John G. Argo, IV v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-01968-COA
JOHN G. ARGO, IV
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
10/23/2007
HON. ROBERT P. CHAMBERLIN
DESOTO COUNTY CIRCUIT COURT
RONALD W. LEWIS
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
JOHN W. CHAMPION
CRIMINAL - FELONY
CONVICTED OF FOURTEEN COUNTS OF
CHILD EXPLOITATION AND SENTENCED
TO FIFTEEN YEARS FOR EACH COUNT IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH
THE SENTENCES TO RUN
CONCURRENTLY FOLLOWED BY FIVE
YEARS OF POST-RELEASE SUPERVISION
AFFIRMED - 07/21/2009
BEFORE MYERS, P.J., IRVING AND ROBERTS, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
John G. Argo IV was convicted of fourteen counts of exploitation of children in
violation of Mississippi Code Annotated section 97-5-33(5) (Rev. 2006). The DeSoto
County Circuit Court sentenced Argo to fourteen concurrent sentences of fifteen years each
in the custody of the Mississippi Department of Corrections followed by five years of postrelease supervision. Aggrieved, Argo appeals and raises the following issues: (1) he received
ineffective assistance of counsel; (2) the circuit court erred when it failed to grant a
circumstantial-evidence instruction; (3) the prosecution engaged in reversible misconduct;
and (4) the evidence was insufficient to convict him. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
In October 2004, the National Center for Missing and Exploited Children contacted
the Mississippi Attorney General’s Office regarding the transmission and receipt of images
depicting children engaged in sexually explicit conduct. Keith Leavitt, a special investigator
with the Mississippi Cyber Crime Center, subpoenaed America Online (AOL), an internet
service provider, regarding such images.
As a result, Investigator Leavitt obtained
information that led him to Argo.
¶3.
Investigator Robert Mahaffey, also with the Mississippi Cyber Crime Center, obtained
a search warrant for Argo’s home in DeSoto County, Mississippi. In December 2004,
Investigator Mahaffey and Chief Investigator Travis Ward executed that search warrant.
Argo arrived home during the search. Investigator Mahaffey advised Argo of his rights and
interviewed Argo. Argo’s home computer was seized incident to the search.
¶4.
Sherita Sullivan, a computer forensic examiner with the Attorney General’s Office,
conducted a forensic examination of Argo’s home computer. Sullivan found numerous
images depicting pornography, but the majority of those images apparently depicted adult
pornography. However, fourteen images allegedly depicted child pornography.
¶5.
In August 2005, a DeSoto County grand jury returned an indictment against Argo.
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That indictment charged Argo with fourteen violations of section 97-5-33(5). Argo pled “not
guilty” to all fourteen counts. On September 18, 2007, Argo went to trial before the circuit
court. For brevity’s sake, the events that transpired during Argo’s two-day trial will be
discussed in greater detail as necessary in the analysis portion of this opinion. Suffice it to
say, Argo was convicted of all fourteen counts of child exploitation. Following unsuccessful
post-trial motions, Argo appeals.
ANALYSIS
I.
¶6.
INEFFECTIVE ASSISTANCE OF COUNSEL
Under a single heading, Argo raises nine allegations centered on the concept that his
retained trial counsel, Steven Farese, Sr., was ineffective. Argo raises his ineffective
assistance of counsel claim on direct appeal. This Court has stated 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
record, assuming we affirm the conviction, the defendant may raise his
ineffective assistance of counsel claim in [a] post-conviction relief proceeding.
Graves v. State, 914 So. 2d 788, 798 (¶35) (Miss. Ct. App. 2005).
¶7.
The parties have not entered any stipulation that the record is adequate to allow this
Court to make findings without consideration of a trial judge’s findings of fact, and we
cannot conclude that the record, standing alone, affirmatively shows ineffectiveness of
constitutional dimensions. Accordingly, we decline to consider this issue on direct appeal.
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However, Argo is not precluded from raising his claims in a motion for post-conviction
relief.
II.
¶8.
DENIAL OF CIRCUMSTANTIAL-EVIDENCE INSTRUCTION
Here, Argo claims the circuit court erred when it declined to instruct the jury pursuant
to a proposed jury instruction designated as D-1.
Proposed instruction D-1 was a
circumstantial-evidence instruction which stated that “[t]he case before you is one of
circumstantial evidence. You are free to find John Argo guilty of Exploitation of Children,
you must first find him guilty not only beyond a reasonable doubt, but also to the exclusion
of every reasonable hypotheses consistent with innocence.”
¶9.
“[W]hile a party is entitled to have jury instructions submitted that represent his or her
theory of the case, an instruction that ‘incorrectly states the law, is covered fairly elsewhere
in the instructions, or is without foundation in the evidence’ need not be submitted to the
jury.” State v. McMurry, 906 So. 2d 43, 46 (¶12) (Miss. Ct. App. 2004) (quoting Agnew v.
State, 783 So. 2d 699, 702 (¶6) (Miss. 2001)). Additionally, a circumstantial-evidence
instruction is only necessary when the prosecution’s case is based entirely on circumstantial
evidence. Turner v. State, 910 So. 2d 598, 602 (¶17) (Miss. Ct. App. 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.” Id. at 603(¶17).
¶10.
As the State argues, the circuit court correctly refused Argo’s request to have the jury
instructed pursuant to proposed instruction D-1. Argo was not entitled to a circumstantialevidence instruction because there was direct evidence that he possessed child pornography.
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Images depicting child pornography were found stored in files in Argo’s home computer.
Argo personally testified that he created a folder and moved fourteen images depicting child
pornography into those folders. Although Argo attempted to explain his possession of the
images as inadvertent, the fact remains that there was direct evidence that he had possessed
the images at issue.
Accordingly, he was not entitled to a circumstantial-evidence
instruction, and the circuit court did not err when it refused proposed instruction D-1.
III.
¶11.
PROSECUTORIAL MISCONDUCT
Argo claims that the prosecution engaged in reversible misconduct when it conferred
with one of its witnesses, Investigator Ward, during the evening after the first day of trial.
However, Argo’s attorney did not raise a contemporaneous objection. Failure to make a
contemporaneous objection waives an issue for purposes of appeal. Williams v. State, 684
So. 2d 1179, 1203 (Miss. 1996). Accordingly, Argo did not properly preserve this issue for
appellate review.
IV.
¶12.
SUFFICIENCY OF THE EVIDENCE
Argo claims the evidence against him was legally insufficient to find him guilty. A
challenge to the sufficiency of the evidence requires a determination that, as to one or more
essential elements of the crime, the State’s evidence is so lacking that a fair-minded juror
could only find the defendant not guilty. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993).
In reviewing Argo’s claim, this Court is required to view all of the evidence in the light most
favorable to the State. Id.
¶13.
We find no merit to Argo’s claim under this issue. The evidence, viewed in the light
most favorable to the State, shows that: (1) Argo owned the computer; (2) Argo testified that
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he received the images of child pornography via an email; (3) Argo admitted that he created
a folder in his computer and placed the fourteen images at issue in that folder; (4) Argo
admitted that he did not report receipt of the images to law enforcement; and (5) Dr. Robert
Meacham, a physician, testified that the images depicted children engaged in sexually
explicit conduct. Accordingly, we find no merit to this issue.
¶14. THE JUDGMENT OF THE DESOTO COUNTY CIRCUIT COURT OF
CONVICTION OF FOURTEEN COUNTS OF CHILD EXPLOITATION AND
SENTENCE OF FIFTEEN YEARS FOR EACH COUNT IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES TO
RUN CONCURRENTLY FOLLOWED BY FIVE YEARS OF POST-RELEASE
SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, CARLTON
AND MAXWELL, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.
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