Opinion
CIVIL ACTION No. 02-3140-GTV
December 23, 2003
MEMORANDUM AND ORDER
Petitioner David John Zabrinas, a prisoner in the Lansing Correctional Facility in Lansing, Kansas, has filed a petition pro se for writ of habeas corpus (Doc. 1). Petitioner was convicted of one charge of sexual exploitation of a child in state court, and seeks a writ pursuant to 28 U.S.C. § 2254 on five grounds. The court has reviewed Petitioner's arguments and the record, and determines that habeas relief is not warranted in this case. For the following reasons, the petition is denied.
I. Procedural History
On April 4, 1996, Petitioner was charged in the Saline County District Court of Kansas with one count of sexual exploitation of a child in violation of Kan. Stat. Ann. § 21-3516. Petitioner was tried and convicted by a jury of sexual exploitation of a child on January 23, 1998. After being certified as a persistent sexual offender under Kan. Stat. Ann. § 21-4704, Petitioner was sentenced to a term of 256 months in the Department of Corrections. Petitioner appealed his convictions to the Kansas Supreme Court. On June 1, 2001, the state supreme court affirmed his conviction, but vacated his sentence. Petitioner was resentenced to a term of 110 months in the Department of Corrections. On May 20, 2002, Petitioner filed the instant request for federal habeas relief pursuant to 28 U.S.C. § 2254.
II. Standard of Review
Because Petitioner's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, the court's review of Petitioner's claims is governed by the provisions of the Act.Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999). Under the Act, a court may only grant a writ when one of two circumstances is present: (1) the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal kw, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1); or (2) the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," Id. § 2254(d)(2). The court presumes state court factual findings to be correct absent clear and convincing evidence to the contrary. Id. § 2254(e)(1).
A state court decision is contrary to clearly established law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an unreasonable application of clearly established federal kw "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.
This court's review of state court decisions is limited; the Supreme Court has admonished that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). In a habeas action, a federal court may not review a state court decision for errors of state law. Id. (citations omitted).
III. Factual Background
From late 1995 until October 1996, Petitioner worked as a manager at a restaurant in Salina, Kansas. Petitioner fulfilled part of his managerial tasks on a computer in the restaurant's back office, where he was able to access the internet. During his employment, Petitioner showed several employees images of women in sexually explicit positions. In early October of 1996, the general manager at the restaurant caught Petitioner downloading sexually explicit images from the internet. Shortly after this incident, the general manager fired Petitioner from the restaurant for abusing his computer privileges.
During the same period of time, the F.B.I, was observing Petitioner's online activities as a part of an internet project called Innocent Images. F.B.I. agents would carefully watch America Online "chat rooms" used to trade in child pornography. On March 20, 1997, F.B.I. agents executed a search warrant on Petitioner's home, looking for evidence of child pornography. The agents recovered several computer disks that contained sexually explicit images of children under the age of 16. At the time of the search, Petitioner was not in his home. Later that day, however, F.B.I. agents approached Petitioner at his residence, explaining the reasons for their investigation and informing Petitioner of the items they had seized from his home. The F.B.I, agents interviewed Petitioner at his home, and Petitioner made several admissions about his involvement with child pornography on the internet. Based upon this evidence, Petitioner was charged with one count of sexual exploitation of a child pursuant to Kan. Stat. Ann. § 21-3516.
IV. Petitioner's Grounds for Relief
Petitioner asserts that he is entitled to habeas relief on five grounds: (1) K.S.A. § 21-3516 is unconstitutional because it is facially overbroad and lacks a scienter requirement; (2) the trial court erred in failing to suppress Petitioner's statements made to law enforcement in violation of his Fifth and Fourteenth Amendment rights; (3) the trial court erred in failing to excuse a juror for cause, forcing Petitioner to exhaust one of his peremptory strikes in violation of Petitioner's Fourteenth Amendment due process rights; (4) the trial court erred in failing to instruct the jury that it must unanimously agree on a particular act to support Petitioner's conviction in violation of his Sixth and Fourteenth Amendment rights; and (5) the State's evidence was insufficient to support his conviction.
A. Constitutional Challenges to K.S.A. § 21-3516
Petitioner argues that Kan. Stat. Ana § 21-3516 is unconstitutional because: (1) the statute is overbroad in violation of the First Amendment; and (2) the statute lacks a scienter requirement.
i. Overbreadth Challenge
Petitioner first maintains that Kan. Stat. Ana § 21-3516 is unconstitutionally overbroad in violation of the First Amendment. The applicable version of Kan. Stat. Ann. § 21-3516 states, in part:
(a) Sexual exploitation of a child is:
(2) possessing any film, photograph, negative, slide, book, magazine or other printed or visual medium or any audio tape recording or any photocopy, video tape, video laser disk, computer hardware, software, floppy disk or any other computer related equipment or computer generated image that contains or incorporates in any manner any film, photograph, negative, photocopy, video tape or video laser disk in which a visual depiction of a child under 16 years of age is shown or heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender, the child or another;
. . .
(b) As used in this section:
(1) "Sexually explicit conduct" means actual or simulated: Exhibition in the nude; sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex; masturbation; sado-masochistic abuse for the purpose of sexual stimulation; or lewd exhibition of the genitals, female breast or pubic area of any person.
. . .
(4) "Nude" means any state of undress in which the human genitals, pubic region, buttock or female breast, at a point below the top of the areola, is less than completely and opaquely covered.
Kan. Stat. Ann. § 21-3516 (1997).
In 1998, the Kansas legislature amended Kan. Stat. Ann. § 21-3516 to apply to materials depicting children under the age of 18.
Federal courts "lack jurisdiction authoritatively to construe state legislation." Gooding v. Wilson, 405 U.S. 518, 520 (1972) (citing United States v. Thirty-seven Photographs, 402 U.S. 363, 369 (1971)). "In evaluating the facial constitutionality of a state statute, a federal court is bound by the constructions placed on that statute by state court decisions." Ferguson v. Estelle, 718 F.2d 730, 733 n. 5 (5th Cir. 1983) (citing New York v. Ferber, 458 U.S. 747 (1982); Grayned v. City of Rockford, 408 U.S. 104 (1972)). This court must not conduct its own independent evaluation of K.S.A. 21-3516, but must analyze the state court decisions interpreting that statute in accordance with the mandates of 28 U.S.C. § 2254(d). See Staley v. Jones, 239 F.3d 769, 788 (6th Cir. 2001). In this case, our charge is to determine whether the Kansas Supreme Court's application of the overbreadth doctrine to K.S.A. 21-3516 "was contrary to, or involved an unreasonably application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The court concludes that it was not unreasonable for the Kansas Supreme Court to reject Petitioner's overbreadth challenge.
The United States Supreme Court has characterized the overbreadth doctrine as "strong medicine," utilized "sparingly and only as a last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). "[W]here a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only `real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.'" Osborne v. Ohio, 495 U.S. 103, 112 (1990) (quoting Broadrick, 413 U.S at 615). "Thus, even if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the `remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct. . . .'"Ferber, 458 U.S. at 770 n. 25 (citation omitted).
"The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others." Massachusetts v. Oakes, 491 U.S. 576, 581 (1989); see Osborne, 495 U.S. at 112 n. 8 (1990) (stating that "we permit defendants to challenge statutes on overbreadth grounds, regardless of whether the individual defendant's conduct is constitutionally protected"). As a preliminary matter, the Kansas Supreme Court ruled that Petitioner had standing to attack the constitutionality of Kan. Stat. Ann. § 21-3516 on the basis of the overbreadth doctrine, even though Petitioner did not argue that the statute was overbroad as applied to the facts of his conviction. The court determines that this ruling was not contrary to established Supreme Court precedent.
In support of his argument, Petitioner first asserts that Kan. Stat. Ann. § 21-3516 allows for the prosecution of individuals in possession of constitutionally protected depictions of nudity. Petitioner focuses his overbreadth argument on the definition of "sexually explicit conduct" contained in the statute; in particular, the section stating that "sexually explicit conduct" includes actual or simulated "Exhibition in the nude." Based on this language, Petitioner claims that mere possession of a photograph portraying a child in a state of nudity is enough to be prosecuted under the statute. See Ferber, 458 U.S. at 766 n. 18 (stating that "nudity, without more is protected expression"). For example, Petitioner hypothesizes that innocent images in a library book could be the basis of a charge if a prosecutor proved that the possessor derived sexual enjoyment from them. Petitioner also states that the statute could be unreasonably applied to the possession of a picture of a nude child in a bathtub or a girl sitting on a table if it could be proven that the possessor derived sexual enjoyment from the images.
In interpreting Kan. Stat. Ann. § 21-3516, the Kansas Supreme Court first cited the United States Supreme Court's decision in New York v. Ferber for the proposition that "the States are entitled to greater leeway in the regulation of pornographic depictions of children."State v. Zabrinas, 24 P.3d 77, 83 (Kan. 2001) (citingFerber, 458 U.S. at 756). The Kansas Supreme Court's opinion quoted extensively from the Ferber decision, which outlined several reasons for the State's compelling interest in protecting children from sexual exploitation. See id. at 83-84 (quoting Ferber, 458 U.S. at 756-63). The Kansas Supreme Court next discussed the legislative history of Kan. Stat. Ann. § 21-3516, including the amendment adding the language "Exhibition in the nude." Id. at 84. The court concluded that the legislative history indicated that the statute's purpose was clearly to criminalize child pornography. Id.
The Kansas Supreme Court then analyzed the meaning of "[e]xhibition in the nude," the basis of Petitioner's overbreadth challenge. Rather than focusing on the clause in isolation, the court addressed Petitioner's challenge in the context of the entire language in the statute. The court stated, in relevant part:
The meaning of "exhibition in the nude" applies in the context of a child under 16 years of age engaging in sexually explicit conduct. A child or infant in a harmless moment could never be considered to be so engaged. It is clearly necessary that the child must have some understanding or at least be of an age where there could be some knowledge that they are exhibiting their nude bodies in a sexually explicit manner.
Additionally, the statute expressly requires that the picture or other visual depiction be possessed with the intent "to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender." K.S.A. 21-3516(a)(2). To satisfy this requirement, a picture or video must be more than an innocent display of nudity. No reasonable prosecutor could charge and no reasonable jury could find anyone guilty of satisfying sexual desires by viewing innocent pictures. We clearly hold that such photographs were not meant to come within the purview of those which could be used "to arouse or satisfy the sexual desires or appeal to the prurient interest" of individuals.
. . .
We construe the language to apply only to those situations when a child has been employed, used, persuaded, induced, enticed, or coerced into the nude display of the statutorily defined areas while engaging in sexually explicit conduct, also as statutorily defined, for purposes of appealing to the sexual desires or the prurient interest of the offender, the child, or another. The statute prohibits anyone from possessing a visual depiction of a child engaged in this type of conduct. The phrase "exhibition in the nude" does not make the statute unconstitutionally overbroad.Id. at 85.
Again, the Kansas Supreme Court's construction of Kan. Stat. Ann. § 21-3516 is binding on this court. Based on the Kansas Supreme Court's interpretation of Kan. Stat. Ann. § 21-3516 and the court's ruling that the language "exhibition in the nude" does not violate the overbreadth doctrine, this court concludes that Petitioner's challenge must be denied. Contrary to Petitioner's arguments, the Kansas Supreme Court's interpretation of Kan. Stat. Ann. § 21-3516 avoids penalizing individuals for viewing harmless photographs of naked children; the court limited the statute's application to only those depictions which constitute child pornography. See Ferber, 458 U.S. at 764 ("As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed."). Second, the overbreadth doctrine requires that the impermissible applications be substantial, not merely "a tiny fraction of the materials within the statute's reach." Id. at 773. Petitioner's arguments fail to satisfy this standard. The court concludes that the Kansas Supreme Court's decision denying Petitioner's overbreadth challenge was not contrary to, or involved an unreasonable application of, clearly established federal law.
ii. Lack of a Scienter Requirement
Petitioner also maintains that Kan. Stat. Ann. § 21-3516 is unconstitutional because it lacks a scienter requirement as to the age of the children depicted, thus subjecting individuals to a criminal charge even if they are not cognizant that the person portrayed in the image was under 16. The court concludes that Petitioner's procedural default precludes federal habeas review of this issue. Furthermore, for the reasons stated below, the court determines that Petitioner would not suffer any prejudice, nor would a miscarriage of justice result from this decision.
"In order to exhaust his state remedies, a federal habeas petitioner must have first fairly presented the substance of his federal habeas claim to state courts." Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002). "It is well established that federal habeas review of claims defaulted in state court pursuant to an independent and adequate state procedural rule is barred `unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.'"Sherrill v. Hargett, 184 F.3d 1172, 1174 (10th Cir. 1999) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). "A state procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision." English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citing Klein v. Neal, 45 F.3d 1395, 1398-99 (10th Cir. 1995)); see also Steele v. Young, 11 F.3d 1518, 1521 (10th Cir. 1993) (stating that a ground is independent if it is the exclusive basis for the state court's holding). "As a general rule, . . . in order to be adequate, a state rule of procedural default must be applied even handedly in the vast majority of cases." Id. (citing Maes v. Thomas, 46 F.3d 979, 985-86 (10th Cir. 1995)).
The Kansas Supreme Court ruled that it would refuse to review Petitioner's scienter argument because Pettioner failed to present this issue to the trial court. See Zabrinas, 24 P.3d at 82 (citingState v. Smith, 993 P.2d 1213 (1999), and State v. Bell, 899 P.2d 1000 (1995), for the proposition that "[a]n issue not presented to the trial court will not be considered for the first time on appeal" unless consideration of the question is "necessary to serve the ends of justice or prevent denial of fundamental rights"). Petitioner's failure to raise this issue at trial was the primary basis for Kansas Supreme Court's refusal to reach the merits of Petitioner's challenge. Furthermore, other decisions from this district recognize that the Kansas contemporaneous objection rule is firmly established and regularly followed by Kansas state courts. See Saenz v. State, No. 02-3119-CM, 2003 WL 22102140, at *5 (D. Kan. July 16, 2003); Loggins v. Hannigan, No. 99-3102, 2001 U.S. Dist. LEXIS 25259, at *14-16 (D. Kan. Sept. 11, 2001); Hunt v. Lee, 19 F. Supp.2d 1212, 1214-15 (D. Kan. 1998). This court concludes that the Kansas Supreme Court's decision was based upon an independent and adequate state procedural rule.
The court further determines that Petitioner would not suffer any prejudice, nor would a miscarriage of justice result from this ruling. The court observes that although the Kansas Supreme Court based its decision on the contemporaneous objection rule, the state supreme court briefly noted that: (1) even though Petitioner never requested a specific scienter instruction, the jury was properly instructed on Petitioner's required state of mind; and (2) the nature of the materials at issue were clearly pornographic. First, the jury was instructed that "[i]n order for the defendant to be guilty of the crime charged, the State must prove that the defendant's conduct was intentional. Intentional means willful and purposeful and not accidental." The jury, therefore, was required to find a mens rea element. Second, the Kansas Supreme Court stated that "[t]here is no reviewable issue that the fact the children involved were substantially under the age of 16 years was not clearly and overwhelmingly proven and would be known to any viewer." Accordingly, Petitioner's challenge is denied.
B. Failure to Suppress Statements Made to Law Enforcement
Petitioner next argues that the trial court erred by failing to suppress statements that he made to law enforcement officers during the execution of a search warrant at Petitioner's home. Petitioner maintains that these statements were obtained in violation of his Fifth Amendment right against self-incrimination and in violation of his Fourteenth Amendment due process rights.In the instant case, the Kansas Supreme Court again held that Petitioner did not properly preserve this issue for appeal because he failed to object when the State offered the evidence at trial. See Zabrinas, 24 P.3d at 85 (citing State v. Milo, 815 P.2d 519, 523 (Kan. 1991), for the proposition that "[w]hen either a motion in limine or a motion to suppress is denied, the moving party must object to the evidence at trial to preserve the issue on appeal"). After reviewing the record, the court concludes that Petitioner's failure to preserve this issue for appeal establishes a procedural default for the purpose of seeking federal habeas corpus relief. First, Petitioner's failure to comply with the contemporaneous objection rule was the exclusive basis for the Kansas Supreme Court's refusal to reach the merits of Petitioner's claim. Second, as stated earlier in this opinion, the contemporaneous objection rule is firmly established and regularly followed by Kansas state courts. The court therefore determines that the Kansas Supreme Court's denial of Petitioner's claim rested on an independent and adequate state procedural rule. Petitioner has not shown that any prejudice or that a miscarriage of justice would result from this ruling. In fact, the Kansas Supreme Court's opinion noted, and the record reflects, that Petitioner used the statements at issue to support his own defense at trial. Accordingly, Petitioner's challenge is denied.
C. Failure to Excuse a Juror for Cause
Petitioner next claims that the trial court wrongfully deprived him of his full allotment of peremptory challenges in violation of his Fourteenth Amendment due process rights. The court concludes that Petitioner's argument is without merit.The Kansas Supreme Court's opinion outlines the factual basis for Petitioner's challenge:
During voir dire one of the venirepersons was asked if she could put aside any prejudice she might have and give the defendant a fair trial. She responded, "I have very strong feelings, but I will try to be fair." In response to an additional question, she explained there were some molestations in her family that she had strong feelings about. When asked, "[W]ould you want yourself as a juror on a case like this?" she responded, "Probably not." The prosecutor finally asked if she would put aside her feelings, and she said, "I would try."Id. at 86. The trial court denied Petitioner's motion to remove the juror for cause, requiring the Petitioner to use one of his peremptory challenges to remove the juror. Petitioner claims that this denied him his full complement of peremptory strikes.
In United States v. Martinez-Salazar, the United States Supreme Court ruled that "`peremptory challenges [to prospective jurors] are not of constitutional dimension,' rather, they are one means to achieve the constitutionally required end of an impartial jury." 528 U.S. 304, 307 (2000) (quoting Ross v. Oklahoma, 487 U.S. 81, 88 (1988)). In Martinez-Salazar, the court focused on "the erroneous refusal of a trial judge to dismiss a potential juror for cause, followed by the defendant's exercise of a peremptory challenge to remove that juror." Id. The court held that "if the defendant elects to cure such an error by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right." Id.
First, Petitioner, like the defendant in Martinez-Salazar, had the option of letting the allegedly biased juror sit on the jury and then pursue a Sixth Amendment challenge on appeal. See id. at 315. Instead, Petitioner "used the challenge in line with a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury." Id. at 316. Second, Petitioner does not argue that the members of the final jury were biased or prejudiced against him. See id. (noting that if the defendant had maintained that the trial court's ruling resulted "in the seating of [a] juror who should have been dismiss[ed] for cause," reversal may have been required). Accordingly, the court concludes that Petitioner's due process rights were not violated.
D. Failure to Give a Proper Jury Instruction
Petitioner next argues that the trial court violated his Sixth and Fourteenth Amendment rights by failing to instruct the jury that it must unanimously agree on a particular act to support his conviction. Petitioner asserts that this is a multiple acts case, where "several acts are alleged and any one of them could constitute the crime charged," and therefore, "the jury must be unanimous as to which act . . . constitutes the crime." See State v. Timley, 875 P.2d 242, 246 (Kan. 1994) (citation omitted). Specifically, Petitioner contends that the State presented evidence that Petitioner possessed several different pictures of children in sexually explicit circumstances over a period of time, but the trial court did not instruct the jury to unanimously agree which act supported criminal liability. Petitioner states that the jurors may have agreed that he was guilty of sexual exploitation of a child, but they could have disagreed about which act subjected him to criminal liability.
The State characterizes Petitioner's case as an alternative means case, "where a single offense may be committed in more than one way," requiring "jury unanimity as to the guilt for the single crime charged." However, [u]nanimity is not required, . . . as to the means by which the crime was committed so long as substantial evidence supports each alternative means." Id. The State's theory at trial was that continued possession of child pornography is ongoing in nature, a continuing course of conduct involving repeated acts. The Kansas Supreme Court agreed with the State, holding that Petitioner's case was not a multiple acts situation. The state supreme court ruled that the case "is more properly considered as a continuing conduct case where there is but a single count or charge, with all evidence used to established the requisite intent and knowledge to prove a violation of 21-3516(a)(2)." The court further noted that "there was never any evidence of separate intent as to each of the images that [Petitioner] possessed. This is consistent with proof of continuing conduct and one charge."
In Maes v. Thomas, the Tenth Circuit outlined a petitioner's burden of proof when challenging a jury instruction:
In a habeas proceeding attacking a state court judgment based on an erroneous jury instruction, a petitioner has a great burden. A state conviction may only be set aside in a habeas proceeding on the basis of erroneous jury instructions when the errors had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair trial. "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." The question in this proceeding is not whether the instruction is "undesirable, erroneous, or even "`universally condemned,'" but whether the instruction so infected the trial that the resulting conviction violates due process. "An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." The degree of prejudice from the instruction error must be evaluated in the context of the events at the trial.46 F.3d 979, 984 (10th Cir. 1995) (internal citations omitted).
Initially, the court observes that several federal courts have determined that absent a specific request, "`a general instruction on the requirement of unanimity suffices to instruct the jury that they must be unanimous on whatever specifications they find to be the predicate of the guilty verdict.'" United States v. Bedonie, 913 F.2d 782, 792 (10th Cir. 1990) (citations omitted). In Petitioner's case, the trial court instructed the jury that "[u]nder the law, [their] verdict must be unanimous and it must be founded entirely upon the evidence admitted and the law as given in these instructions." Petitioner's counsel did not object to this instruction, nor request that a specific verdict form be used to require the jury to state which particular image(s) they based their verdict upon. See Boyd v. Minnesota, 274 F.3d 497, 501 (8th Cir. 2001) ("`Failure to propose specific jury instructions or to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal.'") (citation omitted).
Second, the court notes that Petitioner's argument has been rejected by other courts. In United States v. Nelson, two defendants argued "that the district court erred by not using a special verdict form requiring the jury to itemize which images it determined to be child pornography." 38 Fed. Appx. 386, 389 (9th Cir. 2002). The Ninth Circuit rejected the argument, ruling that "jurors are not normally required to say what evidence they credited to reach a verdict." Id. The court further stated that "[n]othing in law or common courtroom practice required the court to insist that the jury say which particular picture or pictures they found to be child pornography." Id. See also People v. Denava, No. 185460, 1998 WL 1992967, at *3 (Mich.Ct.App. Feb. 3, 1998) (ruling in a child pornography case that a general unanimity instruction was sufficient where multiple acts were not alleged and there was no indication of jury confusion or disagreement concerning the factual basis of defendant's guilt); State v. Huckins, 836 P.2d 230, 235 (Wash.Ct.App. 1992) (holding that a unanimity instruction was not necessary and that the prosecution was not required to elect specific depictions of pornography contained in two publications because the only purpose of the pictures was for sexual stimulation).
Petitioner has not shown that the trial court's failure to instruct the jury to unanimously agree on the particular act they relied on in reaching their verdict so infected the entire trial that the resulting conviction violated due process. The court concludes that the Kansas Supreme Court's ruling was not contrary to, or involved an unreasonable application of clearly established Supreme Court authority. See Sullivan v. Bruce, 44 Fed. Appx. 913, 915 (10th Cir. 2002) (citingSchad v. Arizona, 501 U.S. 624, 631-32 (1991) ("It is settled law that when a single crime can be committed by various means, the jury need not unanimously agree on which means were used so long as they agree that the crime was committed.")); Hoover v. Johnson, 193 F.3d 366, 369-370 (5th Cir. 1999) (stating that the United States Supreme Court "has not . . . explicated a constitutional requirement that state-court juries must agree to a single act that satisfies the overt act element of the relevant crime, and then identify that act in a special ballot"). Accordingly, Petitioner's challenge is denied.
E. Insufficient Evidence for Conviction
Finally, Petitioner claims that the evidence produced at trial was insufficient to support a conviction. In reviewing the sufficiency of the evidence presented against a state prisoner, the court must inquire "`whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Romano v. Gibson, 239 F.3d 1156, 1164 (10th Cir. 2001) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The court "must `accept the jury's resolution of the evidence as long as it is within the bounds of reason.'" Kelly v. Roberts, 998 F.2d 802, 808 (10th Cir. 1993) (citations omitted).
The Tenth Circuit has not resolved whether a challenge to the sufficiency of the evidence presents a question of law or feet.Fields v. Gibson, 277 F.3d 1203, 1220 (10th Cir. 2002). If the question is a legal one, it is examined under the "contrary to" or "unreasonable application of . . . federal law" standard of 28 U.S.C. § 2254(d)(1). Id. If it is a factual one, it is examined under the "unreasonable determination of the facts" § 2254(d)(2) standard. Id. at 1220-21. It is unnecessary to decide which standard applies here, as the court determines that Petitioner's claim is meritless under either standard. See id. at 1221.
Petitioner maintains that K.S.A. 21-3516 required the State to prove that he possessed disks with images that show a "real child" engaging in sexually explicit conduct. Petitioner claims that the only evidence that the State produced to show that the children depicted in the photographs were "real" was the testimony of Nurse Peterson, who testified that the ages of all the children in the pictures were between 5 to 14 years old. Petitioner asserts that despite the nurse's testimony regarding the ages of the children in the photographs, the State did not prove beyond a reasonable doubt that "the images were in fact digital copies of negatives of real (living) children, or original files of real children taken by a person with a digital camera. . . ."
The court has reviewed the opinion of the Kansas Supreme Court and determines that it applied the correct standard in reviewing the evidence presented at trial. The state supreme court concluded that there was sufficient evidence before the jury to support the conviction. Specifically, the court stated that "[i]t is clear from the record that all the images and photographs depict children, and sometimes adult males with children, engaged in sexually explicit conduct." Zabrinas, 24 P.3d at 80. Moreover, the trial court instructed the jury that in order to establish the charge of sexual exploitation of a child, the State had to prove "[t]hat the real child was then a child under the age of 16 years." (emphasis added). It was for the jury to determine the weight of the evidence and the credit to be given the witnesses. Viewing the evidence in the light most favorable to the prosecution, the court concludes that a rational trier of fact could find that Petitioner violated K.S.A. 21-3516. Petitioner's conviction was neither "contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d)(1), nor was it "based on an unreasonable determination of the facts in light of the evidence presented at trial,"Id. § 2254(d)(2). Relief is denied as to this issue.
IT IS, THEREFORE, BY THE COURT ORDERED that the Petition for Writ of Habeas Corpus (Doc. 1) is denied.
The case is closed.
Copies of this order shall be transmitted to pro se Petitioner and to counsel of record.
IT IS SO ORDERED.