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Lowe v. State

Court of Appeals of Mississippi

March 27, 2018


          DATE OF JUDGMENT: 11/20/2015





          IRVING, P.J.

         ¶1. A jury in the Jones County Circuit Court, Second Judicial District, convicted John Bartholomew Lowe of five counts of exploitation of a child for possession of child pornography. The court sentenced Lowe-who had been previously convicted of exploitation of a child and voyeurism-as a habitual offender to five consecutive terms of life imprisonment in the Mississippi Department of Corrections (MDOC).[1] Lowe now appeals, asserting the following issues: (1) whether the jury was properly instructed on circumstantial evidence; (2) whether his trial counsel was ineffective regarding jury instructions on constructive possession and circumstantial evidence; (3) whether the evidence was sufficient for his convictions or whether his convictions were contrary to the weight of the evidence; (4) whether the court erred in allowing introduction of his prior conviction for exploitation of a child; and (5) whether the court committed reversible error by allowing the State to introduce evidence of flight and in giving a jury instruction on flight. Additionally, in a supplemental brief filed pro se, Lowe asserts the following issues: (1) whether the court erred in denying his motion to suppress the evidence obtained from a laptop; (2) whether the court erred in denying his pro se "Motion in Limine to Exclude Evidence"; (3) whether the court erred in denying his pro se "Motion to Request A Franks v. Delaware Hearing"; (4) whether the court erred in denying his motion to suppress the search warrant; (5) whether the court erred in denying his pro se "Motion for Writ of Habeas Corpus Preconviction"; (6) whether the court erred in denying his pro se "Motion for Relief from Judgment or Order"; (7) whether the court constructively amended his indictment when it omitted the words "from the internet" from the jury instructions; (8) whether the court erred in denying his motion to dismiss based on the testimony of the State's expert witness; and (9) whether the court erred in allowing the jury to view the child pornography retrieved from the laptop. Finding no error, we affirm.


         ¶2. Lowe met Marie Taylor in July 2008, and the two began dating. At some point, Taylor began living with Lowe in his trailer in Jones County. Taylor, along with her two daughters-who were about eight and fifteen years old at the time-eventually moved into the trailer directly next door to Lowe's, where they were living during the events giving rise to this case. Despite the move, Taylor and Lowe continued their romantic relationship.[2]

         ¶3. Taylor testified at trial that, at some point while they were dating, Lowe acquired a broken Hewlett Packard laptop computer from his daughter. Lowe repaired the laptop and began using it. He set up two different user accounts on the laptop: "Muzicman" and "Minnie."[3] Lowe allowed Taylor and her daughters to use the laptop but instructed them to only access the "Minnie" account, which was not password-protected. Lowe told them not to use the "Muzicman" account, which was protected by a password that neither Taylor nor her daughters knew. Both Taylor and her oldest daughter testified that, although Lowe allowed them to use the laptop, they understood that it ultimately belonged to him. Taylor testified that she had never seen Lowe download child pornography. She also testified that she had never seen Lowe take his laptop with him to work. In contrast, Taylor's daughter testified that she had previously witnessed Lowe take his laptop with him when he left for work.

         ¶4. On June 30, 2009, Investigator Don Sumrall with the Jones County Sheriff's Department received reports that Lowe had inappropriately touched several children. The following day, Investigator Sumrall conducted interviews with those children. One child-a nine or ten-year-old girl identified at trial as C.S.-told Investigator Sumrall that she was playing with some other children near Lowe's trailer on one occasion, and she entered the trailer to find Lowe sitting in the living room.[4] Lowe got up, went to his bedroom and retrieved his laptop, and brought it back to the living room. Lowe turned on the laptop and showed C.S. "[a] movie with naked people in it." When Investigator Sumrall asked C.S. whether the "naked people" in the movie were adults or children, C.S. said that she did not know. C.S. then became visibly embarrassed and ran out of the interview room.

         ¶5. Subsequently, Investigator Sumrall ran a criminal history check on Lowe and discovered that he had previously pleaded guilty to both exploitation of a minor and voyeurism.[5] According to the probation order, Lowe was sentenced to serve a term of fifteen years for exploitation of a minor. Nine of those years were to be served in the custody of MDOC, with six years suspended and five years of post-release supervision.[6] As of June 30, 2009, Lowe had been out of prison for less than a year and was on probation.

         ¶6. On July 1, 2009, Investigator Sumrall went to Lowe's trailer, but Lowe was nowhere to be found. Investigator Sumrall informed Taylor that he was looking for Lowe. Taylor admitted at trial that, immediately after Investigator Sumrall left, she drove to Masonite-where Lowe was working as a janitor at the time-and left a note on his truck to warn him that the police were looking for him. Lowe failed to show up at work the next day and never picked up his final paycheck. Shortly thereafter, authorities discovered Lowe's truck in a Wal-Mart parking lot in Columbia, Mississippi. MDOC classified Lowe as an escaped fugitive and notified the United States Marshall Service of his disappearance.

         ¶7. Investigator Sumrall obtained a search warrant of Lowe's trailer to retrieve his laptop. Officials conducted a search on July 2, 2009, but were unable to recover the laptop. Later that evening, Investigator Sumrall received a phone call from Taylor, during which she told him that she had the laptop in her possession. When Investigator Sumrall asked Taylor to turn the laptop over to him, Taylor insisted that she had to go to bed because she had to go to work early the next morning; however, she told Investigator Sumrall that she would leave the laptop with a neighbor, Deanna Stringer, for him to obtain the following morning.

         ¶8. The next morning, Investigator Sumrall retrieved the laptop from Stringer. He noted that the laptop's power cord "was barely hanging by a thread" and "looked like it had been torn." Both Taylor and Stringer later testified at trial that they were unable to power-on the laptop before turning it over to Investigator Sumrall.

         ¶9. Investigator Sumrall maintained that he did not inspect the laptop at the time that he retrieved it from Stringer; rather, he obtained an additional search warrant on July 9, 2009, for the express purpose of inspecting the laptop's hard drive. Investigator Sumrall signed the affidavit accompanying the search warrant. He then turned the laptop over to Tom Thomas, a certified forensic examiner, who conducted the actual search of the laptop's contents. Under the "Muzicman" account, Thomas discovered five videos depicting child pornography, some of which had been downloaded on June 6, 2009. Thomas found no evidence of child pornography under the "Minnie" account.

         ¶10. John Claxton, Lowe's employer at Masonite, testified that, on June 6, 2009, Lowe clocked in to work at 6:06 a.m. and clocked out at 12:09 p.m. Claxton testified that Lowe was an "above average" employee. While Claxton maintained that he had never witnessed Lowe use Lowe's personal laptop at work, he admitted that there were times when Lowe was unsupervised while working. Claxton further testified that Lowe was unsupervised while at Masonite on June 6, 2009. At some point before trial, Thomas and Investigator Sumrall visited Masonite and discovered that they were able to pick up several wifi access points from the parking lot that were not password-protected and were accessible by the public.

         ¶11. The United States Marshall Service located Lowe on September 1, 2009, in a motel room in San Diego, California. He was brought back to Mississippi, and was charged with violating the conditions of his probation for leaving the state, among other reasons.[7] On December 8, 2009, a Jones County grand jury indicted Lowe on five counts of exploitation of a child under Mississippi Code Annotated section 97-5-33(3) (Rev. 2014)[8] for possession of child pornography, as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). Lowe was initially tried on April 11, 2011, and a jury found him guilty of all five counts. Lowe was sentenced to five terms of life imprisonment in MDOC custody. Lowe appealed, arguing that the trial court erred by denying him the funds he requested to hire an expert witness and by denying his request to voir dire the State's expert in front of the jury-and arguing that the verdict was against the overwhelming weight of the evidence. This Court affirmed Lowe's conviction. Lowe v. State, 178 So.3d 760, 766 (¶20) (Miss. Ct. App. 2012). The Mississippi Supreme Court granted certiorari and reversed the conviction, holding that Lowe was denied due process by the trial court's denial of funds to hire an expert witness. Lowe v. State, 127 So.3d 178, 184 (¶26) (Miss. 2013). The case was remanded and set for another trial. It is this second trial that is currently before us on appeal and is the only trial that we reference throughout the remainder of this opinion.

         ¶12. Lowe filed a pretrial motion to suppress the evidence obtained from the laptop on the basis that the July 9, 2009 search warrant and accompanying affidavit were overly broad and that the State had insufficient probable cause to conduct its search. At a hearing conducted on the motion, Lowe argued that neither the search warrant nor the affidavit specifically mentioned child pornography; rather, "the affidavit relie[d] wholly on allegations of child fondling and pictures and videos of naked people, " which did not necessarily amount to child pornography. Lowe contended that the affidavit erroneously referenced subsection (6) of 97-5-33-which concerns the use of a computer to entice a child into engaging in sexually explicit conduct-rather than subsection (3) of 97-5-33-which concerns child pornography and is the subsection under which Lowe was actually indicted. Lowe further maintained that there was insufficient evidence to suggest that Lowe showed C.S. child pornography and that what C.S. saw could have been an instance of nudity that one might see on an R-rated movie. Additionally, Lowe argued that the laptop was not found in Lowe's possession or on his property, that the laptop was bought by someone else, and that more than one person had control and dominion over the laptop prior to the issuance of the search warrant. In response, the State argued that the search warrant was not even necessary due to Lowe's status as a probationer, [9] which limited his right to privacy under the Fourth Amendment. Further, the State maintained that while the search warrant may have been executed for the purpose of discovering sexually explicit material meant to entice a child, the search happened to reveal possession of child pornography and that such evidence was admissible.

         ¶13. At the conclusion of the hearing, the trial court denied Lowe's motion to suppress on the basis that sufficient probable cause existed to warrant the search under a totality of the circumstances, particularly due to the fact that C.S. told Investigator Sumrall that Lowe had actually left the room to get his laptop, brought it back, and shown her a video of nude persons. Additionally, the court found that the search did not exceed the scope of the search warrant because it "was for the search of the contents of the computer and . . . during the search, the search revealed evidence of a crime, albeit a slightly different crime than the crime described in the subsection mentioned in the search warrant."[10]

         ¶14. Lowe's trial was conducted over the course of two days. During the cross-examination of Stringer, Lowe's counsel asked whether her stepson had ever visited either Lowe's or Marie's trailer. He then asked whether Stringer was aware that her stepson was currently serving time for child pornography. The State immediately objected, and the jury was sent out. The State informed the trial judge that Stringer's stepson had been indicted, but not yet convicted, for possession of child pornography. The State argued that, by bringing up Stringer's stepson's indictment, they had poisoned the jury pool by suggesting that he had had access to Lowe's laptop and may have committed the crimes for which Lowe was charged. The State maintained that Lowe had therefore opened the door to allow evidence of his prior conviction of possession of child pornography. Lowe's counsel, in response, argued that "bringing out the prior bad acts of a third party is far different from bringing [out] prior bad acts of a defendant."

         ¶15. After hearing both arguments, the court concluded that the purpose in bringing up Stringer's stepson's indictment was "to plant in the jury's mind that someone else, a person of a different identity, downloaded or received [the] pornographic images on the computer." The court consequently ruled that the door had been opened for the use of Lowe's prior conviction "for the purpose of proving identity and motive." The jury was sent back in, and Stringer's testimony continued. On redirect examination, the State introduced evidence of Lowe's prior conviction for child pornography by asking Stringer if she was aware of the conviction. The trial judge gave a limiting instruction to the jury, explaining that evidence of Lowe's previous conviction was to be considered only for purposes of identity or motive.

         ¶16. At the conclusion of trial, Lowe was convicted on all five counts. The trial judge sentenced Lowe to life imprisonment in MDOC custody for each count-due to his status as a habitual offender for having been convicted of two separate felonies-with the five life sentences to run consecutively. Lowe filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the court denied. Lowe filed a notice of appeal. His counsel filed a brief, and we granted leave for Lowe to file a pro se supplemental brief, which he filed thereafter.


         A. Issues Presented by Lowe's Counsel

         1. Jury Instructions

         ¶17. Lowe makes a number of arguments[11] concerning the jury instructions that were given, culminating in his contention that the jury was not properly instructed as to the definition of circumstantial evidence, or as to the burden of proof required in a case based wholly on circumstantial evidence. In response, the State argues that the existence of direct evidence in this matter precludes Lowe's entitlement to a circumstantial-evidence instruction.

         ¶18. "Jury instructions are reviewed under an abuse-of-discretion standard." Burgess v. State, 178 So.3d 1266, 1272 (¶14) (Miss. 2015) (citation omitted). "Where there is direct evidence of a crime, the circumstantial[-]evidence instruction need not be given." Foley v. State, 914 So.2d 677, 686 (¶15) (Miss. 2005). "Direct evidence has been held to include evidence such as eyewitness testimony, the defendant's confession to the offense charged, or the defendant's admission as to an important element thereof." Argo v. State, 13 So.3d 849, 852 (¶9) (Miss. Ct. App. 2009). However, "there are certainly more types of direct evidence than eyewitness testimony or confessions." Foley, 914 So.2d at 686 (¶15). "Constructive possession may be established by direct evidence or circumstantial evidence." Keys v. State, 478 So.2d 266, 268 (Miss. 1985). "An item is within one's constructive possession when it is subject to his dominion or control." Id.

         ¶19. As previously stated, Investigator Sumrall commenced his investigation of Lowe due, in part, to testimony by C.S. that Lowe had shown her a video depicting naked persons on his laptop. While this fact alone may not amount to direct evidence of possession of child pornography, we also note that five videos depicting child pornography were recovered from Lowe's laptop. At trial, both Taylor and her oldest daughter testified that Lowe was the owner of the laptop and that he accessed it using the "Muzicman" account. Taylor and her daughter also testified that "Muzicman" was password-protected and that Lowe had instructed them not to use that account. Taylor's daughter testified that she had witnessed Lowe take his laptop to work. Claxton testified that, on the day some of the videos were purportedly downloaded, Lowe had clocked in to work and was unsupervised. Finally, Thomas testified that several wifi access points were accessible by the public from the Masonite parking lot. We find that all of this evidence, combined, serves as direct evidence to show that child pornography was recovered from the laptop, that Lowe was in dominion or control over the laptop, and that Lowe possessed the child pornography, constructively, at the very least. As such, we find that the trial court did not abuse its discretion in refusing the circumstantial-evidence instruction.

         2. Ineffective Assistance of Counsel

         ¶20. Lowe argues that he received constitutionally ineffective assistance of counsel at trial because his counsel failed to submit a constructive-possession instruction, because his counsel objected to jury instruction S-6 and acquiesced to its withdrawal, and because his counsel presented an instruction that inadequately instructed the jury on the burden of proof required for circumstantial evidence. In response, the State argues that Lowe's counsel was not ineffective, and that any decisions his counsel made were strategic.

         ¶21. This Court has held that:

When a party raises an ineffective[-]assistance[-]of[-]counsel claim on direct appeal, the proper resolution is to deny relief without prejudice to the defendant's right to assert the same claim in a post-conviction[-]relief proceeding. We should reach the merits on an [ineffective-assistance-of-counsel] issue on direct appeal only if (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. If we do not consider the issue due to the state of the ...

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