Opinion
Court of Appeals No. A-12373 No. 6653
07-18-2018
RUDYARD C. RAMOS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3KO-12-415 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kodiak, Steve W. Cole, Judge. Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Rudyard C. Ramos was convicted, following a jury trial, of one count of distribution of child pornography and eight counts of possession of child pornography. Ramos raises two claims of error on appeal. He argues first that the superior court erred when it denied his motion to suppress based on his claim that he was unlawfully seized by the police at his place of employment. Second, he argues that the jury instruction defining the culpable mental state of "knowingly" constituted plain error. For the reasons explained here, we find no merit to either claim.
Former AS 11.61.125(a) (pre-2010 version) and AS 11.61.127(a) (current version, as of 2010), respectively. Both the distribution and possession statutes were amended in 2010 (effective July 1, 2010). The conduct underlying Ramos's distribution charge occurred in June 2010, before the amendment. But the conduct underlying the possession charges occurred in November 2010, after the amendment.
Background facts and prior proceedings
In 2010, the Alaska State Troopers began investigating an internet protocol (IP) address in Kodiak which they suspected was being used to distribute child pornography over the internet through a global file-sharing network. After discovering thirteen images of child pornography from that IP address, the troopers referred the matter to the Kodiak Police Department.
The Kodiak police served a search warrant on the internet service provider and learned that the IP address was registered to Rudyard Ramos at 402 Marine Way, Apartment No. 2. The Kodiak police then obtained a warrant to search that apartment. However, upon executing the warrant, the police learned that there was no computer in that apartment, and that Ramos lived in Apartment No. 5, not Apartment No. 2. The police also learned that Ramos worked at the Trident Seafoods cannery, a few blocks away from the apartment building.
Two police officers then went to the Trident Seafoods cannery. After confirming that Ramos worked in the plant, the officers asked to see him. A person in the office paged Ramos, who arrived a short time later. The officers asked Ramos if he would be willing to return to his apartment because of "a problem" there. Ramos agreed to meet the police at his apartment, but he declined the ride offered by the police. Instead, Ramos walked the short distance to his apartment alone.
Ramos was met in the foyer of his apartment building by another police officer, Detective Sergeant Milton Bohac. Sergeant Bohac asked Ramos if he had an internet connection in his apartment. Ramos said that he did. Sergeant Bohac then asked whether Ramos would be willing to talk with him "about it" in private. Sergeant Bohac explained to Ramos that he did not have to speak with the police. Sergeant Bohac also confirmed that Ramos spoke English well enough to understand that he did not have to speak with the police if he did not want to. Ramos agreed to speak with Sergeant Bohac in his apartment.
During this conversation, Ramos admitted to downloading pornography, and he also admitted that some of the downloaded pictures were of girls around the age of twelve. Ramos indicated that there were images that he wanted to get rid of, but he did not know how to delete them. Ramos denied downloading any videos of children.
Based on this information, Sergeant Bohac obtained a warrant to search Ramos's apartment and to seize any evidence of child pornography. Upon executing the warrant, the police seized a laptop computer on which they found numerous saved images of child pornography. Ramos was subsequently charged with one count of distribution of child pornography and eight counts of possession of child pornography.
Prior to trial, Ramos moved to suppress his statements to Sergeant Bohac and the evidence of child pornography seized from his apartment. Ramos argued that he had been unlawfully detained by the police at the cannery and that all the evidence obtained as a result of the detention therefore had to be suppressed. The State opposed, arguing that no seizure had occurred at the cannery.
Following an evidentiary hearing in which the three officers involved in the investigation testified, the trial court denied Ramos's motion to suppress. A jury later convicted Ramos of all charges.
Ramos's claim that the trial court erred in denying his motion to suppress
On appeal, Ramos renews his claim that he was unlawfully seized by the police when he was summoned to the manager's office at the cannery at the officers' request.
A person is seized under the Fourth Amendment only when an officer, "by means of physical force or show of authority, has in some way restrained the liberty of a citizen." A show of authority amounts to a seizure if "a reasonable person, in view of the objective facts surrounding the incident, would believe that he [or she] is not free to leave."
Waring v. State, 670 P.2d 357, 364 (Alaska 1983) (noting that the inherent pressures associated with being confronted by a police officer can ripen into a seizure "only if the officer added to those inherent pressures by engaging in[ ]conduct which a reasonable man would view as threatening or offensive even if coming from another private citizen") (quoting 3 Wayne R. LaFave, Search and Seizure § 9.2, at 53, 54 (1st ed. 1978)).
Romo v. Anchorage, 697 P.2d 1065, 1068 (Alaska App. 1985).
On appeal, Ramos argues that the police engaged in a show of authority "[b]y ordering Ramos brought to the manager's office." But there is nothing in the record to suggest that Ramos was told that he was being summoned to the office at the request of the police. There is also nothing in the record to suggest that the police engaged in conduct that could reasonably be viewed as threatening or offensive or that would have made a reasonable person feel that they were not free to decline the request to accompany the police to the apartment. Indeed, although Ramos agreed to go to the apartment, he declined the police offer to drive him in a police car to the apartment. Instead, he left the police at the cannery and walked to his apartment alone. Given this record, we agree with the superior court that no seizure occurred at the cannery.
Because we conclude that Ramos was not seized at the cannery, we do not address the State's alternative argument that any taint from that seizure would have been substantially attenuated by the fact that the police allowed Ramos to walk alone the short distance to his apartment. Cf. McBath v. State, 108 P.3d 241, 248 (Alaska App. 2005) (discussing factors used in taint analysis).
Ramos also argues that, even if no seizure occurred at the cannery, the trial court nevertheless erred when it concluded that Ramos voluntarily agreed to talk to the police at the cannery and voluntarily agreed to meet the police at his home. Ramos points out that the trial court based its voluntariness analysis on its mistaken belief that the police had expressly told Ramos that "he had a computer problem and they needed to look at the computers at his residence." Ramos is correct that the police did not tell Ramos that they were concerned about a "computer problem." Instead, the record indicates that the officers referred only vaguely to "a problem" or "an issue" with his apartment.
On appeal, Ramos asserts that the vague reason given by the police at the cannery for wanting to talk to him misled him into believing there was "a physical problem with the condition of the apartment serious enough to result in injury to person or property." But Ramos offered no evidence of his state of mind in the trial court proceedings. Nor do we agree with Ramos that the vague reference to a "problem" would necessarily lead a person to assume that there was such an emergency.
We note that our ruling on this issue might be different had the police used a deliberate ruse to unfairly gain Ramos's cooperation. For example, if the police had actively pretended that there was an emergency situation in Ramos's apartment that could result in injury to persons or property (such as a gas leak), then we would likely question the voluntariness of Ramos's subsequent actions. But that was not the situation here. Instead, the record shows that the police did not provide any details about what "the problem" might be, and Ramos did not request any details.
See Nix v. State, 621 P.2d 1347, 1349 (Alaska 1981) (citing the example of a police officer who gains entry into a home by pretending to be an employee of a gas company acting on the report of a gas leak as an example of a deceptive police tactic that will not be tolerated).
The record also shows that Ramos did not make any incriminating statements to the officers at the cannery. Instead, his incriminating statements occurred later, after Sergeant Bohac specifically told Ramos that he did not need to speak to the police.
Ramos's claim that the jury was erroneously instructed on the definition of the "knowingly" culpable mental state
Ramos argues that the trial court incorrectly instructed the jury on the definition of "knowingly." Because Ramos did not object to this instruction at trial, his claim is reviewable only for plain error. To establish plain error in this context, Ramos must show that the instruction "create[d] a high likelihood that the jury followed an erroneous theory[,] resulting in a miscarriage of justice." We conclude that Ramos has not met this burden.
Dobberke v. State, 40 P.3d 1244, 1247 (Alaska App. 2002).
Ramos was charged with distribution and possession of child pornography. Each of these offenses required the State to prove that Ramos knowingly distributed or knowingly possessed any material that visually depicts "conduct described in AS 11.41.455(a), knowing that the production of the material involved the use of a child under 18 years of age who engaged in the conduct." The trial court instructed the jury on the statutory definition of "knowingly":
See former AS 11.61.125(a) (pre-2010 version) and AS 11.61.127(a) (current version, as of 2010), respectively.
A person acts "knowingly" with respect to conduct or to a circumstance described by a provision of law defining an offense when the person is aware that the conduct is of that nature or that the circumstance exists. When knowledge of the existence of a particular fact is an element of the offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless the person actually believes it does not exist.
See AS 11.81.900(a)(2).
According to Ramos, the second sentence of this instruction could have misled the jury into believing that Ramos could be found guilty if he was "aware of a substantial probability" that he had distributed, and that he presently possessed, child pornography. But Ramos's parsing of this jury instruction conflates two separate aspects of the charges against him.
Under our criminal code, the culpable mental state of "knowingly" applies both to a person's conduct and to the circumstances surrounding or attending that conduct. When "knowingly" is applied to conduct, it means that a person acted with awareness of the nature of their conduct. When "knowingly" is applied to a circumstance, it means that a person was either aware that the circumstance existed, or was aware of a "substantial probability" that the circumstance existed (unless the person actually believed that the circumstance did not, in fact, exist).
Id.; Nelson v. State, 927 P.2d 331, 333 (Alaska App. 1996) (recognizing that elements of criminal offenses fall into one of three categories — conduct, results, and circumstances).
Moffitt v. State, 207 P.3d 593, 600 (Alaska App. 2009).
Id.
As this Court explained in Ferrick v. State, the offense of possessing child pornography, AS 11.61.127(a), requires the State to prove both (1) that the defendant engaged in conduct — i.e., knowingly distributed or knowingly possessed or accessed on a computer visual materials depicting any of the types of conduct described in AS 11.41.455(a), and (2) that the defendant acted knowingly with regard to the factual circumstance — i.e., that the visual materials in his or her possession were produced using a child under eighteen years old.
Ferrick v. State, 217 P.3d 418, 420-21 (Alaska App. 2009).
The second sentence of the statutory definition of "knowingly" applies to this circumstance: the government must prove that the defendant knew, or was aware of a substantial probability, that the visual materials in his possession were produced using a child under the age of eighteen.
(We acknowledge that the language of AS 11.61.127(a) (possession of child pornography) is not identical to the language of former AS 11.61.125(a) (distribution of child pornography), but we conclude that any differences in the wording of the statutes have no legal consequences in the context of this case, and this same interpretation applies to the offense of distributing of child pornography.)
In the present case, Ramos conceded that he knowingly downloaded batches of pornographic images. His defense was that he did not know that many of these pornographic images were produced using children under eighteen years old. Ferrick holds that this disputed point is a "circumstance." Thus, the second sentence of the statutory definition of "knowingly" applies to that circumstance.
Ramos acknowledges this law in his reply brief, but he argues that the jury may nevertheless have been misled by the jury instruction on "knowingly" into thinking that the same "substantial probability" standard also applied to his conduct — i.e., whether he acted knowingly with regard to his possession and distribution of the child pornographic images. But given the way Ramos's case was litigated and argued to the jury, there is little possibility that the jury was misled in the manner Ramos suggests. Accordingly, we do not find that this instruction rose to the level of plain error.
Mattox v. State, Dep't of Corrections, 397 P.3d 250, 254 (Alaska 2017) (internal quotation marks omitted). --------
Conclusion
The judgment of the superior court is AFFIRMED.