Missouri v. Marquis, 2014 WL 5462316 (Mo.App. W.D.)) October 28, 2014

Facts: The child sexual exploitation charges arise incidentally from a child abuse investigation. One day when L.M. (the daughter of Appellant) was caught playing with her father’s playstation, he hit her in the face with the playstation, spanked her, took away all of her possessions, and made her stand in the corner. According to L.M. her father made her stand in the corner every day during Christmas break of 2009 from the moment she woke up until the moment she went to sleep, except for chores, eating, and restroom breaks (though she was timed for those). Appellant drilled a hole in the doorframe and inserted a camera to monitor his daughter’s movements (she was 14).

When L.M. returned to school she was called to the administrator’s office for skipping school. She told the administrator she was afraid to go home. A call to the child abuse hotline was placed, and an investigator showed up at school. L.M. told the investigator about her abuse, including being hit with belts by Appellant. She was temporarily placed in a teen shelter (with the consent of her parents) until a safety assessment could be conducted.   The investigator went to the house, reviewed some of the footage and began an investigation. 6 days later, Appellant pulled L.M. out of the teen shelter. She was still required to stand in the corner, though she was now allowed to sit down during homework time. L.M. told the investigator she was afraid Appellant was going to kill her. Based on that information as well as the fact that some of the evidence of physical abuse was digitally recorded, a search warrant was sought.

The warrant was executed and a total of 10 computers, 21 hard drives, and 3 external hard drives were siezed.  Forensic analysis revealed a number of videos of L.M. but also some images the examiner believed to be child pornography. A second search warrant was sought and granted for the child pornography. 35 still images of apparent child pornography were found as well as 2 videos of L.M. undressing and in a state of nudity.

Charges/Findings/Sentence: Appellant was charged with three counts of possession of child pornography, one count of child abuse, and one count of endangering the welfare of a child. He was convicted on all counts and sentenced to 20 years for the child pornography, 7 years for the child abuse, and 1 year for endangering the welfare (to be served consecutively).

Issues: First, Appellant argued the trial court abused its discretion in denying the motion for JNOV on the child pornography and child abuse for insufficient evidence. Second, he argued that the court erred in denying his motion for JNOV and mistrial because the state repeatedly introduced prejudicial material (the images of child pornography). Lastly, Appellant argued that one of the charges of child pornography should be vacated because it was beyond the statute of limitations.

Sufficiency of the Evidence.

A. Child Pornography – Appellant claimed that the State could not prove that he accessed those images in over 3 years (the SOL for the offense). He claimed that 25 of the images were in the recycle bin, that computer was not operable at the time of the seizure, and it was being stored under two other computers in the house.

Appellant admitted that he downloaded the images, moved some of them onto other peripheral devices, and they he possessed the devices at the time of the seizure. The court made short work of this argument. And outright discredited the 3 years of not looking argument because the statute under which Marquis was charged does not require the State to prove when a person last accessed the child pornography. Instead, the statute provides that the State must prove that Marquis knowingly or recklessly possessed the child pornography.

B. Child Abuse– The three elements for the offense are (1) knowingly inflicted (2) cruel and inhuman punishment (3) on a child younger than 17. Appellant’s argument is that the State didn’t prove his actions (putting L.M. in the corner) were cruel and inhuman. Again, the court made short work of this argument. L.M. testified that she felt depressed and began cutting herself as a result of being forced to stand in the corner.

Displaying the Images Repeatedly

Appellant argued at trial and again on appeal that 1) the State should not have been allowed to show enlarged images to the jury, when thumbnail images were recovered from the computer. 2) He argued that the State should not have been allowed to show the images more than once, and for the 25 minutes it took them to go through each image.

The court held “[t]he projection of previously admitted photographs is permissible when the enlarged photographs serve legitimate purposes.” Tisius v. State, 183 S.W.3d 207, 215 (Mo. banc 2006). Here, the enlarged images helped to illustrate what the State’s expert witnesses were talking about as they discussed the images, which were the basis of the three possession counts. See also State v. Love, 546 S.W.2d 441, 451 (Mo.App.1976) (stating that photographs “possess probative value if they enable the jury to better understand the facts elicited from various state witnesses.”).

The court also held that showing the images more than one time was not error because the State had to prove the images contained what appeared to be child pornography.

Circuit Court Judgment is Affirmed.

This entry was posted in Defenses, Deleted Files, Expert Testimony. Bookmark the permalink.

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