant for various drugs and paraphernalia. The circuit
[¶ 4.] While the law enforcement officers were executing the warrant at Christensen‘s residence, they came across a trunk in his bedroom, which they opened. Inside the trunk were various videotapes, some with sexually suggestive titles2 and photographs that depicted nude female children. During the course of the search, over a pound of marijuana and homemade “surveillance” videos3 of young female children were also found. Additionally, magazines for small children such as “Nickеlodeon” and “Jack and Jill” were discovered, although no children lived in the residence.
[¶ 5.] A separate search warrant was then granted by the circuit court that authorized the officers to view the videotapes and magazines. Most of the contents of these videos and magazines were admitted at trial, over Christensen‘s objections. Ultimately, Christensen was charged with 77 counts of possession of child pornography and one possession of marijuana. After a jury trial, he was convicted on two counts of possession of child pornography and for the possession of marijuana, from one to ten pounds. Christensen received a five-year prison sentence for the possession of marijuana, and one year each for the convictions of possession of child pornography, for violation of
[¶ 6.] Christensen raises the following issues for appeal:
- Whether exigent circumstances were present to justify the officers’ entry without a search warrant into Christensen‘s home in order to obtain the weapons.
- Whether the trial court should have suppressed the videos and magazines found in the search of Christensen‘s residence.
- Whether the “surveillance” videos were properly admitted at trial as “other acts evidence” to show Christensen‘s intent in possessing the alleged child pornography.
STANDARD OF REVIEW
[¶ 7.] Factual findings by the trial court are reviewed under the clear
[¶ 8.] In admitting evidence as оther acts evidence, the trial court will not be reversed absent an abuse of discretion. Novak v. McEldowney, 2002 SD 162, ¶ 7, 655 N.W.2d 909, 912 (citations omitted). Furthermore, the evidentiary ruling must be shown to be prejudicial error. Id.
ANALYSIS AND DECISION
[¶ 9.] 1. Whether exigent circumstances were present to justify the officers’ entry without a search warrant into Christensen‘s home in order to obtain the weapons.
[¶ 10.] Christensen argues that his Fourth Amendment rights were violated when the officers entered his residence without a search warrаnt to obtain the guns. Further, he asserts that the officers knew that he was being held at HSC and was aware that he had been trying to contact a friend to lock his house and give his guns to the officers. The State contends that the officers’ actions were justified because of “exigent” circumstances, and that the protection order gave them the authority to take whatever steps deemed necessary to obtain the guns.
[¶ 11.] The Fourth Amendment of the Constitutiоn guarantees citizens the protection from the unlawful searches and seizures by government actors.
[¶ 13.] In determining whether exigent circumstances exist, “it is important to point out ... that safety factors are a valid consideration.” State v. Boll, 2002 SD 114, ¶ 48, 651 N.W.2d 710, 722-23 (Konenkamp, J, concurring specially) (citing Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978); Michigan v. Tyler, 436 U.S. 499, 509-10, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486 (1978)). Moreover, in United States v. Antwine, 873 F.2d 1144 (8th Cir.Ct.App.1989), the Eighth Circuit Court of Appeals held that a warrantless search for a gun inside defendant‘s house was not unconstitutional. In that case, the officers went into defendant‘s house, after he had been arrested in his yard, to retrieve a gun that defendant had earlier disрlayed. 873 F.2d at 1146. The officers were concerned for the safety of the two children who were inside the house. That court found that “the clear implication of [New York v. Quarles] is that a warrantless seizure of a weapon may be considered ‘reasonable’ within the meaning of the Fourth Amendment when justified by an officer‘s legitimate concern for someone‘s safety.” Id. at 1147 (citing Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984)).
[¶ 14.] In this case, under this particular set of facts, we find that the officers’ entry into Christensen‘s home to rеtrieve the weapons when the protection order provided for such action, and because of the exigency of the situation, did not violate Christensen‘s Fourth Amendment rights.6
[¶ 16.] Christensen, who was mentally unstable to the point of being placed at HSC at the time that the officers entered his home, had made threats to neighbors and other people around the town of Irene. He also had admitted to law enforcement officers that he often was armed and wore a bullet proof vest. Because the officers knew that Christensen had several firearms in his residence, and that he was going to be released from HSC at any time, their belief that the weapons posed a serious threat to the safety of the public was reasonable. See Lamont, 2001 SD 92, ¶ 21, 631 N.W.2d at 610 (determining that in assessing whether the Fourth Amendment has been violated, the officers’ actions must be analyzed to determine if their actions were objectively reasonable). Further, this threat was apparent by the express terms of thе protection order. The order gave Christensen notice that he must hand over all of his weapons to law enforcement, or otherwise, law enforcement would take whatever steps necessary to make sure that the firearms were recovered. Although Christensen argues that the officers knew that he had been trying to make arrangements with a friend to obtain the firearms and turn them over, this friend could have given the firearms back to Christensen in violation of the protection order.
Finally, the officers’ application for the search warrant set out law enforcement‘s contact with Christensen, including that he was in the HSC, he was attempting to contact others to retrieve the guns for him, and that it had been two days since receiving the requirement that he turn over his guns without any action.
[¶ 17.] Christensen next argues that the “plain view” exception to the warrant requirement does not apply in this case because the marijuana and paraphernalia were observed when the officers were unlawfully in the residence. However, because we held above that the officers were lawfully inside Christensen‘s residence to obtain the firearms, the marijuana and other incriminating evidence were within their “plain view” and therefore, this exception to the warrant requirement applies. See State v. Wellner, 318 N.W.2d 324, 329 (S.D.1982) (holding that if a law enforcement officer is lawfully engaged in an activity in a particular place, and they view a suspicious object, they may seize it immediately).
[¶ 18.] 2. Whether the trial court should have suppressed the videos and magazines found in the search of Christensen‘s residence.
[¶ 19.] Having determined that the officers’ entry was reasonable and not in violation of Christensen‘s Fourth Amendment rights, we next turn to whether certain videotapes that were discovered during the course of seаrching the residence pursuant to a validly executed warrant were properly admitted against Christensen at trial.
[¶ 20.] In the course of obtaining Christensen‘s firearms, the officers saw many incriminating items in his residence, such as marijuana and marijuana paraphernalia. Instead of seizing these items, they first went to the circuit judge and obtained a warrant to search the residence. Although the search warrant provided that the search was for drugs, drug paraphernalia, illegal weapons, and items to indicate an intent to distribute drugs,
[¶ 21.] We agree with the State and hold that the pornographic materials found in Christensen‘s residence were properly seized and it was not error for them to be subsequently admitted at trial. In State v. Larkin, 87 S.D. 61, 64-5, 202 N.W.2d 862, 864 (1972) (citations omitted), we stated that “where а police officer while in the course of a lawful search pursuant to a valid search warrant inadvertently uncovers evidence of another crime ... the police officer may seize the evidence although it is not described in the warrant.” Furthermore, according to Larkin, 87 S.D. at 65, 202 N.W.2d at 864:
The cases recognizing this exception have emphasized that before such a seizure will be lawful, the original search must be directed in good faith toward finding оbjects described in the search warrant and, in addition, the police officer must have probable cause to believe the inadvertently discovered evidence is in fact seizable.
[¶ 22.] In the instant case, the police officers were conducting a thorough search of Christensen‘s residence in order to find illegal drugs, paraphernalia and firearms. When they discovered the trunk, it was reasonable for them to look inside to find such items. Instead, they found sexually explicit material which contained images of nude children and sexually suggestive titles of movies. Christensen argues that the officers did not have probable cause to believe that the tapes and magazines were seizable simply because the materials contained depictions of nude children.
[¶ 23.] The probable cause standard has been defined in State v. Zachodni, 466 N.W.2d 624, 629 (S.D.1991). According to Zachodni, probable cause justifying a search exists if “the facts found by the court or the magistrate would lead a reasonаble and prudent person to believe it fairly probable that a crime had been committed and that evidence relevant to the crime would be uncovered by the search.” Id. at 629 (additional citations omitted). Furthermore, the probable cause determination is a function of “the totality of relevant circumstances.” Id. (citations omitted).
[¶ 24.] When the law enforcement officers saw videotapes with suggestive titles together with magazine covers containing рictures of naked children, it provided evidence of a possible crime. Quite obviously, in view of the “totality of relevant circumstances,” a reasonable and prudent person would view such material as relevant evidence of a crime. We, therefore, hold that this evidence was properly admitted against Christensen at trial.
[¶ 25.] 3. Whether the “surveillance” videos were properly admitted at trial as “other acts evidence” to show Christensen‘s intent in possessing the alleged child pornography.
[¶ 26.] In this final issue, Christensen argues that the “surveillance” videos were improperly admitted against him at trial. First, he asserts that there was no evidence that the surveillance videos were taken by Christensen or that it is his voice making the sexual comments about the children that were videoed. Second, he argues that the mental status of defendant was not relevant as to whether the material is child pornography. The trial court granted the State‘s motion to use the videos at trial to show Christensen‘s state of mind and intent of viewing nude depictions of small children. However, the trial court excluded some of the tapes; it
[¶ 27.] Under
Furthermore, this is a rule of inclusion and the trial judge may exclude such evidence only on the basis of prejudice, confusion, or waste of time. SeeEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Relevance under § 404(b) is established “only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.” Furthermore, the relevance of § 404(b) evidence is determined by a lower standard of proof than that required for a conviction.
SDCL 19-9-8 (Rule 104(b)). The proponent has the burden of showing the relevance of the other crimes, wrongs, or acts. SeeSDCL 19-12-1 (Rule 401);SDCL 19-12-2 (Rule 402);SDCL 19-12-5 (Rule 404(b)).
[¶ 28.] The trial court did not abuse its discretion when it allowed the tapes into evidence. The State, as part of its case, had to prove each element of
[¶ 29.] KONENKAMP and ZINTER, Justices, concur.
[¶ 30.] MEIERHENRY, Justice, concurs in result.
[¶ 31.] SABERS, Justice, concurs in part and dissents in part.
MEIERHENRY, Justice (concurring in result).
[¶ 32.] I concur in result, but write specially on Issue I.
[¶ 33.] I would affirm the trial court‘s ruling because Christensen did not preserve this issue for appeal. The hearing in which the trial court determined that the initial entry of Christensen‘s home without a warrant was lawful was not transcribed for this Court‘s review. Without a transcript of the hearing, we cannot say whether the state did or did not present sufficiеnt evidence of exigent circumstances to justify the warrantless entry of Christensen‘s residence. We can only presume the trial court ruled properly. We have consistently held with an incomplete appellate record we presume that the trial court acted correctly. State v. Corey, 2001 SD 53, ¶ 12, 624 N.W.2d 841, 844.
[¶ 34.] I concur on Issues 1 and 2 but dissent on Issue 3. It seems clear that these “surveillance” videos were admitted to show that the defendant had a propensity to commit the offenses charged. This is contrary to
Evidence of other ... acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.
[¶ 35.] That is exactly what happened in this case and the State‘s claim of showing “intent” is mere pretense. Unfortunately, this will continue to happen until we force the State to do it over until they do it right.
Notes
This statute has been repealed by SL 2002, ch. 109, § 3.Any person who knowingly possesses any book, magazine, pamphlet, slide, photograph, or film depicting a minor under the age of eighteen years engaging in a prohibited sexual act or in the simulation of such act or whose knowing possession encourages, aids, abets, or entices any person to commit a “prohibited sexual act” is guilty of a Class 6 felony.
Herеin the domestic protection order application and affidavit of the applicant stated:
Circuit Judge Eng upon review of this affidavit issued a domestic protection orderThis has been an on going thing with him approx 2 yrs ago he said he would kill me if I stepped outside has yelled & screamed at my wife and myself many times, we have heard gunshots twice in the last month. I leave for work early in the morning, I fear for my wife‘s safety when I leave. On Sun June 24th he said he “was going to take care of me, and no one would sleep that night.” A shot was fired that night. I request he surrender all firearms to the Clay County Sheriff, and that the Clay County Sheriff be granted authority to enter his residence to confiscate all fire arm[s] immediately.