Shaffer v. State


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Docket Number: 2009-KA-00151-COA
Linked Case(s): 2009-KA-00151-COA ; 2009-CT-00151-SCT ; 2009-CT-00151-SCT

Court of Appeals: Opinion Link
Opinion Date: 09-14-2010
Opinion Author: Carlton, J.
Holding: Reversed, rendered and remanded.

Additional Case Information: Topic: Exploitation of child by solicitation for purpose of engaging in sexually explicit conduct - Sufficiency of evidence - Section 97-5-33(6) - Definition of "child" - Section 97-5-31(a) - Attempted exploitation of child - Authentication of chat logs - M.R.E. 901(a) & (b)(1) - Recusal of judge - Lesser punishment - Section 97-5-27(3)(a)
Judge(s) Concurring: King, C.J., and Ishee, J.
Judge(s) Concurring Separately: Maxwell, J., specially concurs with separate written opinion joined by Barnes, J.
Dissenting Author : Griffis, J., dissents with separate written opinion.
Dissent Joined By : Lee and Myers, P.JJ., and joined in part by Irving, J.
Dissenting Author : Roberts, J., dissents with separate written opinion.
Concur in Part, Concur in Result 1: Barnes, J., concurs in part and in the result without separate written opinion.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 08-14-2008
Appealed from: Greene County Circuit Court
Judge: Kathy King Jackson
Disposition: CONVICTED OF EXPLOITATION OF A CHILD AND SENTENCED TO TWENTYFIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE AND TO PAY A $50,000 FINE
District Attorney: Anthony N. Lawrence, III
Case Number: 21-06-10,048(2)

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Justin David Shaffer a/k/a Justin David Schaffer




ELEANOR JOHNSON PETERSON



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY JR.  

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    Topic: Exploitation of child by solicitation for purpose of engaging in sexually explicit conduct - Sufficiency of evidence - Section 97-5-33(6) - Definition of "child" - Section 97-5-31(a) - Attempted exploitation of child - Authentication of chat logs - M.R.E. 901(a) & (b)(1) - Recusal of judge - Lesser punishment - Section 97-5-27(3)(a)

    Summary of the Facts: Justin Shaffer was convicted of the exploitation of a child by solicitation for the purpose of engaging in sexually explicit conduct. The circuit court judge sentenced Shaffer to twenty-five years without the possibility of parole. Shaffer appeals.

    Summary of Opinion Analysis: Issue 1: Sufficiency of evidence A jury convicted Shaffer of the exploitation of a child under section 97-5-33(6), which provides that no person shall, by any means including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with the defendant or any other person for purpose of engaging in sexually explicit conduct. “Child” is defined in section 97-5-31(a) as any individual who has not attained the age of eighteen years. Shaffer argues that the State failed to prove that a child was involved in the solicitation, an essential element of the indicted crime. Shaffer asserts that even though he thought he had communicated with “Chloe,” a thirteen-year-old girl, he had actually communicated with a twenty-nine-year-old woman posing as “Chloe.” The statutory language at the time of Shaffer’s 2006 indictment required proof that a child was involved in the solicitation to constitute child exploitation in violation of the indicted statute. The State bore the burden of proof to show (1) on or between June 29, 2006, through July 9, 2006, Shaffer, willfully and unlawfully, knowingly enticed, induced, persuaded, seduced, solicited, advised, coerced, or ordered a child (2) to meet with him to engage in sexually explicit conduct. The evidence in the record shows Shaffer actually solicited an adult posing as a thirteen-year-old child. Shaffer acknowledges that the language of subsection eight of section 97-5-33 allows that an undercover operative or law enforcement officer may be involved in the investigation. However, he argues that this language fails to relieve the State’s burden of proof under subsection six to show a child’s involvement in the offense, even though law enforcement may pose as a child or be otherwise involved in the investigation. While the State did not carry its burden to prove evidence of some involvement by a child, the record contains more than sufficient evidence proving Shaffer guilty of attempted child exploitation. Count I of the indictment sufficiently charged Shaffer with the crime of exploitation of a child; therefore, Shaffer is guilty of attempted exploitation. Shaffer’s conviction as to the greater offense of exploitation of a child under section 97-5-33(6) is reversed, a finding of guilt for the offense of attempted exploitation of a child is rendered. The case is remanded for a reassessment of sentencing. Issue 2: Authentication of chat logs Shaffer argues that the circuit court improperly allowed the State to enter the chat logs containing the chats between Shaffer and “Chloe” into evidence without proper authentication, because the State presented no proof of who had created the print out of the chat logs. Pursuant to M.R.E. 901(a), the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. The person chatting with Shaffer testified as an authenticating witness utilizing her own first-hand knowledge of her chats with Shaffer. She testified that she had an opportunity to read and peruse the copy of the chat logs introduced by the State and that they constituted a true and accurate copy of the chats that she had engaged in with Shaffer. Rule 901(b)(1) allows authentication through testimony of a witness with knowledge that a matter is what it is claimed to be. Shaffer also argues that the failure to properly authenticate the chat logs resulted in a violation of his right to confront witnesses against him. He argues that the person responsible for maintaining the proxy server should have testified and been available for cross-examination. Shaffer failed to object to the chat logs on this basis; therefore, this issue is procedurally barred. Even so, Shaffer was afforded the right to fully cross-examine the person with whom he chatted. She was the proper witness for Shaffer to confront as to the accuracy of the chat logs of their conversations because she conducted the chats at issue. Issue 3: Recusal of judge Shaffer argues that the circuit court judge was biased against him and should have recused herself from this case. Shaffer appeared before the circuit court judge in this case in a prior criminal trial in wherein the State prosecuted Shaffer for capital murder. In that case, the jury found Shaffer guilty of simple murder and sexual battery, and he then appealed. The supreme court reversed his conviction and remanded the case for a new trial in the circuit court. On remand, the district attorney appeared before the circuit court judge and announced that the State wished to dismiss the indictment because insufficient evidence existed to proceed with a new trial. Shaffer alleged that the circuit court judge voiced her disagreement with the district attorney’s decision by stating that sufficient evidence existed to try Shaffer again. The record shows that Shaffer never renewed the issue of recusal during the proceedings in the circuit court. In addition, Shaffer failed to provide sufficient evidence to rebut the presumption that the circuit court judge was qualified and unbiased. Issue 4: Lesser punishment Shaffer argues that he should have been sentenced to the lesser punishment applicable to the offenses codified in section 97-5-27(3)(a). With respect to his conviction for child exploitation on appeal, the record shows that Shaffer failed to request any jury instruction regarding any lesser-related offense. Furthermore, Shaffer failed to raise this issue before the circuit court. Case law does not impose upon a trial court a duty to instruct the jury sua sponte, nor is a court required to suggest instructions in addition to those which the parties tender.


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