E-Filed Document Feb 27 2017 15:41:09 2016-CA-01033-COA Pages: 12 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI MICHAEL ISHEE APPELLANT VS. NO. 2016-CA-01033-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: ABBIE E. KOONCE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 103632 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF AUTHORITIES................................................... ii STATEMENT REGARDING ORAL ARGUMENT................................. 1 STATEMENT OF THE ISSUES................................................. 1 STATEMENT OF THE CASE................................................... 1 STATEMENT OF THE FACTS................................................. 2 SUMMARY OF THE ARGUMENT.............................................. 3 ARGUMENT................................................................. 4 I. Mississippi Code Annotated section 97-5-33(5) as written at the time of Ishee s indictment was not unconstitutional............................ 4 II. It was not improper for the State to charge Ishee with willful possession of child pornography............................................... 6 CONCLUSION............................................................... 8 CERTIFICATE OF SERVICE.................................................. 9 i
TABLE OF AUTHORITIES FEDERAL CASES New York v. Ferber, 458 U.S. 747 (1982).... 6 Osborne v. Ohio, 495 U.S. 103 (1990).... 6 STATE CASES ABC Interstate Theatres, Inc. v. State, 325 So.2d 123 (Miss. 1976).... 7 Carson v. State, 161 So.3d 153 (Miss. Ct. App. 2014)... 4 Christmas v. State, 700 So.2d 262 (Miss. 1997)... 8 Hayes v. State, 203 So.3d 1144 (Miss. Ct. App. 2016).... 4 Kennedy v. State, 118 So.3d 684 (Miss. Ct. App. 2013).... 7 Renfrow v. State, 34 So.3d 617 (Miss. Ct. App. 2009)... Passim Richmond v. State, 751 So.2d 1038 (Miss. 1999)... 4, 5 Roberson v. State, 501 So.2d 398 (Miss.1987)... 5 Wright v. State, 236 So.2d 408 (Miss.1970).... 5 STATE STATUTES Miss. Code Ann. 97-5-33... 3 Miss. Code Ann. 97-5-33(5).... Passim ii
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI MICHAEL ISHEE APPELLANT VS. NO. 2016-CA-01033-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT REGARDING ORAL ARGUMENT The State of Mississippi submits that the issues raised by Ishee have already been decided by this Court in Renfrow v. State, 34 So.3d 617 (Miss. Ct. App. 2009). Due to the straightforward application of the law to the facts in this case, the State of Mississippi does not request oral argument. STATEMENT OF THE ISSUES I. Mississippi Code Annotated section 97-5-33(5) as written at the time of Ishee s indictment was not unconstitutional. II. It was not improper for the State to charge Ishee with willful possession of child pornography. STATEMENT OF THE CASE Michael Ishee filed for post-conviction relief following his guilty plea in the First Judicial District of Harrison County to one count of exploitation of a child in violation of Mississippi Code Annotated section 97-5-33(5). (CP 7-8) The Honorable Circuit Judge Lisa P. Dodson denied Ishee s motion and he filed a Motion for Reconsideration. (CP 157-58) This was also denied and Ishee timely appealed. (CP 182-83) 1
STATEMENT OF THE FACTS During Ishee s guilty plea hearing, the State read the factual basis for the charge into the record: [I]f this matter did go to trial before this honorable court the State would prove in cause 11-813 that Michael Ishee, in this First Judicial District of Harrison County, Mississippi, on or about July 12 th of 2010, did possess these visual depictions of actual children under 18 years specifically on the Western Digital hard drive with the serial number WMAT13553758. Through the testimony of various individuals, first Investigator Jake Houston who conducted the undercover investigation, who would testify regarding his investigation in identifying the IP or Internet protocol address, to which the child pornography was available for download. Additionally, Investigator Richard Johnson who would testify regarding his interview of the defendant Mr. Mike Ishee and the statements given to him as well as Investigator Keith Levitt, a computer forensic examiner, who examined the computer in this specific instance, and his testimony regarding what he found on that computer. The State would be able to, through this testimony, Your Honor, prove beyond a reasonable doubt that Mr. Ishee did, in fact, possess those images on the date of the indictment in count one, and that would be the State s case. (CP 133-34) Ishee agreed with the State s recitation of the facts and admitted to the judge that he knowingly downloaded child pornography onto his computer, specifically pictures and videos of children under the age of 18. (CP 132, 135) No challenge to either Ishee s indictment or the statute under which he pleaded guilty was lodged before or during his guilty plea hearing. Ishee first asserted that section 97-5-33(5) was unconstitutional in his motion for post-conviction relief filed on October 23, 2015. (CP 7) The trial court ordered the Attorney General s Office to respond, which it did. (CP 61) Ishee filed a rebuttal and the trial judge entered an order denying his request for post-conviction relief. (CP 65, 147) The trial court noted that the exact same issue raised by Ishee, the constitutionality of section 97-5-33(5) and its lack of a mens rea requirement, had already been addressed by this Court in Renfrow v. State, 34 So.3d 617 (Miss. Ct. App. 2009). (CP 148) The Renfrow Court did not find that section 97-5-33(5) was unconstitutional and it upheld Renfrow s conviction. The trial court based 2
its decision on the fact that Ishee s indictment charged that he willfully possessed child pornography and he admitted this during his guilty plea hearing.(cp 148-49) The trial court also disagreed with Ishee s claims that the United States Supreme Court cases that he relied on mandated that section 97-5-33(5) was unconstitutional. (CP 151) Also noted was the fact that the other subsections of section 97-5-33 contained a mens rea requirement and that statutes and subsections pertaining to the same subject are to be read together. (CP 153) The trial judge was not persuaded by Ishee s argument that the subsection at issue was over broad and might hamper constitutionally protected material. There can be no doubt that the material that Ishee admitted to knowingly possessing is not protected by the Constitution. (CP 153) And as to Ishee s claim that the statute as read at that time could charge someone with possession of child pornography who did not know that they possessed it, the trial court found that Renfrow, supra, clearly indicated that the indictment on such a charge must include a willful possession and that the State would be required to prove same. (CP 154) The trial court further disagreed with Ishee s argument that the subsequent amendment to section 97-5-33(5) adding knowingly was an admission of the prior version s unconstitutionality. The amendment was for the purpose of clarify[ing] the state of mind necessary and there is no evidence that the amendment was to cure any unconstitutionality. (CP 156) After the trial court s denial of his motion, Ishee filed a Motion for Reconsideration which simply repeat[ed] part of the arguments made by Ishee in his Petition and briefs. (CP 182) This motion was denied and Ishee appealed. SUMMARY OF THE ARGUMENT This Court has, in Renfrow v. State, already addressed both of Ishee s issues. Section 97-5- 33(5), pre-amendment, was not unconstitutional; and because the State charged Ishee with willfully 3
possessing child pornography and he admitted to such possession during his guilty plea hearing, his arguments should not be persuasive. The trial court, in denying Ishee post-conviction relief, was not clearly erroneous because it followed the precedent of this Court and its decision should be upheld. ARGUMENT I. Mississippi Code Annotated section 97-5-33(5) as written at the time of Ishee s indictment was not unconstitutional. When reviewing a trial court s denial or dismissal of a PCR motion, we will only disturb the trial court s decision if it is clearly erroneous; however, we review the trial court s legal conclusions under a de novo standard of review. Hayes v. State, 203 So.3d 1144, 1145 (Miss. Ct. App. 2016) (quoting Carson v. State, 161 So.3d 153, 155 ( 2) (Miss. Ct. App. 2014)). Ishee argues that section 97-5-33(5) as written at the time of his indictment was unconstitutional because it lacked a scienter requirement. At that time, section 97-5-33(5) read: No person shall, by any means including computer, possess any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct. Effective July 1, 2013, this section was amended to read: No person shall, by any means including computer, knowingly possess or knowingly access with intent to view any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct. Miss. Code Ann. 97-5-33(5). Statutes under constitutional attack have a presumption of validity attached to them, overcome only with a showing of unconstitutionality beyond a reasonable doubt. Richmond v. State, 751 So.2d 1038, 1047 (Miss. 1999). Moreover, the test concerning statutory construction is whether a person of reasonable intelligence would, by reading the statute, receive fair notice of that which is required or forbidden. Id. The Legislature may define a crime which depends on no 4
mental element and consists only of forbidden acts or omissions. Wright v. State, 236 So.2d 408, 413 (Miss.1970), cited in Richmond. In that instance, the intent to do the forbidden act is the only intent necessary to complete the offense. Roberson v. State, 501 So.2d 398, 401 (Miss.1987). This Court has already addressed the exact same issues that Ishee now raises. Ishee attempts to both distinguish his case from Renfrow s and also claim that Renfrow, supra, should be overruled. Ishee claims that Renfrow s arguments are not the same arguments that he currently submits, but this is simply not the case. Prior to his trial, Renfrow moved to dismiss his indictment on the basis that section 97-5-33(5) was impermissibly vague because it does not include a mens rea component. Renfrow, 34 So.3d at 623. The trial court denied his motion on the basis that Renfrow s indictment charged him with willfully possessing child pornography. While Renfrow couches his argument in terms of the facial unconstitutionality of section 97-5-33(5), and Renfrow claimed that it was vague, both arguments challenge the constitutionality of the statute for the same reason the lack of a mens rea requirement. Both arguments also suggested that the statute was over broad in that people who did not know they had child pornography on their computers could be prosecuted. This Court disagreed and found: There can be no doubt that a criminal statute is not unconstitutionally vague solely because it does not contain a mens rea element. Id. at 625. Ultimately, the Renfrow Court found that because Renfrow s indictment charged him with willful possession, it is irrelevant that section 97-5-33(5) does not include a mens rea element. Id. Renfrow s motion for rehearing and petition for certiorari were denied on February 16, 2010, and May 13, 2010, respectively. Since Ishee s indictment charged him with willfully, unlawfully, and feloniously possessing child pornography, and Ishee admitted to knowingly possessing child pornography, this Court should affirm the trial court s denial of his PCR petition. 5
Ishee argues that the cases he cites invalidate section 97-5-33(5) as it was written before the latest amendment. Ishee heavily cites to New York v. Ferber, 458 U.S. 747, 765 (1982), specifically this portion of the opinion: As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant. In Ishee s case, his indictment charged him with willfully possessing the prohibited material and he admitted to such willful possession at his guilty plea hearing. Thus, the requirement of Ferber was met some element of scienter on the part of Ishee was established. And just as the trial court mentioned in its order denying Ishee post-conviction relief, the cases that Ishee relies on existed at the time of Renfrow, supra. It cannot be presumed that the Court of Appeals ignored those decisions. (CP 151) The trial court disagreed with Ishee s contention that Osborne v. Ohio, 495 U.S. 103 (1990), somehow mandates that pre-amendment section 97-5-33(5) was unconstitutional: Mississippi s statute covers easily identifiable and constitutionally proscribable... conduct... as referred to in Osborne. In addition, that statute had been construed by the Mississippi Court of Appeals prior to Ishee s conduct in this case. The State followed the decision in Renfrow in this matter, the indictment being in line with that decision and the proof evidencing a knowing and willful possession of the videos and pictures. (CP 155) The trial court s decision to deny Ishee post-conviction relief was not clearly erroneous given the current case law in Mississippi. As the trial court noted, the Mississippi appellate courts have many times indicated that testimony during a plea hearing is to be given great weight. (CP 157) Ishee was charged with and admitted to willful possession of child pornography. He gives this Court no actual evidence that he was unaware that his conduct was proscribed or that the statute is over broad or vague. Thus, the denial of his PCR motion should be upheld. II. It was not improper for the State to charge Ishee with willful possession of child pornography. Ishee argues that the inclusion of a mens rea element in his indictment when it did not appear 6
in the statute was improper. He was originally charged with 19 counts of exploitation of a child but after his guilty plea to count I, the rest were passed to the files. When [Ishee] entered his valid guilty plea, he waived all non-jurisdictional defects in the indictment. Kennedy v. State, 118 So.3d 684, 686 (Miss. Ct. App. 2013). Since Ishee is not alleging that the indictment failed to charge a criminal offense, or that the trial court did not have subject matter jurisdiction...he fails to meet either exception to the waiver. Id. Ishee never objected to the indictment and [t]his Court has stated numerous times that [n]ew issues not presented to the trial court for resolution may not be raised for the first time on appeal. Id. But even so, this Court has already addressed the fact that an indictment can charge someone with willful or knowing possession of child pornography when the statute does not include that exact language. See Renfrow, supra (finding that by including that language, the State imposed a mens rea requirement, and it was obligated to prove that aspect of the charge beyond a reasonable doubt. ). The Renfrow Court clearly saw no problem with the inclusion of an additional element in the indictment given the language of the statute. Ishee claims that the executive branch via the district attorney s office clearly violated the separation of powers in that he usurped the unquestioned power of the legislature alone to define and enact criminal statutes by adding elements of the crime defined by the legislature. (Appellant s Br. at 16) This is quite an over dramatization of what actually occurred. The State s imposing an extra burden upon itself in having to prove the mental state of Ishee did not act to change the law or amend a statute. ABC Interstate Theatres, Inc. v. State, 325 So.2d 123 (Miss. 1976), which Ishee uses to support his argument does not involve differing language between an indictment and statute. Thus, Ishee has no support for his proposition that the State committed any unconstitutional act in the drafting of Ishee s indictment. 7
Ishee also claims that the indictment constituted an ex post facto law. An ex post facto law is one which, in its operation, makes that criminal which was not so at the time the action was performed; or which increases the punishment, or, in short, which, in relation to the offense or its consequences, alters the situation of a party to his disadvantage. Christmas v. State, 700 So.2d 262, 267 (Miss. 1997) (emphasis added). The inclusion of the word willfully in Ishee s indictment did not create a new offense or change the punishment for exploitation of a child. It also did not make willful possession of child pornography illegal for the first time. Ishee s argument in his first issue is not that willful possession of child pornography was not illegal before his indictment but that seems to be what his second issue is claiming. CONCLUSION For the foregoing reasons, the State of Mississippi respectfully requests this Honorable Court to affirm the denial of Michael Ishee s motion for post-conviction relief. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 BY: /s/ Abbie E. Koonce ABBIE E. KOONCE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 103632 8
CERTIFICATE OF SERVICE I, ABBIE E. KOONCE, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: W. F. Holder II, Esq. 1720 22nd Avenue Gulfport, MS 39501 Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 27th day of February, 2017. Honorable Lisa P. Dodson Circuit Court Judge P.O. Box 1461 Gulfport, MS 39502 Honorable Joel Smith District Attorney P.O. Drawer 1180 Gulfport, MS 39502 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE NO. 602-359-3680 FAX NO. 601-576-2420 /s/ Abbie E. Koonce ABBIE E. KOONCE SPECIAL ASSISTANT ATTORNEY GENERAL 9