MICHAEL C. DUMAS V. COMMONWEALTH OF KENTUCKYAnnotate this Case
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MICHAEL C . DUMAS
ON APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS FOUST, JUDGE
NO . 09-CR-00118
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
Michael Dumas appeals as a matter of right' from a circuit court
judgment following a jury trial in which he was convicted of four counts of
distributing matter portraying a minor in a sexual performance and three
counts of possession of matter portraying a minor in a sexual performance.
Dumas argues that the trial court erred by failing to (1) suppress several key
pieces of evidence seized in the search of his residence, (2) dismiss the
indictment against him, (3) order a new trial, and (4) declare parts of Kentuc
Revised Statutes (KRS) 531 .335 unconstitutionally overbroad. 2 We find no
error on these claims and affirm the trial court's judgment .
Ky. Const. § 110(2)(b) .
The Court recognizes the vague description presented of Dumas's alleged errors .
However, Dumas's appeal is loaded like a shotgun . He makes many allegations of
error that are spread throughout the appeal; and each carries less velocity due to
shortsighted arguments, mischaracterizations, and lack of coherency. We will do
our best to appropriately characterize and address the issues presented by Dumas
in an organized manner.
I. FACTUAL AND PROCEDURAL HISTORY .
A few days after River Marine Electronics fired Dumas, he returned to its
place of business in McCracken County to pick up his last paycheck and to
return the cell phone River Marine had issued to him for work .
While deleting contact information and other items saved on the cell
phone, one of the River Marine owners discovered a disturbing picture
electronically stored on it of a young girl posing suggestively and wearing adult
styled lingerie . River Marine gave the cell phone to the McCracken County
Sheriffs Department, which turned the cell phone over to the Marshall County
Sheriff's Department because Dumas resided in Marshall County . The
Marshall County Sheriffs Department conducted a brief investigation and
obtained a search warrant for Dumas's residence .
During the search of Dumas's residence, the sheriff's deputies seized
computer and audio-visual equipment, compact discs, images of nude females,
and e-mails . Other law enforcement agencies assisted the Marshall County
Sheriff with forensic analysis of the computer drives and other media
The Marshall County Grand Jury indicted Dumas on sixty-two counts of
distributing matter portraying a sexual performance by a minor and sixty-two
counts of possession of matter portraying a sexual performance by a minor .
Before trial, a superseding indictment charged Dumas with four counts of
distributing matter portraying a minor in a sexual performance and three
counts of possession of matter portraying a minor in a sexual performance .
Ultimately, the trial court consolidated the indictments and dismissed the
original indictment without prejudice . 3 The case was tried before a jury.
Dumas's trial lasted several days. After hearing all the evidence, the jury
found Dumas guilty on the seven charges contained in the superseding
indictment. Dumas received five years' imprisonment on each count, and the
jury recommended some of the sentences ,run concurrently and some
consecutively, for a total of twenty years' imprisonment . The trial court entered
judgment accordingly .
II . ANALYSIS.
A. The Trial Court Properly Denied Dumas's Motion to Suppress Evidence
Seized Via the Search Warrant.
1 . Matters in the Trial Court -- The Affidavit and Suppression Hearing.
Dumas argues the trial court erred by denying his pretrial motion to
suppress evidence seized in the search of his residence. We conclude that the
trial court properly denied the suppression motion because we find that the
record supports the trial court's ruling that the search warrant affidavit
contained sufficient information to establish probable cause for the issuance of
the search warrant .
The standard of appellate review of a decision of the trial court on a
suppression motion following a hearing is twofold . First, the factual findings of
Dumas takes issue with the fact a hearing was not provided to argue that the 124count original indictment be dismissed with prejudice rather than without
prejudice . We can see no reason why a defendant should be entitled to a hearing
concerning dismissing his case with prejudice when it is clear he was not entitled
to an outright dismissal at trial. In this instance, the prosecution exercised its
prosecutorial discretion ; and Dumas cites no legal authority to support his claim .
the trial court are considered conclusive if they are supported by substantial
evidence .4 Second, when the findings of facts are supported by substantial
evidence, the relevant inquiry is whether any rule of law is violated as applied
to the established facts .5 So we conduct a de novo review to determine whether
the court's decision was correct as a matter of law.6
Dumas alleged the probable cause affidavit submitted in this case
contained intentionally or recklessly false statements and omitted facts . The
trial court held an evidentiary hearing to determine whether Dumas presented
valid assertions . Detective Hilbrecht, who signed the affidavit in support of the
requested search warrant, testified at the suppression hearing .
Detective Hilbrecht's testimony detailed how he (1) became aware
through the McCracken County Sheriff's Department of Dumas's cell phone
containing a picture of a young girl posed in a sexually suggestive manner,
wearing lingerie inappropriate for her age ; (2) interviewed Dumas's former
employer about the cell phone ; and (3) decided to take a picture of the cell
phone image to the Marshall County Attorney's Office to ask for assistance in
drafting papers to take to a judge in order to obtain a search warrant for
Dumas's residence . The affidavit contained the following information in
pertinent part :
Affiant has been an officer in [the Marshall County Sheriff's
Department] for a period of 7 years and 10 months . The
Kentucky Rules of Criminal Procedure (RCr) 9.78.
Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky . 1998) (citations omitted) .
Roberson v. Commonwealth, 185 S .W.3d 634, 637 (Ky. 2006) (citations omitted) .
information and observations contained herein were received and
made in [his] capacity as an officer hereof. On Wednesday,
April 18, 2007, at approximately 3:16 PM, Affiant received
information from/observed :
Affiant received information from Detective David Shepherd of the
McCracken County Sheriff's Department . . . . Det. Shepherd sent
an [e-mail] with an attached photo that was found on a camera
phone that was once possessed by Dumas. The photo was of a
young girl, who appeared to be between the ages of 6 & 8, wearing
adult-type lingerie . Specifically, the girl had on a garter belt, panty
hose, lace panties, and what appeared to be a [brassiere] . The
[child's] upper thighs and midriff are exposed in the photo and she
is posing in a provocative manner. Detective Shepherd showed
Affiant the phone with the photo on April 23, 2007 .
Acting on the information received, Affiant conducted the following
independent investigation :
Affiant learned that this phone had been issued to Dumas as a
part of his employment . . . [Affiant learned that Dumas was fired
on April 13, 2007, and turned the phone in to his employer who
contacted law enforcement] . . . Affiant learned that Dumas was
permitted to have the phone in question with him at all times . . . .
Affiant has reasonable and [probable] cause to believe, and
believes, grounds exist for issuance of a Search Warrant based on
the aforementioned facts, information, and circumstances, and
prays a Search Warrant be issued, that the property (or any part
thereof) be seized and brought before the Court and/or retained
subject to order of said Court.
The affidavit also requested the following items of personal property as
items of interest :
any and all devices capable of taking and/or storing electronic
photographs, including but not limited to, computers, web cams,
hard drives, CD/storage disks, thumb drives, flash drives,
VHS tapes, DVD's, magazines, photographs, PDA's, phones with
digital cameras, film negatives, 35 mm films, photographs stored in
[e-mail] and/or computer servers . Also any and all information
which could identify minor child in photograph described in
Affidavit on page 2 .
Dumas argued to the trial court the affidavit was facially insufficient
because (1) Detective Hilbrecht stated he did not consider the picture of the
child to be pornographic and (2) the image became known to law enforcement
in neighboring McCracken County rather than in Dumas's home county,
Marshall County .
At the conclusion of the hearing, the trial court rejected Dumas's
argument and ruled that the information contained in the affidavit sufficiently
indicated "probable cause to believe Dumas possessed illegal materials or
committed a crime" ; and the affidavit did not contain untruthful . or deceitful
2. Relevant Legal Standardsfor Search Warrant Affidavits.
The Fourth Amendment of the U . S . Constitution and Section 10 of the
Kentucky Constitution mandate that no warrant shall be issued without
probable cause . The Supreme Court of the United States recognized a "totality
of the circumstances" approach to determining probable cause related to
search warrants in Illinois v. Gates.
The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all circumstances set forth
in the affidavit before him . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular
place . And the duty of the reviewing court is simply to ensure that
the magistrate had a "substantial basis for . . . concluding" that
probable cause existed .$
462 U .S . 213 (1983) (The Court specifically addressed determining whether
probable cause existed to issue a warrant based on an anonymous tip ; but the
guidelines should be applied in other situations to determine probable cause, as
Id. at 238-39 (citations omitted) .
This Court adopted the "totality of the circumstances" test for Kentuc
Beemer v. Commonwealth. 9
An affidavit supporting a search warrant must include a statement of
facts sufficient to support a finding of probable cause. 10 Probable cause exists
when the totality of the circumstances indicates a fair probability that
contraband or evidence of a crime will be found in a particular place ." Upon
review, the warrant-issuing judge is given great deference ; and the decision
must not be reversed unless the court arbitrarily exercised its discretion . 12
a. Beckam v. Commonwealth.
In Beckam v. Commonwealth,
the Court of Appeals dealt with whether
an affidavit created a sufficient factual nexus to issue a warrant and search a
residence . Beckam was
in which a car dealership owner contacted the
Kentucky State Police regarding an individual, Beckam, who rented several
vehicles from the dealer over a period of several weeks . 14 The car dealer
reported suspicious findings in the returned vehicles . 15 The investigating
665 S.W .2d 912 (Ky. 1984) .
Carrier v. Commonwealth, 142 S .W .3d 670, 674 (Ky. 2004) (citing Vick v.
Commonwealth, 264 S.W. 1079, 1080 (Ky.App . 1924)) .
Moore v. Commonwealth, 159 S .W.3d 325, 329 (Ky. 2005)
284 S .W.3d 547 (Ky.App . 2009) .
A car rented for one week was returned with over 2,000 new miles on it and a large
amount of alleged drug residue in it. The back seat was removed and damaged . A
spare tire was missing. A second van was rented and returned two days later with
290 miles and alleged drug residue.
trooper took field samples of the alleged marijuana residue in the second
vehicle and received a positive result- 16 The trooper also found a set of
electronic scales in one of the vehicles . 17 After investigating the rental cars, the
trooper ran a background check and discovered that Beckam and his wife had
criminal records for drug-related offenses .'18 After confirming Beckam's
address with the rental car information, he requested a search warrant . 19 The
warrant issued and, when executed, many items were seized resulting in an
indictment. 20 Before trial, Beckam asserted the affidavit was insufficient and
moved to suppress all evidence obtained as a result of the search . 21
The Court of Appeals looked to whether the trooper's affidavit provided "a
sufficient nexus for authorizing a search warrant to search [Beckam's]
residence ."22 The court found persuasive a federal case, which held, based
upon the relevant facts, that the magistrate was justified in inferring the
suspect was engaged in marijuana trafficking .23 Specifically, the federal court
held, "`in issuing a search warrant, a magistrate is entitled to draw reasonable
284 S.W.3d at 549 (Ky.App . 2009) .
Beckam, 284 S.W.3d at 549 (Ky. App . 2009) .
United States u. McClellan, 165 F.3d 535, 546 ('7th Cir . 1999) (In McClellan, a
DEA agent's request for a search warrant was supported by an affidavit stating a
source indicated marijuana was getting ready to be moved across the country ; the
individual in question was previously arrested in possession of a large quantity of
marijuana ; and that in the past, the suspect was known to keep marijuana at his
home .) .
inferences about where evidence is likely to be kept, based on the nature of the
evidence and the type of offense, and that in the case of drug dealers evidence
is likely to be found where the dealers live. "'24 The court found that the
principle articulated by the federal courts reflected the "common sense"
approach required by Beemer v. Commonwealth25 and adopted it. 26
The Beckam court noted our decision in Moore v. Commonwealth, 27
which also permitted a warrant-issuing judge to infer a nexus between a crime
and the location of evidence of that crime . 28 The facts in Moore related to a
banking scam in which at least one fraudulent instrument was a "computer
generated check."29 The fact that the check was created on a computer led the
court to reason that "[i]t was highly likely .Moore used a computer or similar
machine in the secrecy of his home . Thus, such a description of the
instrument and the certainty that Moore was passing the instruments gave
information that provided a nexus between the crime and the place ." 3 °
Id. (quoting United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir. 1996) . Other
federal circuits have dealt with similar issues and reached similar conclusions .
See United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir. 2002) for a discussion
of cases from the First, Second, Fourth, Sixth, Eighth, Ninth, and D .C. Circuits) .
665 S .W .2d at 914 .
Beckam, 284 S .W.3d at 550 .
159 S .W .3d 325 .
Id. at 330 .
b. Supported by the Facts Contained Within the Affidavit, the Search
Warrant was Supported by Probable Cause.
In this case, the affidavit presented to the issuing judge contained an
explicit description of the location to be searched. The officer seeking the
warrant described a particular category of items 31 that might be used to
produce, possess, or distribute matter portraying a minor in a sexual
performance . In addition to the specific items listed, the affidavit requested
permission to search for information to enable the identification of the minor
child in the described photo. The "informants" are not specifically named in
the affidavit . But they are described as Dumas's former employers who saw
the picture described in the affidavit and contacted law enforcement. In the
affidavit, Detective Hilbrecht specifically states he received the described photo
of the young girl from a detective in the McCracken County Sheriff's
Department . The affidavit indicates Detective Hilbrecht performed some
investigation to determine the terms of Dumas's possession of the cell phone.
In Crum v. Commonwealth,32 we found an affidavit grossly deficient of
indicia of probable cause where it listed things to be seized as "illegal
contraband," did not contain the name of the informant, did not address the
reliability of the informant, and was vague about the requesting officer's
This included items of technology that might be used to record, transfer, and
preserve media images . Although the list may be long, it clearly reflects a specific
type of item to be searched. It does not authorize law enforcement to look for
generic "illegal contraband," which we found so troubling in Crum v.
Commonwealth, 223 S .W .3d 109, 112 (Ky. 2007) .
223 S .W.3d 109 .
independent investigation . 33 We found that "[o]n the whole, it [was] impossible
to tell the basis of the officer's knowledge or exactly what he is looking for." 34
In contrast, Detective Hilbrecht made it known where he received his
knowledge and what he expected to find during a search, although the affidavit
lacked some clarity .
By looking at the four corners of the affidavit alone, the issuing judge
could determine that an experienced law enforcement officer35 received an
e-mail from another law enforcement officer .36 The affidavit also makes it
known that the photo did not come from some unknown informant eventually
becoming transferred from one agency to another until someone took initiative
to investigate . The photo came into the hands of law enforcement because
employees at Dumas's former place of employment, River Marine Electronics in
Paducah, contacted law enforcement to express concern over a picture . The
affidavit also contained a tame description of a crude photo of a young girl in
adult lingerie . Detective Hilbrecht was able to describe the photo in the
affidavit because he personally viewed it.37 None of these facts require extrinsic
evidence to accept .
Id. at 112 .
The affidavit states that the "Affiant has been an officer . . . for a period of 7 years
and 10 months ."
Presumably, the law enforcement officer that sent Detective Hilbrecht the photo
possesses a relatively high level of experience because he also attained the rank of
At the suppression hearing, Detective Hilbrecht could not recall with certainty that
he showed the judge issuing the warrant the picture . Detective Hilbrecht believed
the judge saw the picture but was certain he read the description .
Based on substantial evidence, the trial court found the search warrant
valid and did not suppress evidence discovered at Dumas's residence . As a
matter of law, the trial court's decision was correct and we affirm.
B. Dumas's Motion for Dismissal Based on Double Jeopardy and Dumas's
Motion for Judgment NOV Properly Denied.
1 . The Trial Court Properly Denied Dumas's Motion to Dismiss Based on
Double Jeopardy Claims.
Dumas argued to the trial court that two of three counts of possession of
matter portraying a sexual performance by a minor should have been
dismissed . Dumas asserted that three of the four counts of possession of
matter portraying a sexual performance by a minor arose from a common act
or occurrence and should be brought as a single count . Specifically, he
contended that multiple counts of the same charge violated double jeopardy.
He renews the same argument before us . The trial court denied dismissal .
And this Court affirms the decision of the trial court .
Dumas relied heavily on Clark v. Commonwealth38 before the trial court
as he does now. He improperly applies the holding in Clark to this case . In
Clark, this Court held convictions for promotion of a sexual performance with a
minor and the use of a minor in a sexual performance violated double jeopardy
because the convictions arose from the same conduct . 39 We applied the
BlockburgeHO test and concluded that the exact same facts proved the
38 267 S .W.3d 668 (Ky. 2008) .
commission of two separate offenses but could only result in conviction under
one statute because of the protections of the double jeopardy clause .41
Dumas was not charged with either of the offenses discussed in Clark.
Dumas faced charges of possession of matter portraying a sexual performance
by a minor42 and distributing matter portraying a sexual performance by a
minor .43 Upon comparing those statutes, it becomes clear the different types of
proof to sustain conviction : one requires possession of matter and the other
requires distribution of matter. As such, they do not violate Blockburger.
Because Blockburger addresses convictions of different offenses for one
set of actions, that holding is not the applicable analytical test for determining
whether multiple counts of the same offense can be brought by the
Commonwealth. Instead, KRS 505.020 provides the relevant parameters for
charging multiple counts of the same offense:
When a single course of conduct of a defendant may establish the
commission of more than one (1) offense, he may be prosecuted for
each such offense . He may not, however, be convicted of more
than one (1) offense when :
(c) The offense is designed to prohibit a continuing course of
conduct and the defendant's course of conduct was
284 U .S . 299 (1932) (adopted by Commonwealth v. Burge, 947 S .W.2d 805 (Ky .
1996) (stating violations of the Double Jeopardy Clause must be determined by
whether a single course of conduct has resulted in a violation of two distinct
statutes and, if so, whether each state requires proof of an additional fact which
the other does not.) .
267 S .W.3d at 677-78 .
KRS 531 .335 .
KRS 531 .340 .
uninterrupted by legal process, unless the law expressly
provides that specific periods of such conduct constitute
separate offenses .
In Williams v. Commonwealth, 44 we held, "Whether a particular course of
conduct involves one or more distinct offenses under a statute depends on how
a legislature has defined the allowable unit of prosecution ."45 Both
KRS 531 .335 (possession) and KRS 531 .340 (distribution) use the word
"matter" in reference to the unit of prosecution. KRS 531 .300 states:
"Matter" means any book, magazine, newspaper, or other printed
or written material or any picture, drawing, photograph, motion
picture, live image transmitted over the Internet or other electronic
network, or other pictorial representation or any statue or other
figure, or any recording transcription or mechanical, chemical or
electrical reproduction or any other articles, equipment, machines,
or materials . . . .
The legislature's use of the singular words "matter" and "any" purposely allows
for the prosecution of each piece of contraband an individual possesses .
In the present case, Dumas argues double jeopardy violations existed
when the Commonwealth indicted him on three counts of possession of matter
portraying a sexual performance by a minor . Counts Five, Six, and Seven of
the indictment are for two different computer hard drives with digital images
and videos of sexual performances by minors and a collection of compact discs
containing digital images and videos of sexual performances by minors . Each
count is for a distinctly different piece of property containing child
178 S.W.3d 491 (Ky. 2005) .
Id. at 495 .
pornography. The Commonwealth properly brought these as separate and
distinct charges .
2. The Trial Court Property Denied Dumas's Motion to Dismiss for JNOV.
Under one subheading, entitled "Appellant's Motion for JNOV," Dumas
lumps assertions regarding a variety of motions, including those related to
directed verdict, double jeopardy, and evidentiary claims . All of these topics
are mentioned by Dumas and summed up by stating that his motion for
directed verdict and JNOV should have been granted. Because we addressed
the double jeopardy issue earlier, we will address the trial court's decision not
to grant a JNOV because Dumas styles his appeal in that manner .
Dumas was charged with four counts of distributing matter portraying a
sexual performance by a minor. He contends insufficient support existed to
justify those convictions because the Commonwealth did not present evidence
an individual received the e-mails . On this point, Dumas is clearly wrong.
KRS 531 .34046 does not require proof of actual distribution. In fact,
A person is guilty of distribution of matter portraying a sexual performance by a
minor when, having knowledge of its content and character, he or she :
(a) Sends or causes to be sent into this state for sale or distribution ; or
(b) Brings or causes to be brought into this state for sale or distribution ; or
(c) In this state, he or she:
1 . Exhibits for profit or gain ; or
2. Distributes; or
3. Offers to distribute ; or
4. Has in his or her possession with intent to distribute, exhibit for profit or
gain or offer to distribute, any matter portraying a sexual performance by
KRS 531 .340 contains a rebuttable presumption that anyone who possesses
matter portraying a sexual performance by a minor intends to distribute that
matter . In the case of Dumas, the Commonwealth presented evidence
confirming he sent e-mails containing explicit images of minors to another
Additionally, Dumas takes issue with evidentiary rulings made by the
trial court . Dumas asserts that various pieces of evidence should have been
excluded because there was not a perfect chain of custody. At the same time,
Dumas acknowledges a perfect chain of custody is not necessary to make
evidence admissible, particularly when items are clearly identifiable (in the
present matter, this refers to a cell phone and various computer components) .
The Commonwealth elicited substantial witness testimony placing the cell
phone, computer components, and media images in Dumas's possession.
We find no error in admitting the evidence in question . However, the
Court notes Dumas pays little attention to the varying standards of review
applied to his assertions of errors. His arguments focus on the weight of the
evidence rather than its admissibility as a matter of law. Furthermore,
Dumas's arguments fail to discuss how the trial court's decision to admit
evidence was an abuse of discretion.
(2) Any person who has in his or her possession more than one (1) unit of material
coming within the provision of KRS 531 .300(2) shall be rebuttably presumed to
have such material in his or her possession with the intent to distribute it.
(3) Distribution of matter portraying a sexual performance by a minor is a Class D
felony for the first offense and a Class C felony for each subsequent offense .
3. Denying Dumas's Motion for a New Trial was Proper for the Trial
Dumas asserts the trial court erred when it denied his motion for a new
trial . Again, Dumas's several allegations of error are superficial, conclusory
statements with little factual and legal substance to support the claims . We
will strictly focus our analysis on the relief Dumas specifically requests :
reversal of the trial court's decision not to grant a new trial.
A reviewing court will not interfere with a trial court's decision not to
grant a new trial unless there has been an abuse of discretion .47 With some
detail, Dumas complains he (1) was denied his right to confront a witness,
(2) was deprived a fair trial when the Commonwealth amended his indictment
before trial, and (3) should have been granted a mistrial because of juror
irregularities . We briefly analyze his-arguments .
Dumas was not denied the right to confront a witness, Tim Bennett.
Bennett allegedly received e-mails containing matter portraying a sexual
performance by a minor, and he asserted his right under the Fifth Amendment
of the United States Constitution48 not to incriminate himself. In Kentucky,
the prosecution cannot call a witness who will invoke his Fifth Amendment
Fister v. Commonwealth, 133 S.W.3d 480, 487 (Ky.App . 2003) (citation omitted) .
"No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same offence to be twice put
in jeopardy of life or limb ; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just
right and refuse to answer substantive questions .49 Under this rule, the trial
court properly excused Bennett ; and Dumas was not deprived any right.
No error occurred when the indictment against Dumas was amended
before trial. The Kentucky Rules of Criminal Procedure provide that an
indictment may be amended before the verdict when no additional offense is
charged, and the defendant suffers no prejudice of his substantial rights . 50 At
the beginning of the trial, the Commonwealth made a motion to amend dates in
the indictment. The issues at trial were not date-specific, so this change was
more clerical than substantive in its nature. Dumas's rights were not
substantially prejudiced in any way .
Finally, Dumas contends several errors occurred in relation to the venire.
For reasons that are unclear from the record, an insufficient number of
potential jurors arrived the morning of trial. The trial court decided to adjourn
and resume jury selection later in the day to give the circuit clerk an
opportunity to contact absent veniremembers . The circuit clerk was instructed
to advise any missing veniremembers that their presence was a necessity to
begin the trial. In the afternoon, a sufficient number of veniremembers
appeared and jury selection began. The trial court took appropriate measures
Clayton v. Commonwealth, 786 S .W.2d 866 (Ky. 1990) . (The Court recognized
federal rulings that neither party can call a witness who will refuse to testify based
on his Fifth Amendment rights . The Court further acknowledged that Kentucky
will not allow any party to call a witness who will refuse to testify on Fifth
RCr 6 .16 .
to ensure a proper pool of potential jurors for trial, thereby protecting Dumas's
right to a fair trial by an impartial jury of the county in which he lives . 51
Dumas also alleges the trial court erred when it failed to strike two
prospective jurors for cause. Prospective Juror W stated a witness might be
related to her. Prospective Juror W was only certain her cousin was married to
a woman having the same name as one of the trial witnesses . The prospective
juror resolutely maintained that this fact would have no bearing on her ability
to sit as a juror for Dumas's trial . Prospective Juror H informed the court she
knew two witnesses, Dumas's former employers ; but that fact would not
influence her ability to make a decision based solely on the evidence. Dumas
failed to show either prospective juror exhibited bias or should be excused for
This court finds no reason to disturb the decision of the trial court not to
grant a new trial. Individually or in the aggregate, Dumas's allegations do not
establish any error by the trial court and fall far short of demonstrating any
abuse of discretion .
C. KRS 531 .335 is Not Unconstitutional .
Dumas relies on Ashcroft v. Free Speech Coalition52 to support his
argument that KRS 531 .335 is unconstitutionally overbroad because it
encumbers his First Amendment right to free speech by criminalizing
Dumas cites KRS 29A .100 in support of his claim . But KRS 29A.100 addresses
the rules and procedures related to a judge's decision to excuse a juror from
service or postpone a juror's service . Because the missing veniremembers were
absent and not excused, the statute has no relation to the matter before us.
535 U.S . 234 (2002) .
possession of images of fictitious or virtual children. In Ashcroft, the United
States Supreme Court found the portions'of 18 U .S .C . § 2256 that criminalized
possession of images that appeared to be a minor or contained the impression of
minors were overbroad .53 KRS 531 .335 is not strictly controlled by the Ashcroft
decision because the language of the statute addresses possession of matter
portraying sexual performances by minors, not virtual representations of
To establish a statute is constitutionally overbroad, an appellant must
show the statute "needlessly prohibits constitutionally protected activities or
may be enforced in an arbitrary manner ." 54 Additionally, we recognize a strong
presumption in favor of constitutionality, and this Court will uphold a statute
when possible . 55
Dumas challenges KRS 531 .335, which states :
(1) A person is guilty of possession of matter portraying a sexual
performance by a minor when, having knowledge of its content,
character, and that the sexual performance is by a minor, he or
she knowingly has in his or her possession or control any
matter which visually depicts an actual sexual performance by
a minor person .
Dumas was convicted for violating KRS 531 .335 (possession of matter
portraying a sexual performance by a minor) and KRS 531 .340 (distribution of
matter portraying a sexual performance by a minor) . In 2001, the Kentucky
Court of Appeals considered a constitutional challenge to KRS 531 .340 in
State Board for Elementary and Secondary Education v. Howard, 834 S.W2d . 657,
661 (Ky. 1992) .
Ratliff v. Fiscal Court of Caldwell County, Kentucky, 617 S .W.2d 36, 38 (Ky. 1981) .
Hause v. Commonwealth. 56 In Hause, the court rejected the argument that
KRS 531 .340 prohibited constitutionally permissible conduct (distribution of
virtual portrayals of fictitious minors) . The court found the plain meaning of
the word "minor" referred to a person.57 Consequently, the statute did not
control distribution of computer-generated pornography.-58
Dumas calls into question the constitutional validity of a companion
statute that uses the same language considered by the Court of Appeals in
Hause. We agree with the Hause analysis and find it applicable in this case .
The statute does not attempt to control fictitious or virtual images of
minors. In Free Speech Coalition v. Reno,-59 the court stated, "Congress has no
compelling interest in regulating sexually explicit materials that do not contain
visual images of actual children ."60 While that may be true, our General
Assembly has a great interest in protecting actual children from involvement in
the exhibition of sexual performances . Regarding KRS 531 .335, the word minor
means a real person under the age of eighteen . The statute criminalizes the
activity of individuals who possess sexually explicit images of real people under
the age of eighteen. This statute is neither overbroad nor confusing in its
83 S.W.3d 1 (Ky.App 2001) .
Id. a t 7-8 .
198 F.M. 1083 (9th Circuit 1999) .
Id. at 1092 .
III. CONCLUSION .
We affirm the judgment of the trial court.
All sitting. All concur.
COUNSEL FOR APPELLANT :
Lisa Ann Derenard
Derenard Law Office
1765 Mayfield Highway, Suite B
P. O . Box 625
Benton, Kentucky 42025-0625
COUNSEL FOR APPELLEE:
Attorney General of Kentuc
Jason Bradley Moore
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
Michael Louis Harned
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 406,01