State v. Martin

2003 SD 153 Dakota, Plaintiff of South

STATE Appellee, Bryon MARTIN, Defendant

John Appellant.

Nos. 22744. Dakota.

Supreme Court South

Argued Nov.

Decided Dec. plaped

al courts impermissible restrictions on his freedbm when prohibited he was owning from a computer, accessing the Internet, possessing pornography, having unsupervised no contact with chil- period years. dren for a of ten For the reasons set forth in opinion, reject arguments and affirm his convic- tions in both County Lawrence and Butte County, South Dakota.

FACTS AND PROCEDURE The source appeal of this can be Avalanche, traced to Operation back a massive state and federal designed effort to crack down on child pornography. As effort, part of that federal in- authorities vestigated a company Texas engaging in the distribution and sale of pornogra- child phy over the Internet. After seizing this records, company’s federal officials discov- ered information regarding the identities of individuals who purchased had child pornography from the business. Federal General, Lawrence E. Long, Attorney eventually officials provided South Dakota Meyer, Ann C. Assistant Attorney Gener- authorities with this customer list which al, Pierre, for plaintiff name, and appellee. included Martin’s credit card num- ber, address, e-mail and other information L. Claggett, David Spearfish, for defen- concerning purchase the pornogra- child dant and appellant. phy. GILBERTSON, Chief Justice. April [¶ On 3.] state investiga- business, tors contacted Martin at his the (Martin) John Martin was convict- Sunshine Healthcare Center located in ed in two South Dakota counties on multi- County, Dakota, Lawrence South concern- ple counts of pornogra- child ing possible Martin’s purchase of por- child phy 22-22-23.1, in violation of SDCL now nography over the Internet. Martin repealed. On appeal, challenges Martin agreed speak to with the investigators, and constitutionality the of the statute based during this process interview he volun- upon the doctrines of overbreadth and teered that he had intentionally sought out vagueness. Martin also raises a due pro- child pornography over the Internet. In challenge regards cess to his multiple addition, voluntarily Martin demonstrated convictions. Martin questions further the to investigators the how he accessed child sufficiency of the evidence used to convict pornography through e-mails that con- error; him. For point his fifth Martin tained website addresses. contends unlawfully his sentence exceeded statutory limits for violation of SDCL Despite his admission that in- he Finally, 22-22-23.1. Martin asserts the tri- tentionally sought out both hard-core and “got[ten] told admitted crusade had hold pornography, Martin child soft-core past year. him” at by point during he was some disgusted investigators Martin, According sexually to after He also admitted that he became the material. by images of pornographic about the evils aroused preach hearing pastor his children he from the began personal he obtained Internet. pornography, of child particular, In- In related he was most this material off the Martin get “crusade” to by experi- accomplish he aroused male children and even goal, his ternet. order orgasms of child enced on several occasions when began compile pornogra- a list Martin print images. to download and he dreamed these con- phy websites $1,000 firmed he had more than images spent of children from the pornographic purchase pornography maintained it child over the In- Martin that was Internet. then ternet. plan his to send these materials to so that Governor Janklow William obtaining After search warrants something get- do about Governor would residence, for Martin’s an business

ting off Internet. investigator specialized with admitted, however, that despite training examined both home had about fact that this “crusade” started computer and business Both computers. earlier, no such letter had ever years three hard-drives contained files with child to Governor Janklow. been written pornographic images involving vaginal in- tercourse, intercourse, fellatio, the interview his anal cun- During [¶ busi- 5.] masturbation, ness, nilingus, posing, indicated he also had a com- nude or Martin addition, in Butte In Mar- puter system at his residence combinations thereof. response In on his web brow- Dakota. to tin’s “favorites” folder County, South investigators, ser contained addresses with such request from the Martin web erotica,” boys,” “Best agreed them to follow him home in names as “Preteen to allow “Flawed, lolitas,” and A through computer. order look his second “PedoLove.” to computers examining subsequent After Martin’s home search on both re- briefly did not computer, detectives asked Martin to vealed the word “Janklow” Spearfish appear any to the Police on document either com- accompany them Department puter. to continue the interview. agreed.

Martin investigation, to this Subsequent station, County juries Lawrence and police investiga- grand At the both County, indicted Mar- was not Butte Dakota tors told Martin he under arrest South possession on of child to leave at time. Martin tin several counts was free 22-22- pornography understood but will- in violation SDCL that he was indicated County, In Martin Lawrence was ing to the interview. Martin contin- 23.1.1 resume charged twenty-nine with counts know- possession ued maintain his of child to ing possession pornography to his based personal was related pornography investiga- twenty-nine upon photographs to the campaign to alert Governor Janklow computer. tors retrieved from his business ease such material could be with which trial, guilty In a court was found Internet. After Martin response from the obtained twenty of child however, on counts of to questioning, further and 22- Legislature convicted SDCL 22-22-23.1 In South Dakota re- under 22-22, pealed only challenges 22-22-23.1 and 22-22-22 and appeal SDCL these stat- seq. to 22- 22-22-24 ef SDCL enacted SDCL utes. place. their Because Martin was 22-25 in pornography. The court then sentenced lation of Fifth and Fourteenth Martin to serve penitentiary concurrent guarantees Amendments’ of Due Pro- - years sentences of two for count. each cess. suspended forty-five The court all but days 3. Whether Martin’s on convictions penitentiary subject of the sentence to cer- multiple counts of Possession of Child tain terms and Among restrictions. these Pornography violated Jeop- the Double prohibitions against restrictions were Mar- ardy Clause of the Fifth Amendment. tin owning possessing 4. Whether there was sufficient evi- pornography. Additionally, Martin was support dence to Martin’s convictions on required register aas sex offender and multiple counts of Possession of Child submit to warrantless searches and sei- Pornography. zures. ten-year Whether proba- County, Butte Martin was tionary periods for his convictions under charged with ten counts of knowing pos- unlawfully 22-22-23.1 exceeded pornography session of child upon based the maximum statutory limits.. ten images recovered from his home com- 6. Whether the trial court properly trial, puter. After a court Martin was prohibited accessing Martin from In- guilty result, found on all ten counts. As a ternet, using a computer, and possessing the trial court sentenced Martin to two years for ten part of his years crime, in the penitentiary for each sentence. concurrently. court, be served The how- ever, suspended following the execution The applies of all but issue forty-five days of subject this sentence to Martin’s conviction in Butte County, South additional only: conditions. Dakota Among these re- strictions were requirements that Martin 7. Whether properly trial court not possess pornography, that he not prohibited Martin any unsuper- from Internet, access the and that he have no vised contact with children under the unsupervised contact with children under age of eighteen years for period a of ten eighteen years age. of years part of his sentence. Martin now appeals 10.] his convic- Affirmed. tions in both County Lawrence and Butte

County. analysis For ease of and because STANDARD OF REVIEW appeal each raises the same substantive Allison, In State v. we articulated challenges, opinion addresses both of the guiding principles we employ in re- appeals. viewing challenges upon based alleged con-

[¶ Martin raises the stitutional following violations: issues in regards to his convictions for Challenges to constitutionality of a of child pornography in both Lawrence statute meet formidable restrictions. County and County, Butte South Dakota: ¶ 48, Hauge, 4, State v. 1996 SD 547 (2001 1. Whether SDCL 22-22-23.1 173, N.W.2d 175. We review such chal-

Version) is unconstitutionally overbroad lenges Sattler, Wegleitner de novo. v. in violation of the First ¶ Amendment’s 88, 4, 688, 582 N.W.2d 689 protection Speech. of Free (citation omitted). recognize We a (2001 2.Whether SDCL 22-22-22 Ver- strong presumption constitutionality. of sion) (2001 and SDCL Panzer, 22-22-23.1 Kyllo 896, Ver- v. 535 N.W.2d 898 sion) (S.D.1995) are unconstitutionally vague in vio- (citing Specht City v. Sioux of

297 (S.D.1995)). 727, charges against motion to him Falls, 729 dismiss 526 N.W.2d be that 22- upon a statute must based his contention To invalidated be legislative power unconstitutionally be of 22-23.1 was overbroad proved a breach City doubt. of yond pro a reasonable Cham in violation the First Amendment’s of Lien, Inc., 521 N.W.2d appeal, berlain v. R.E. tection of On speech. free he (S.D.1994). 130, Only when un 181 his that the statute argument reasserts is constitutionality plainly of statute is unconstitutionally overbroad. As this ar unmistakably shown will we declare gument presents challenge a constitutional it to our constitution. South repugnant statute, to a review is de novo. Weg our Barnett, ¶ Ass’n v. 1998 SD leitner, Dakota Educ. 88, 4, 1998 582 N.W.2d SD 386, 84, ¶ 22, 392 (quoting 582 N.W.2d Walker, 520 241

Poppen v. N.W.2d of is one speech [¶ 17.] Freedom omitted)). (S.D.1994) (citations If a zealously guarded our most cherished and can construed so as not to statute be Constitutional The liberties. First constitution, that construction violate the Amendment to the United States Constitu City Cary Rapid v. adopted. must be “Congress tion declares that shall make no ¶18, 10, City, 1997 N.W.2d SD speech.” ... abridging law the freedom of omitted). (citation Our function is Const, addition, I. In U.S. amend. if un legislative not decide act is South Dakota states Constitution unsound, wise, unnecessary, rath but “[e]very freely write, person may speak, er, it is only whether unconsti to decide publish subjects, being responsi on all tutional. right.” ble for the of that SD abuse ¶ (internal 607 N.W.2d SD Const, VI, expres § art. 5. As freedom of omitted). quotations exchange flowing sion facilitates the free reviewing challenges occupy the very ideas and debate which evidence, “accept sufficiency democracy, any government heart of our evidence, most in and the favorable [the] speech gen on regulation the content therefrom, fairly drawn ferences to be subjected judicial erally to the strictest of support which the verdict.” State will Schuster, Inc. v. review. Simon & Mem ¶ 33, Buchholz, 110, 598 N.W.2d bers the New York State Crime Victims of 899, evidence, “including If cir 905. al., Board, 105, 116, 112 et 502 U.S. S.Ct. cumstantial and reasonable infer evidence (1991); 501, 508, 116 476 see also L.Ed.2d reasonably sup ences therefrom” drawn Dept. Mosley, v. 408 Chicago Police U.S. of ports theory guilt, of will affirm the 92, 95, 2286, 2289, 33 L.Ed.2d 212 92 S.Ct. conviction. Id. (1972). AND DECISION ANALYSIS upon prohibition The 22-22-23.1 [¶ Whether SDCL 15.] speech is government regulation of not (2001 Version) unconstitutionally inviolate, may government however. The of overbroad violation the First words,” defamation, “fighting in regulate protection Free Amendment’s of citement, speech without vio obscene Speech. lating Chaplinsky Amendment. First 568, 571-72, Hampshire, 315 Martin was on v. New U.S. convicted 766, (1942); 769, 1031 of 62 86 L.Ed. possession por several of S.Ct. counts Schuster, 127, at & 502 U.S. of SDCL 22-22-23.1. see Simon nography violation J., (KENNEDY, concur- trial, an 112 at 514 Before Martin made unsuccessful S.Ct. 298 (c)whether

ring); work, see also Sable whole, Communications taken as a of FCC, 115, California, literary, artistic, Inc. v. 492 lacks political, U.S. serious 125-26, 2829, 2836, or scientific 109 S.Ct. 106 L.Ed.2d value. (1989). hand, govern-

93 On the other (internal 24, 413 U.S. 93 S.Ct. at 2615 regulation speech ment of which is mere- omitted). Thus, citations in order for the ly subjected “offensive” will be to the government freely regulate pornogra- scrutiny strict of standard review. Cohen phy, the material must be obscene under 15, 22-26, California, v. 403 91 U.S. S.Ct. the Miller v. three-part analy- California 1780, 1786-89, (1971); 29 L.Ed.2d 284 see sis. Paul, Minnesota, City RAV v. St. 505 of Pornography involving [¶20.] chil 377, 395-96, 2538, 2550, 112 U.S. S.Ct. dren, however, unprotected is an class of (1992) (striking L.Ed.2d 305 down as speech and is afforded no constitutional overbroad an ordinance criminalizing cer- protection under the First Amendment. tain types speech”). of “hate Ferber, 747, New York v. 458 U.S. (1982). S.Ct. 73 L.Ed.2d 1113 States regulation [¶ 19.] Government of may regulate therefore and criminalize proven has particular to be a child pornography without satisfying the ly contentious area in country’s free Miller v. obscenity standard. California speech jurisprudence. Pornography, un 760-61, Id. at 102 S.Ct. In holding obscene, less is afforded First Amendment child pornography unprotected an class of protection. California, Miller v. 413 U.S. speech, the Ferber Court identified the (1973). 93 S.Ct. 37 L.Ed.2d 419 in safeguarding “State’s interest physi years, Supreme Over the Court has psychological cal and well-being” chil of utilized in defining various tests obscene underlying dren as the rationale for allow material, including Justice Stewart’s mem ing the criminalization test, orable “I Know It When I See It” dissemination of pornography mi involving Ohio, 184, 197, Jacobellis v. 378 U.S. 756-57, (cita nors. Id. at 102 S.Ct. 3348 1676, 1683, (1964) S.Ct. 12 L.Ed.2d 793 omitted). tion As Supreme Cometrec (STEWART, J., concurring), and the “Ut ognized, rests, democratic society “[a] for terly Without Redeeming Social Impor continuance, upon its healthy, well- employed tance” test in A Book Named growth young rounded people into full “John Cleland’s Memoirs a Woman of maturity as citizens.” (quoting Id. Prince Attorney Pleasure” v. General Com. Massachusetts, v. 158, 168, 321 U.S. Mass., 413, 418, 975, 977, 383 U.S. 86 S.Ct. (1944)). S.Ct. 88 L.Ed. 645 (1966). 16 L.Ed.2d 1 Finally, in Miller v. Speech The Free Ashcroft California, Supreme Court articulated Coalition, Supreme the Court clarified the practical a more identify test to three-part scope governmental of power to regulate obscene material: child pornography. 535 U.S. (a) whether average person, the apply- (2002). S.Ct. 152 L.Ed.2d 403 ing contemporary community standards Coalition, The Speech Free the Court held work, would find the taken as a provisions of the Pornography Child Pre- whole, appeals interest; to prurient the (CPPA) vention Act of 1996 which crimi- (b) whether depicts the work or de- nalized production the possession and of scribes, patently in a way, offensive “sexually sex- explicit images that appear to ual conduct specifically by defined the depict minors but were produced without law; applicable state and using any real children” to inbe violation section, 239-40, purposes For the of this a de- Id. at Amendment. First of the 2256(8)(B), piction any depiction, represen- §§ includes 1389; 18 U.S.C.A. 122 S.Ct. tation, 2256(8)(D).2 description, perceived, of however Ferber’s rationale Because any and data or set of com- unprotect- compilation pornography child classifying store, for to to mands intended use re- upon government’s relied the speech ed trieve, generate depictions, harmed in or to such in children protecting interest representations, descriptions by any or the CPPA’s crimi- process, the production in- that did not electronic means. pornography of nalization actual children exploitation volve section, purposes For of this the term Id. at unconstitutionally overbroad. was includes, tangible expression, medium of 250-52, gov- Although S.Ct. materials, limitation, printed without link- arguments several ernment advanced media, film, photographs, plastic pornography with ing “virtual” child system communications any electronic children, Supreme Court protection display depictions. used to Fi- too attenuated. any link to be found 22-22-22 “prohibited SDCL defined sexual did not contain nally, the statute because intercourse, act” as “sexual anal inter- liter- speech for with “serious exception an course, masturbation, sadism, bestiality, value,” artistic, it or scientific ary, political, masochism, fellatio, cunnilingus, or incest pornography child could not ban “virtual” any activity including nu- other sexual the Miller v. as obscene under California dity activity depicted if is for the such 246-247, 122 S.Ct. 1389.3 analysis. Id. According stimulation.” purpose sexual Martin, case, it the use of the word “de- In this Martin contends piction” that makes the statute overbroad holding and rationale Supreme Court’s possibly pos- it could criminalize because clearly renders Speech The Free Coalition computer generated repre- session of “a unconstitutional. Be- 22-22-23.1 SDCL minor, not” of a whether real or 22-22-23.1 sentation repeal in fore its referring “the written word or even mere provided: a fictional minor.” knowingly possesses Any person who Although argues any any tangible fixed in medi- depiction he was convicted the statute under which expression um of a minor under may pro it restrict in a is overbroad because eighteen years engaging age of possession child speech, in the sim- tected sexual act or prohibited actual children is involving knowing pornography act or whose ulation of such aids, abets, the First clearly unprotected under encourages, or Generally, “a facial chal Amendment. any person “prohib- to commit a entices unless the lenge to a statute is not allowed guilty act” is of a Class ited sexual eonstitu- challenger’s own conduct involves felony. engag- 2256(8)(B) impression” depicted "a minor prohi- § it extended the 2. 18 U.S.C. against “any sexually visu- ing explicit bition conduct.” film, including photograph, depiction, al video, computer-gen- picture, or of the CPPA 3. the overbreadth To illustrate be, image picture” “appears to or that erated Coalition, Speech at issue in The Free sections sexually engaging explicit con- in of minor it could allow the crimi- the Court noted that 2256(8)(D) § further crimi- duct.” 18 U.S.C. Juliet, Shakespeare’s Romeo nalization of image any sexually explicit that nalized recent, widely mov- along acclaimed with the described, "advertised, promoted, presented, Beauty and ies American Traffic. conveys in such a manner that or distributed 300

tionally Here, protected expression.” State v. carry cannot this ¶ Asmussen, 102, 3, portions 2003 SD 668 N.W.2d burden. The of the CPPA invali- 725, A challenge asserting 729. the First dated in Speech The Free Coalition were Amendment doctrine of an clearly imposing overbreadth is aimed at criminal penal- exception general Virginia to this rule. production ties for the Hicks, 113, -, 2191, 539 U.S. 123 S.Ct. “virtual” or pornography “simulated” child 2196, 156 148, (2003); L.Ed.2d 157 Asmus that did not involve actual children. 535 ¶ sen, 102, 3, 250-51, 2003 Thus, SD 668 N.W.2d at 729. at 122 U.S. S.Ct. at 1402. Hicks, In Supreme Court articulated provisions beyond these went protec- underlying exception: rationale for this tion of children rational of Ferber. Id. (“Virtual child is not ‘intrinsi- provided expansive have this remedy

We cally related’ to the sexual abuse of chil- out of concern that the threat of enforce- dren, Ferber.”) as were the materials in may ment of an law overbroad deter or (citation omitted). addition, In because ‘chill’constitutionally protected speech'— n the statute provide exception failed to an especially when the overbroad statute speech artistic, for literary, with serious imposes Many criminal sanctions. per- value, political, or scientific sons, it affected a rather than undertake the consid- substantial amount (and risk) protected speech erable burden sometimes and failed under the Miller v. vindicating rights their through case-by- California obscenity 249, analysis. 122 Id. S.Ct. litigation, simply case will choose to ab- stain from protected speech ... harm-

ing only not society but themselves as face, On its we believe

whole, deprived which is anof uninhibit- SDCL only applies 22-22-23.1 por ed marketplace of ideas. nography involving actual children. Un at -, (inter 539 U.S. at 2196 S.Ct. like CPPA, the invalidated sections omitted).4 nal citations explicitly 22-22-23.1 does not apply Our recent decision As- to virtual or simulated child pornography. .recognized mussen heavy burden a interpreting When a statute presume we challenger asserting the doctrine of over- legislature intended to enact a valid ¶ carry. 102, 5, breadth must 2003 SD statute, and where “a statute can con be N.W.2d at 730. “In order to that meet strued so as not to violate the constitu burden, challenger] [a must show tion,” we will adopt such a construction. application law’s constitutionally pro ¶ Allison, 2000 SD 607 N.W.2d at 2. speech tected' is ‘real’ and ‘substantial’ Therefore, interpret we the word “de an absolute sense and in relation to the piction” applying to pornography involv scope plainly of the law’s legitimate appli ing only. actual children ¶ Id., cation.” 6. This substantial over- “ breadth must be Asmussen, discernable ‘from the recognized we “[i]n ” text of [the law] and from actual fact.’ addition language statute, to the of the it is Id. (quoting at -, Hicks 539 necessary U.S. 123 also to view the legislative pur- (citation ¶ S.Ct. at 156 L.Ed.2d at pose of the law.” omitted)). N.W.2d at 730. interpretation Our that the Arguably "expansive remedy” being is not convicted under its terms. Neverthe- applicable to this case as less, SDCL 22-22-23.1 apply the more lenient rule as set Thus, repealed. has been no one else other forth in Hicks. prospect than Martin will be faced with the

301 children is Martin next asserts applies [¶ 31.] to actual SDCL only statute enabling legislation 22-22-22 by the and 22-22-23.1 should be invali supported also 22-22-23.1, entitled an “Act unconstitutionally vague. [to] dated as of SDCL Once of of certain forms prohibit the again, apply the de novo standard of pornography.” computer-related challenges to constitutional review stat added). (emphasis ch 105 2000 Laws 88, ¶ 4, SD Wegleitner, utes. 1998 SD 582 legis- the word “certain” the The use of at 689. N.W.2d did not in- suggests legislature lation sweeping interpretation of SDCL

tend the Although closely relat [¶ 32.] Martin advances. ed, 22-22-23.1 the overbreadth doctrine and the vagueness “conceptually doctrine are dis 22- Additionally, we note SDCL ¶ Asmussen, 102, 10, tinct.” 2003 SD it fatally not flawed because 22-23.1 is at Generally, N.W.2d the over- exception an for material with seri- lacks doctrine addresses First Amend breadth artistic, literary, political, or scientific ous speech ment free while concerns applies por- the statute value. Because vagueness grounded upon doctrine is due real, children, involving actual nography process guarantees found in the Fifth and meet 22-22-23.1 need not SDCL Amendment of the federal Fourteenth of v. three-part obscenity test Miller Cali- § 2 of Constitution and Article VI Ferber, 760-61, at 458 U.S. fornia. Dakota Constitution. Id. The stan South at 3356-57. S.Ct. typically employ vague dard we under a of purpose The clear SDCL analysis prohibited ness is whether “the well-being protect 22-22-23.1 is to expressed or in terms so act omission during production children harmed vague people ordinary that reasonable Protecting pornography. of child process intelligence might differently.” apply [it] of our children is the health welfare vagueness challenges usually are Id. Such legitimate legislative unquestionably light “examined in of the facts of the case recognized, As the Ferber Court goal. Whiting, hand.” United States depends our state and Nation future of (8th Asmussen, Cir.1999); F.3d healthy devel upon the and well-rounded ¶ at 731. A 668 N.W.2d By opment purchasing, of our children. analysis vagueness concern of our central saving images of child downloading, and in such a is whether a statute is written ac computers, on his “permit manner as to selective discrimi tively supported exploitation the sexual natory enforcement.” Id. 22-22-23.1, the Through SDCL children. criminalized this legislature Dakota South the words “de- Martin contends act, repugnant and Martin has failed piction,” “knowingly possesses,” “real” or “sub demonstrate this statute’s expression” render “tangible medium constitutionally protect stantial” effect on 22-22-22 and 22-22-23.1 unconsti- Therefore, challenge speech. ed vagueness tutionally vague. support for overbreadth fails. hypotheti- challenge, Martin raises several illustrate 22-22-22 cal situations which he believes 2. Whether SDCL

(2001 Version) these statutes. For vague 22-22-23.1 the nature of and SDCL (2001 Version) unconstitutionally “depiction” and example, Martin believes are “knowingly possesses” are unconstitution- vague in the Fifth and violation of deleted from guarantees ally vague image because an Amendments’ Fourteenth special accessible with but still of Due Process. impression passage attorneys investigators or an of a involved in software on a tab- pornography deemed to be child pornography child cases would not be fall In page let could under the statute. criminalized under these statutes.5 addition, postulates painting Martin on a County Courts in both Lawrence pornography rock could child constitute County, and Butte South Dakota convicted “tangible the definition of medium under possessing pictures Martin for several of expression.” Finally, .argues of Martin pornography involving actual children. any attorney that or law enforcement offi- 22-22-22 provided SDCL and 22-22-23.1 engaged investigation prose- cer or adequate any person notice to of normal pornography cution of a child case would intelligence possession that such of child guilty violating be of the statute. addition, pornography illegal. was hypothetical find Martin’s sit- We Martin has failed to demonstrate that unpersuasive. uations Martin admitted he these statutes are vague so as to invite downloaded, purchased, porno- and saved Thus, prosecution. selective graphic images involving actual children on claim that 22-22-22 SDCL and 22-22-23.1 a number of occasions for at least three unconstitutionally vague are must also fail. years. Martin even demonstrated to in- vestigators pornog- how he accessed child [¶ 37.] Whether Martin’s convictions raphy through websites e-mails he re- multiple on counts of Possession of ceived. Martin admitted his “crusade” Pornography Child violated the Dou- “got[ten] had a hold of him” and that he Jeopardy ble Clause of the Fifth sexually by was aroused Al- images. Amendment. though attempted argue Martin The trial court in Lawrence unconstitutionally 22-22-23.1 was over- County broad, twenty convicted on counts undoubtedly prohibited the statute possession of pornography, of child possession pornographic of in- while pictures him volving County actual Butte court convicted on Looking children. at the hand, possession facts SDCL 22-22-22 ten counts of pornogra believe child Martin, provided and 22-22-23.1 a sixty- phy. Martin contends these convictions year intelligence, three old man of normal must grounds be reversed on the of multi adequate with notice that possession his plicity, violation of the Jeopardy Double . child was forbidden. See Clauses of the Fifth and Fourteenth Whiting, 165 F.3d at 634-35. Amendment of the federal Constitution and Article IX of the South Dakota Consti also

[¶ 35.] We note Martin’s concern tution. challenges raising We review any person investiga involved in the multiplicity charges issue of under the prosecution tion or involving of case de novo standard review. State v. Cha pornography could inbe violation of SDCL ¶ vez, 586, 2002 SD 649 N.W.2d 22-22-23.1, is unfounded. In order to be “[M]ultiple charges punishments in a 22-22-23.1, criminalized under SDCL a de single prosecution will not violate piction of a double “prohibited sexual act” must be jeopardy if Legislature plainly intend purpose used “for the of sexual stimulation gratification.” Thus, impose punishments.” ed to SDCL 22-22-22. cumulative ¶ Dillon, gratification unless used for sexual or State v. stimulation, pictures in the 43-44. N.W.2d 24.19, Legislature specifically 5. The exploitation addressed this entitled “Child sexual laws by enacting inapplicable situation in 2003 SDCL 22-22- to certain official duties.” to Legislature impose sepa- v. the intended cites to United States Martin 39.] [¶ Erickson, opinion, for the in such a unpublished punishments Spe- an rate situation. Indict multiplicious that “a cifically, provided that proposition the statute “de- single a offense charges that ment is one including “any but not to piction” limited ¶ 30, 2001 DSD 5 in counts.” multiple system” electronic communications consti- 2001). (DSD then cites to Block felony. tuted a Class 6 Id. While Martin States, 284 U.S. burger v. United urges interpret “any us to electronic com- (1932) for 76 L.Ed. 306 52 S.Ct. an system” encompassing munications act trans that the same the idea “where computer, entire we decline to do so. De- of distinct a two action constitutes violation prosecu- Martin’s assertion that such spite applied to be statutory provisions, the test prosecutor tion allowed the to “tear the of there are two to determine whether charge page and each as a apart book only provi one is each fenses or whether count,” we believe each act of separate of an additional fact requires proof sion downloading saving picture por- a of purpose The of other does not.” which the nography involving children constituted a to determine Blockburger test the offense under separate, prosecutable actually are multiple the offenses whether 22-22-23.1. SDCL in law or fact. Id. the same 22- interpretation Our [¶ 42.] test, Blockburger we Applying the underlying the ra comports 22-23.1 with for which Martin not believe the acts do criminalizing pornography, child tionale in fact. The convicted are the same was namely, the of the children who protection on pornography child found images of exploited during the would otherwise be downloaded and computers Martin’s were of such material. Fer production process Moreover, these separate at times. saved ber, 756-57, at 458 U.S. S.Ct. exploitation involved the of differ- pictures protection This rationale extends each Supreme ent children. As the Wisconsin Martin’s picture child in each found on noted a similar case: Court Furthermore, that computers. agree downloaded all [Defendant] Even had hard drive is much more “[a] very period short image files a book; library than a the hard similar to time, more than the fact that there were literally can store thousands docu drive a conclusion separate supports files depictions.” United ments and visual to obtain that he made new decision (8th 443, 448 Cir. Vig, v. 167 F.3d States Every downloaded a each one. time he 1999). To find otherwise would allow file, to addi- new he recommitted himself only penalty one for Legislature impose Each criminal conduct. decision tional of files of storage literally thousands pornography child to download more involving children on a com pornography represented departure. a new volitional what the do not believe this is puter. We ¶ Multaler, 54, 58, 643 252 Wis.2d State Accordingly, intended. Mar Legislature (holding twenty-eight N.W.2d image of child prosecution for each tin’s possession for charges against defendant violated computers on his pornography multipli- were not pornography of child state constitution. the federal nor neither cious). there was sufficient 4. Whether [¶ 43.] convict- charged Martin was support convic- evidence to downloading and separate for acts of ed multiple possession counts of on and from tions pornography, possessing 22-22-23.1, pornography. of child we believe the face of SDCL challenges ly statutory Martin next exceeded the maximum limits for sufficiency presented violating of the evidence allowed SDCL 22-22-23.1. by support his prosecution convic We do not believe Martin can of child tions for imposition ten-year show of this in violation of SDCL 22-22-23.1. When probationary period inis error. Martin evidence, reviewing sufficiency of the penalty received the maximum for each accept all to the evidence favorable 22-22-23.1, violation of SDCL which is two verdict, reasonable there and inferences Thus, years. in County Lawrence where from, weighing credibility or without re Martin twenty separate was convicted on Bucholz, solving conflicts. counts, the trial court could have sen- ¶ 33, 598 N.W.2d at 905. tenced Martin to a maximum forty serve years. County, In Butte the trial court case, In this Martin to [¶ 45.] admitted could have sentenced Martin to a maxi- viewing child at various times twenty years mum of in penitentiary. the period years over a of three on both his Martin, however, forty-five had all but computers. home and business Martin days of his total suspended. sentence The $1,000 spent confirmed he at least of his trial imposition ten-year proba- courts’ of a money pornography. own on child He tionary period is than less the total time even demonstrated investigators how he Martin could have multiple received for his featuring accessed these websites violations of SDCL 22-22-23.1 and does pornography through fur- e-mails. Martin not exceed statutory limit. “got[ten] ther admitted his “crusade” had prop- 6. Whether the trial court a him” gained hold of and that he sexual erly prohibited accessing Martin from arousal pleasure viewing and from these Internet, using computer, a and pictures to the experienced extent that he possessing pornography years for ten orgasms dreaming about them. Fi- while part as of his sentence. nally, investigators were able retrieve print from computers, Martin’s actual copies of each for picture which he was prop- [¶ 50.] Whether trial court Viewing convicted. this in evidence erly prohibited Martin from unsu- light upholding most favorable to pervised contact with children under conviction, prosecution we believe the age eighteen years period for a clearly presented sufficient evidence to years part of ten of his sentence. convict Martin por- for of child The court in Lawrence nography in violation of SDCL 22-22-23.1. County prohibited Martin from owning or ten-year [¶ 46.] Whether Martin’s possessing years. for ten In probationary periods for his convic- County, Butte Martin prohibited was from tions under SDCL 22-22-23.1 unlaw- accessing the Internet or having unsuper fully statutory exceeded the maximum vised contact with for years. minors ten limits. prohibited Both trial courts Martin from possessing pornography period for a of ten sentencing [¶ 47.] After Martin to years. years two penitentiary for each con viction, both trial courts further imposed Martin prohibi- contends that the ten-year probationary period. For against pornography aspect his tion of his sen- error, point fifth Martin maintains that vagueness. tence must be reversed for ten-year probationary period words, unlawful- other may worries he imprisoning of his native of Martin for the same violate this condition unknowingly bright is no line ten-year period. because there sentence “pornography.” rule as to what constitutes prohibitions up- [¶ 55.] Such have been [person’s] that “one vul acknowledge We held as goals consistent with the cited recognize the lyric,” and garity is another’s Paul, Crandon, above. United States v. pornogra [person’s] that “one possibility (3d Cir.1999); 173 F.3d 122 United States Cohen, keepsake.” another’s phy may be Fields, (8th Cir.2003); v. 324 F.3d 1025 1788; 91 S.Ct. at United 403 U.S. Zinn, (11th States v. 321 F.3d United (2nd Cabot, F.3d States Cir.2003). acknowledge that We other Cir.2003). However, strip we decline to addressing courts the issue have concluded where the “condi power trial courts of this contrary. Sofsky, United States v. case is reason tion at issue the instant (2nd Cir.2002); 287 F.3d 122 United States to the ably related to offense and [the] (3d Cir.2003). Freeman, v. 316 F.3d 386 protect recidivism and the prevent need to Paul, v. 274 F.3d public.” United States that up- [¶ 56.] We conclude those cases Cir.2001). (5th 155, 169 holding prohibitions these are better rea- that it is not the We also note [¶ 53.] they sentencing soned because offer the rigid a provide function of this Court flexibility. court the most holding Our If the “pornography.” State definition than options locking up offers courts other alleges pornog- Martin is in the violation risking the defendant or unfettered access Martin is raphy aspect probation, of his opinion to the material has al- which hearing any entitled to notice and a before chil- ready young demonstrated victimizes deprivation liberty further of his can occur. rationale, By uphold dren. the same we ¶ Christian, 4, 15, 588 v. State aspect prohibits of the sentence which Romano, v. (citing 883 Black N.W.2d any having unsupervised Martin from con- 2254, 2257, 105 S.Ct. 85 U.S. years. tact for ten with minors (1985) (citation omitted)). L.Ed.2d Affirmed. hearing, At the revocation Martin would opportunity to be heard and to have given

present evidence as whether KONENKAMP, ZINTER, and actually or “pornography” material was MEIERHENRY, Justices, concur. Thus, something at this time we less. SABERS, Justice, concurs 59.] [¶

decline to reverse the trial courts’ order specially. possessing por- from prohibiting Martin

nography period years. for a of ten SABERS, (concurring specially). Justice challenges also specially point I concur out against pos him prohibition trial court’s the Defendant from own- prohibiting sessing computer accessing or the Inter computer may ex- ing possessing be during ten-year probationary peri net re- punishment. cessive The Defendant is argues od. Martin that such a condition is place at time or to a outset, quired to submit “overly restrictive.” At loarrantless search and seizure and his prohibition against note that the the com frequently computer can therefore be puter protect public use seeks to Paul, continually and even monitored. searched prevent recidivism. 274 F.3d Moreover, frequently A is a neces- clearly personal it method a less harsh sity today’s life and business. This achieving goals these two than the alter-

portion of the sentence is unreasonable

and should be vacated. SD 154 BOXA, Boxa, Brent

Earl G. Elizabeth

Combs, guardian ad litem for Joh Combs, Combs,

nathan L. Brent Jen Combs, Shirley Vosika, Polly

nifer A. Cerney, Cerney Estate,

Anne Emil J.

Marjorie Harrison, Ellston, and Verne Appellees,

Plaintiffs VAUGHN, Vaughn

Paul Paul Inc.,

Insurance Defendants Appellants, Vanderbeek, Defendant.

Scott

No. 22756.

Supreme Dakota. Court South

CONSIDERED ON BRIEFS

ON Oct.

Decided Dec.

Case Details

Case Name: State v. Martin

Court Name: South Dakota Supreme Court

Date Published: Dec 30, 2003

Citation: 674 N.W.2d 291

Docket Number: None

Court Abbreviation: S.D.