Wednesday, January 9, 2013
What Kind of Crime? Utah Court Finds Possession of Child Pornography Not Child Molestation Under Rule 414
In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.
So, what exactly counts as "child molestation" for Rule 414(a) purposes? Let's take a look at the recent opinion of the United States District Court for the District of Utah in United States v. Gardner, 2013 WL 53845 (D.Utah 2013).
In Gardner, Bryan Gardner was charged with a crime of child molestation. Before trial, the United States filed a Notice of Intent to Introduce Evidence Pursuant to Rule 414. One category of evidence that the government intended to introduce was evidence related to Gardner's 2005 convictions on two counts of sexual exploitation of a minor based upon his possession of videos containing images of naked prepubescent boys.
In response to the government's Notice, Gardner responded that evidence relating to his 2005 conviction was not evidence that he committed "child molestation" as defined in Rule 414. The court agreed, finding that
Mr. Gardner plead guilty in June 2005 to two counts of Sexual Exploitation of a Minor in violation of Utah Code Annotated § 76–5a–3 (renumbered in 2011 to § 76–5b–201) which prohibits possession of child pornography. Both the state and federal statutes define child pornography as the visual depiction of a minor engaging in sexually explicit conduct. See Utah Code Ann. § 76–5b–103(1); 18 U.S.C. § 2256(2)(A). But Utah Code Annotated § 76–5b–103(10)(f) (formerly § 76–5a–2(8)(f)) has a definition of "sexually explicit conduct" not found in § 2256(2)(A): "the visual depiction of nudity or partial nudity for the purpose of causing arousal of any person." The government argues that the type of visual depiction described in § 76–5b–103(10)(f) is covered by the federal definition of sexually explicit conduct: "lascivious exhibition of the genitals" found in § 2256(2)(A)(v). The court disagrees. The Utah code definition does not require that the genitals be exhibited, yet that requirement is part of the federal definition. For that reason, the court concludes that Mr. Gardner's 2005 conviction is not admissible under Rule 414....
(The court did, however, find that evidence relating to the 2005 convictions was admissible under Federal Rule of Evidence 404(b)).