Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Cerna

Court of Appeals of Missouri, Eastern District, First Division

June 27, 2017

STATE OF MISSOURI, Respondent,
v.
DAVID E. CERNA, Appellant.

         Appeal from the Circuit Court, St. Louis County 14SL-CR07432-01 Honorable Gloria Clark Reno

          Lisa P Page, Judge.

         David E. Cerna ("Defendant") appeals his conviction of one count of sexual exploitation of a minor and one count of invasion of privacy in the second degree. We affirm.

         BACKGROUND

         In the summer of 2014, Defendant-a police officer for Chesterfield-came under investigation for posting pornographic videos on his websites "veryhot***.com" and "Restroom ***" (which hosted a large number of hidden-camera videos recorded in men's restrooms). The investigating officers executed a search warrant on Defendant's home and discovered hundreds of illicit videos produced by Defendant. These included the hidden-camera videos recorded in a gas station restroom and in the Chesterfield police station locker room, as well as other pornographic videos produced both in Defendant's home and elsewhere. The three videos at issue in this appeal show Defendant, while under the guise of an investigative search incident to detention, exposing and recording the genitals of teenage males without their consent.

          In the summer of 2013, Defendant detained and searched Z.C., a nineteen-year-old male. The video, approximately two-and-a-half minutes long and titled "All in a days [sic] work![, ]" shows Defendant pulling Z.C.'s waistband outward multiple times, exposing Z.C.'s genitals to the camera. After searching Z.C.'s car, Defendant released Z.C.

         On December 25, 2013, Defendant arrested eighteen-year-old R.W. At the police station, Defendant "aggressively" searched R.W. twice-once before he interviewed R.W. and the second just before R.W.'s release. The video, approximately 78 seconds long (and in slow motion), depicts Defendant pulling R.W.'s pants and underwear outward, exposing his genitals.

         On January 21, 2014, Defendant assisted with a traffic stop of sixteen-year-old L.P. While the other officer searched the vehicle, Defendant "really frisked" L.P. The video depicts Defendant pulling the waistband of L.P.'s shorts and underwear outward, shining a flashlight down the front of L.P.'s pants, and exposing L.P.'s genitals. The video shows L.P.'s penis for about ten seconds, Defendant is then heard saying "you know where people can hide stuff, " and L.P's genitals are then re-exposed to the camera for five more seconds. The video does not depict any other part of L.P.'s body. Superimposed in the corner of the video is L.P.'s driver's license photo.

         Defendant was charged with one count of the class B felony of sexual exploitation of a minor, in violation of Section 573.023, and one count of the class D felony of second degree invasion of privacy, in violation of Section 565.253.[1] Defendant waived his right to a jury trial, and the parties submitted the case to the trial court upon stipulated evidence for the trial court to make factual findings. Defendant was found guilty of both counts, was given a ten-year suspended execution of sentence and placed on five years' probation. This appeal follows.[2]

         DISCUSSION

         Defendant submits five points on appeal, contending: (I and II) the evidence is insufficient to show that Defendant knew L.P.'s age or that the video was a "lascivious" exhibition of L.P.'s genitals; (III) as a law-enforcement officer, Defendant was protected from prosecution; (IV) the charging document failed to name a minor victim for the sexual exploitation of a minor charge; and (V) the statute supporting the conviction for sexual exploitation of a minor is unconstitutionally overbroad and void for vagueness.

         Standard of Review

         In reviewing the sufficiency of the evidence in a bench-tried criminal case, the same standard is applied as in a jury tried case. State v. Niederstadt 66 S.W.3d 12, 13 (Mo. banc 2002). We will affirm the trial court's judgment if the State has introduced sufficient evidence from which a reasonable fact-finder could have found each element of the crime beyond a reasonable doubt. State v. Wilder. 457 S.W.3d 354, 356 (Mo. App. S.D. 2015). This court does not reweigh the evidence but, rather, considers it in the light most favorable to the judgment and grants the State all reasonable inferences. Id. Contrary evidence and inferences are disregarded. Id. When the facts relevant to an issue are contested, the reviewing court defers to the trial court's assessment of the evidence; it is only when the evidence is uncontested that no deference is given to the trial court's findings. Johnson v. State, 366 S.W.3d 11, 18-19 (Mo. banc 2012).[3]Circumstantial evidence is given the same weight as direct evidence in considering the sufficiency of the evidence. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993).

         Points I and II-Evidence is Sufficient to Support Sexual Exploitation Conviction

         In his first two points on appeal, Defendant contends the trial court erred in denying his motion for judgment of acquittal on count I of the class B felony of sexual exploitation of a minor, arguing sufficient evidence was lacking to show (A) Defendant knew L.P. was under the age of 18, and (B) the video at issue constituted a "lascivious" exhibition of L.P.'s genitals.

         Analysis

         A. Knowledge of Age

         Defendant was convicted of one count sexual exploitation of a minor, in violation of Section 573.023, which required the State to prove that "such person knowingly . . . films . . . child pornography." Section 573.010(4) defines child pornography as, inter alia, "[a]ny visual depiction . . . of sexually explicit conduct, where [t]he production of such visual depiction involves the use of a minor engaging in sexually explicit conduct[.]" Section 573.010(10) defines a "minor" is any person less than eighteen years of age. Defendant contends he could not be found guilty of this charge because he was unaware of L.P.'s age at the time he filmed L.P.'s genitals.

         A person "acts knowingly, " or with knowledge with respect to his or her conduct or to attendant circumstances "when he or she is aware of the nature of his or her conduct or that those circumstances exist." Section 562.016.3(1). As it is difficult to acquire direct evidence of the requisite state of mind of a defendant, it is permissible to infer a defendant's knowledge of the age of a victim from ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.