Defendant argued statute ran afoul of Ashcroft v. Free Speech Coalition decision
By David Donovan
BridgeTower Media Newswires
COLUMBIA, SC - South Carolina's Supreme Court has rejected a Richland County man's challenge to the constitutionality of the state's child pornography law, although a narrowly divided court did overturn his convictions for violating the law, finding that his trial had been prejudiced by the admission of impermissible evidence.
Michael Scott Simmons was convicted of six counts of sexual exploitation of a minor in the second degree due to six videos that had been downloaded to his personal computer and then deleted before the computer was seized by police, who obtained copies of the videos via other means. Simmons raised several arguments on appeal, including a facial challenge to the constitutionality of the law itself.
Simmons argued that South Carolina's child pornography statute ran afoul of the U.S. Supreme Court's landmark 2001 decision in Ashcroft v. Free Speech Coalition, which struck down a federal statute that prohibited any visual depiction that "is, or appears to be, of" a minor engaging in sexually explicit conduct, ruling that Congress couldn't ban the possession of images that appear to, but don't actually, depict sexual images of minors.
Justice Kaye G. Hearn, writing for a unanimous court on the constitutionality issue, noted that South Carolina's law doesn't contain the same "appears to be" language that the U.S. Supreme Court found so problematic in Ashcroft. Simmons contended that the statute was nevertheless still overly broad because juries may infer that a person depicted in an image is a minor based on circumstantial evidence (direct proof of a subject's age may, naturally, be difficult to procure).
But Hearn, citing decisions from other states with similar statutes, disagreed. The statute allows, but doesn't require, juries to infer that a person depicted in an image is a minor-and prosecutors are still required to prove beyond a reasonable doubt all of the elements of the crime, including that the participant is under the age of 18.
The court also unanimously rejected Simmons' argument that the evidence obtained by searching his home should have been suppressed because the search warrant was based on information that was seven months old by the time the warrant was issued. The Supreme Court had never addressed the issue of such "staleness" in the context of a child pornography case, but cited federal cases that had found a seven-month delay in issuing a warrant to be constitutionally permissible.
"While our conclusion today upholds the validity of the search warrant in this case, we emphasize there is no bright-line rule as to what length of delay is acceptable in child pornography cases," Hearn wrote. "Simply because a case involves child pornography does not immunize substantial delays from judicial scrutiny. Rather, the determination of whether a lapse of time is sufficient to invalidate a search warrant for staleness is case-specific."
Ultimately, though, Simmons' convictions were overturned because the trial judge allowed prosecutors to show jurors eight other videos that appeared to depict child pornography and were found on Simmons's external hard drive. (Prosecutors declined to charge Simmons with any crimes related to these videos, but the court's opinion doesn't make clear why.)
Richland County Circuit Court Judge R. Knox McMahon initially granted Simmons' request to exclude any discussion pertaining to the videos recovered from the external hard drive. On direct examination, the computer forensic examiner who investigated the case testified that he hadn't found any evidence of pornography on any other computers taken from the house-an important bit of testimony because Simmons lived in a home he shared with other people, and the main thrust of Simmons' defense was that one of his housemates could have downloaded the pornography onto his computer without his knowledge.
On cross-examination, Simmons' counsel pushed this point in order to build a case that police investigated Simmons to the exclusion of all other possible perpetrators. Afterwards, prosecutors successfully argued that counsel had opened the door to admitting the videos found on the hard drive by implying that the forensic examiner hadn't found any evidence of pornography there.
Here, the court narrowly split, with a 3-2 majority ruling that McMahon had abused his discretion by admitting the videos, which had deeply prejudiced Simmons' defense. Hearn wrote that Simmons's defense counsel, "well aware of the possibility of opening the door, carefully tailored his questions to track the State's direct examination," and elicited no substantive testimony about the hard drive. Even under a generous standard of review, that was insufficient to justify the admission of previously-excluded evidence in rebuttal.
"The State had already elicited testimony from [the examiner] that there was no child pornography found on Simmons' desktop," Hearn wrote. "Once the State received this response, defense counsel was certainly entitled to drill down on that fact during cross-examination. The trial court's ruling that defense counsel's same questioning on cross opened the door to the excluded evidence essentially allowed the State to achieve what it was prohibited from doing directly-discussing and ultimately playing the eight videos for the jury."
Chief Justice Donald Beatty, joined by Justice George C. James Jr., dissented from that portion of the court's ruling.
Published: Fri, Apr 24, 2020
