Wednesday, December 30, 2015

"Video Voyeurism," Transfer and Venue

This post examines an opinion from the Supreme Court of Mississippi:  Nuckolls v. State, 2015 WL 8482698 (2015). This court, unlike most courts, did not begin its opinion by explaining what facts led to Samuel Nuckolls’ being charged with video voyeurism.  If you check out the news stories you can find here, here and here, you can learn about how, and why, the case arose.
The Supreme Court begins its opinion by explaining that, “[i]n this thirteen-count, video-voyeurism bench trial, the parties agreed to forego calling witnesses and to have the trial judge decide the case on a submission of stipulated facts.” Nuckolls v. State, supra.  I must admit that I was not aware of that as an option, so I did some online research.  If you would like to read more about a trial on stipulated facts, check out the entries you can find here, here and here.
I need to note one other aspect of the opinion:  The opinion examined in this post is the opinion of the Supreme Court, as a court that, as Wikipedia explains, consists of nine Justices.  Two of the Justices – Michael K. Randolph Randy G. Pierce – concurred with the majority of justices on certain issues and dissented on certain issues, in an opinion written by Justice Randolph.  Nuckolls v. State, supra.  
Getting back to Samuel Nuckolls, the Supreme Court went on to explain that on
February 14, 2012, a DeSoto County grand jury indicted Samuel Nuckolls for thirteen violations of Mississippi Code Section 97–29–63, which provides:

`Any person who with lewd, licentious or indecent intent secretly photographs, films, videotapes, records or otherwise reproduces the image of another person without the permission of such person when such a person is located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom shall be guilty of a felony. . . .
Nuckolls v. State, supra.  
Next, it pointed out that The Supreme Court then went on to explain that the
original indictment charged that Nuckolls `secretly filmed and videotaped’ women in his bathroom on thirteen occasions. When Nuckolls moved to dismiss most of the counts because they had occurred outside the two-year statute of limitations, the State obtained an amended indictment, adding language charging that Nuckolls `otherwise reproduced’ the images within the statute of limitations by saving them on his computer.

Nuckolls's attorney then moved for a continuance, arguing that the State had made no allegation and had no proof as to where the images had been reproduced. The circuit judge denied the motion and found that all of the counts survived the statute of limitations.
Nuckolls v. State, supra.  
The court then outlined the proceedings below, explaining that Nuckolls
then waived his right to a trial by jury, and the parties submitted an agreed stipulation of facts to the circuit judge, asking the circuit judge to decide the case based on that stipulation. The stipulation included no information as to where the images allegedly were reproduced, and Nuckolls preserved his challenge to the statute of limitations. Based on the stipulation of facts, the circuit judge convicted Nuckolls on all thirteen counts.

On appeal, Nuckolls attacks his ten transfer convictions on two grounds: (1) the statute does not criminalize the transfer of images to a computer; and (2) even if it does, the State failed to prove where the transfer took place, or who made the transfer. He also challenges one of his three filming convictions, arguing that the State failed to prove that it occurred within the statute of limitations. He has not appealed the other two filming convictions.
Nuckolls v. State, supra.  
The Supreme Court began its analysis with Nuckolls’ challenge to his convictions on the “transfer” counts, explaining, initially, that
[w]hen we consider the sufficiency of the evidence, our `”relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ `”The state receives the benefit of all favorable inferences that may reasonably be drawn from the evidence.”’

¶ 7. The stipulation -- which was the sole evidence at trial -- is entirely silent as to where the transfers occurred. The State has not suggested otherwise in its brief. And when asked about the venue issue at oral argument, the State responded that, because Nuckolls resides in DeSoto County, the trial judge was within his discretion to find that the transfers took place there.
Nuckolls v. State, supra.  
The court went on to point out that
[w]e consistently have held that venue is an essential part of the State's burden of proof that `may be proved by direct or circumstantial evidence.’ This precedent is based on the Mississippi Constitution's requirement that “an accused has the right to trial “by an impartial jury of the county where the offense was committed.”’ Also, venue in this case—as in all criminal cases—constitutes a material allegation of the indictment that becomes a part of the State's burden of proof.
Nuckolls v. State, supra.  
The Supreme Court then began its substantive analysis of Nuckolls’ venue argument, noting, initially, that
[n]o evidence was provided at trial to show where the transfers took place. And to imply, as the State suggests, that the transfers occurred in DeSoto County simply because Nuckolls resided there—even though he allegedly used a laptop computer that (1) was purchased in Tennessee, (2) was found in Arkansas, and (3) could operate anywhere—would strain credibility and obviate the State's burden of proof.

¶ 10.The stipulation did not state . . . that the transfers occurred at either of Nuckolls's residences. For example, for Count 1 (which largely mirrors the language of the other counts), the stipulation states in its entirety:

In Count 1 the State would show that SAMUEL NUCKOLLS, between the dates of June 1, 2007 and October 29, 2011, did willfully, unlawfully and feloniously, with lewd, licentious or indecent intent secretly photograph, film, videotape, record, or otherwise reproduce the image of another, to wit: Ashley Fisher, without the permission of Ashley Fisher when Ashley Fisher was located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, to-wit: in the bathroom.

The State would offer four videos. The first video, labeled `af’ shows Sammy Nuckolls setting up video equipment in the bathroom located at 9848 Pigeon Roost Circle, Olive Branch, Mississippi. That video shows Ashley Fisher enter the bathroom, undress, and take a shower. She finishes and leaves the bathroom. Ashley Fisher would testify that she did not give permission or consent to be recorded.

The second video, labeled `afh’ shows Sammy Nuckolls setting up video equipment in the bathroom located at 9848 Pigeon Roost Circle, Olive Branch, Mississippi. That video shows Ashley Fisher enter the bathroom, undress, and take a shower. She finishes and leaves the bathroom. Ashley Fisher would testify that she did not give permission or consent to be recorded. This video appears to be older than the video labeled `af’ due to a piece of furniture not being present in `afh.’

The third video, labeled `afp’ shows Sammy Nuckolls setting up video equipment in the bathroom located at 9848 Pigeon Roost Circle, Olive Branch, Mississippi. That video shows Ashley Fisher enter the bathroom, undress, and take a shower. She finishes and leaves the bathroom. Ashley Fisher would testify that she was pregnant in this video. Ashley Fisher would testify that she did not give permission or consent to be recorded. The piece of furniture seen in `af’ is present.

The fourth video, labeled `afrp’ shows Sammy Nuckolls setting up video equipment in the bathroom located at 9848 Pigeon Roost Circle, Olive Branch, Mississippi. That video shows Ashley Fisher enter the bathroom, undress, and take a shower. She finishes and leaves the bathroom. Ashley Fisher would testify that she did not give permission or consent to be recorded. Ashley Fisher would testify that she was pregnant when this was recorded. She would further testify that this video took place some time after `afp.’  Testimony would establish that these videos were found on the Defendant's Apple MacBook Pro (Serial number W8047932ATMA1344). The videos were all located in the subfolder orange.
Nuckolls v. State, supra.  
The opinion also explained that
[n]othing in the stipulation suggests where the transfer to the laptop took place. Every mention of Nuckolls's residence—in this count and all others—pertains only to where the filming took place. . . .
Nuckolls v. State, supra.  And it noted that,
[a]lso, Presiding Justice Randolph incorrectly contends that Nuckolls waived this assignment of error by failing to obtain a ruling in the trial court. As stated, venue is a constitutional requirement, and this Court has said repeatedly `that the question could be raised for the first time in [the Supreme Court] court,’ on appeal. As recently as 2012, we have recognized and reaffirmed this principle.

¶ 13. Nuckolls has raised this issue on appeal. . . . Nuckolls argued that `the State presented no evidence to the Court showing where the transfer took place. . . .’ With regard to the State's burden of proof, a complaint that the State failed to prove where the crime took place can be read only as a statement that the State failed to prove venue.

¶ 14.Further, the record contradicts Presiding Justice Randolph's assertion that Nuckolls `agreed that the evidence the State would offer was sufficient to convict Nuckolls.’ When the parties appeared before the circuit judge to submit the stipulation of facts, the parties repeatedly affirmed that they were asking the judge to adjudicate the defendant's guilt. Defense counsel, the circuit judge, and the prosecutor each specifically noted at one point or another that the judge had to determine whether the stipulation established Nuckolls's guilt. In fact, at one point when the circuit judge specifically asked if Nuckolls was entering a guilty plea, the prosecutor informed the judge that he had to determine Nuckolls's guilt.
Nuckolls v. State, supra (emphasis in the original).
The Supreme Court then explained that
there was no attempt to plead guilty. . . . To adopt Presiding Justice Randolph's reading would conflict with the rest of the parties' and the judge's statements. And the circuit judge apparently did not believe Nuckolls had admitted his guilt because, when the court reconvened, the trial judge began by stating

heretofore the Court was informed by counsel for the defense and counsel for the state that they wished a bench trial. That is, they wanted the Court to rule on the defendant's guilt or innocence based on a stipulation of fact.

(Emphasis added.) The judge then rendered his verdict count by count, formally finding that the stipulation provided sufficient evidence to support each one. In no way did he suggest that the parties had conceded that the stipulation provided sufficient evidence.

¶ 18.Because the State offered no evidence to meet its constitutional burden to prove venue, we must reverse the transfer convictions.
Nuckolls v. State, supra (emphasis in the original).  Since the court reversed Nuckolls’ convictions on ten of the transfer accounts because of the venue issue, it noted that it did not need to “address Nuckolls’s contention that the statute does not criminalize his conduct.”  Nuckolls v. State, supra.  
And then the Supreme Court took up Nuckolls’ final argument, i.e., that “the State failed to prove that count eleven occurred within the statute of limitations because the parties stipulated that the filming occurred within a range of dates, including dates both within and outside the two-year statute of limitations.”  Nuckolls v. State, supra.  It began its analysis by noting that
[w]hen considering the sufficiency of the evidence, our `”relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ `”The state receives the benefit of all favorable inferences that may reasonably be drawn from the evidence.”’ And the State bears the burden to prove that an offense occurred within the statute of limitations.
Nuckolls v. State, supra.  
The court then explained that
¶ 20.Here, the parties stipulated that count eleven occurred between June 1, 2007, and October 29, 2011. They also stipulated that it occurred at Nuckolls's Meadow Ridge residence, where he moved on October 6, 2009. So the date range includes a short time period—October 6, 2009, to October 28, 2009—more than two years before Nuckolls's arrest on October 29, 2011, and outside the statute of limitations.

¶ 21.The parties also stipulated, however, that `[t]he [count eleven] video ends with Sammy Nuckolls entering with a silver laptop consistent with the Apple MacBook Pro.’ Nuckolls purchased the Apple MacBook Pro on January 5, 2011. So, drawing all reasonable inferences in favor of the State, we find that the State presented sufficient evidence because the stipulation gives rise to a strong inference that the video depicts the same computer purchased in January 2011, and that the recording must have occurred after that date.
Nuckolls v. State, supra.  
The Supreme Court then announced its rulings, explaining that
Nuckolls has not appealed his convictions on counts three and four, so those convictions are not before us.

The State presented sufficient evidence to prove that count eleven—filming—occurred within the statute of limitations, so that conviction is affirmed. But the State failed to prove venue for counts one, two, five, six, seven, eight, nine, ten, twelve, and thirteen, so we reverse the trial count's judgment as to those convictions.
Nuckolls v. State, supra.  


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