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State v. Foster

Court of Appeals of Missouri, Western District, First Division

December 24, 2019

STATE OF MISSOURI,
v.
DUSTIN A. FOSTER, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF LINN COUNTY, MISSOURI THE HONORABLE TERRY TSCHANNEN, JUDGE

          Edward R. Ardini, Jr., Presiding Judge, Mark D. Pfeiffer, Judge and Cynthia L. Martin, Judge

          EDWARD R. ARDINI, JR., JUDGE

         Dustin Foster appeals the judgment of the Circuit Court of Linn County, entered after a bench trial, convicting him of one count of possession of child pornography and one count of sexual exploitation of a minor. Foster argues that possession of child pornography is a lesser-included offense of sexual exploitation of a minor and, as a result, convictions entered against him for both offenses violated his right to be free from double jeopardy. Finding no error, we affirm the trial court's judgment.

         Factual and Procedural Background[1]

         Foster was charged with one count of sexual exploitation of a minor and one count of possession of child pornography based on a video recorded on his cell phone of an eight-year-old female ("Victim"). Specifically, the State charged in Count I that Foster committed the offense of sexual exploitation of a minor in that "on or about April 11, 2017, . . . [Foster], knowing of its content and character, created obscene material with a minor by filming a person inside a bathroom standing up with an exposed vagina and exposed buttocks that has a person under the age of fourteen years as a participant." In Count II, the State charged that Foster committed the offense of possession of child pornography in that "on or about April 11, 2017, . . . [Foster] knowingly possessed child pornography of a person less than eighteen years of age, consisting of a person standing up inside a bathroom standing up with an exposed vagina and buttocks and the child pornography consisted of a moving image."

         The following evidence was adduced at trial. Foster lived with his mother ("Mrs. Foster"). Victim stayed at their home on April 10 and 11, 2017, while her parents were on a fishing trip. On April 19, 2017, Foster was arrested in connection to allegations of sexual misconduct involving a different minor female.[2] Prior to being taken into custody, Foster provided his cell phone to Mrs. Foster. Foster had previously provided Mrs. Foster the cell phone's security passcode that permitted Mrs. Foster to access the phone's content. Mrs. Foster thereafter discovered a video on Foster's cell phone recorded on April 11th of Victim in the bathroom. The video was recorded from Foster's bedroom; Victim was visible through the "propped open" bathroom door. The video showed Victim's face, exposed vagina and exposed buttocks. Mrs. Foster contacted law enforcement and provided the cell phone to the officers.

         At the conclusion of Foster's bench trial, the trial court found Foster guilty of sexual exploitation of a minor as charged in Count I and possession of child pornography as charged in Count II. Foster was sentenced to serve concurrent terms of 15 years on Count I and 10 years on Count II. Foster appeals, asserting that convictions for both offenses violated his right to be free from double jeopardy.

         Standard of Review

         Foster acknowledges that he failed to raise a double jeopardy claim before the trial court, and thus asks this Court to review this constitutional claim for plain error. "Where an appellant fails to preserve a constitutional claim, this Court may still hear such a claim pursuant to Rule 30.20."[3] State v. Alexander, 505 S.W.3d 384, 396 (Mo. App. E.D. 2016). "Rule 30.20 grants this Court authority to consider 'plain errors' by a trial court affecting a party's substantial rights." Id. (reviewing an appellant's unpreserved double jeopardy claim for plain error).

         "Under plain error review, we will only grant a defendant relief if we find an error occurred, which affected his rights so substantially that a manifest injustice or miscarriage of justice resulted." Id. "Plain errors are those which are evident, obvious, and clear . . . ." Id. "The defendant has the burden of demonstrating a manifest injustice or miscarriage of justice resulted from the alleged error." Id. at 396-97. "Whether a defendant's right to be free from double jeopardy has been violated is a question of law, which we review de novo." Id. at 397.

         Analysis

         In his sole point on appeal, Foster asserts that the "trial court plainly erred in punishing [him] for sexual exploitation of a minor and possession of child pornography because in doing so the trial court violated [his] right to be free from Double Jeopardy as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, in that possession of child pornography is a lesser included offense of sexual exploitation of a minor because it is impossible to create child pornography or obscene material without also possessing it." We conclude that possession of child pornography is not a lesser-included offense of sexual exploitation of a minor, and thus entry of conviction and imposition of sentence for both crimes did not violate Foster's double jeopardy protections.

         "The federal double jeopardy clause provides that no person shall 'be subject for the same offence to be twice put in jeopardy of life or limb.'" State v. Hardin, 429 S.W.3d 417, 421 (Mo. banc 2014) (quoting U.S. Const. amend V). "It provides two basic protections: it protects defendants from successive prosecutions for the same offense after acquittal or conviction and it protects defendants against multiple punishments for the same offense." Id. Foster's case implicates the latter protection because he ...


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