Court rules 2-1 to remand Purdom case back to Circuit court; says trial court should have viewed all 58 videos before ruling on admissability…

FRANKFORT, Ky. — In a split decision on April 22 the Kentucky Court of Appeals reversed a decision by a Lawrence County jury that convicted local banker Ed Purdom, Jr. of possessing child pornography and remanded the case back to Circuit Court.

Purdom’s attorney, Michael Mizzoli of Louisville, argued in front of judges DIXON, NICKELL, AND VANMETER, and claimed the trial court should have excluded all sexually explicit videos, especially since he offered to stipulate they contained child pornography, and should have granted his directed verdict motion. VANMETER dissented and Dixon and Nickell voted in the affirmative, court records show.

Having reviewed the briefs, the record and the law, the Kentucky Court of Appeals reversed and remanded for further proceedings due to the trial court’s failure to conduct the balancing test required by case law.

New Attorney General Steve Beshear ‘s office did not return a phone call for comment on whether the case will be retried or when. A spokesperson from the office said she will try to get the information as soon as possible.

Edgar N. Purdom, Jr., appealed a sentence of fifteen years imposed by the Lawrence Circuit Court after a jury found him guilty of distribution of matter portraying a sexual performance by a minor (four counts) and possession  of matter portraying a sexual performance by a minor (one count), a class D felony.

After a three day trial, jurors fixed punishment at three years on each of the five counts, with the
terms to be served consecutively, a sentence the trial court imposed without change.

The entire case can be viewed at http://law.justia.com/cases/kentucky/court-of-appeals/2016/2014-ca-002079-mr.html

FACTS FROM THE APPEALS COURT

This prosecution resulted from an undercover operation launched in September 2008 by the Office of the Kentucky Attorney General (OAG) to catch persons using peer-to-peer (P2P) software to traffic in child pornography via the internet. In 2013, Investigator Kathryn Reed noticed suspicious online activity involving an internet protocol (IP) address assigned to Purdom in Louisa, Kentucky. At the time, Purdom was president of the Louisa Community Bank and had been involved in commercial banking for three decades.

On Sunday, February 24, 2013, Reed identified a computer with Purdom’s IP address as a potential source from which 35 files believed to contain child pornography could be downloaded. That evening and the next day, Reed successfully downloaded five videos, each between six and 26 minutes in length.

On July 16 and 17, 2013, Reed downloaded more videos, these were between ten and 14 minutes in length. On September 9 and 10, 2013, Reed noticed more suspicious activity associated with Purdom’s IP address and downloaded still more files. On these two days, cookies associated with Purdom’s IP address indicated the user had visited several adult and child pornography websites.

On October 3, 2013, a search warrant was executed at Purdom’s Louisa apartment. Various electronic devices—including a desktop computer, a laptop computer, an iPad and cellphones—were seized from the apartment.

Purdom agreed to collect and provide more devices during a subsequent meeting. While Purdom alone used his home desktop computer, and he alone knew its password, he professed shock when investigators apprised him of the contraband files and pornographic websites linked to his IP address. Purdom ultimately deflected culpability from himself to a Portuguese immigrant who cleans the bank parking lot, does not drive, lacks a valid visa, and has repaired Purdom’s computer ten or more times.

The case was tried November 24-26, 2014. According to Purdom’s brief, a pre-trial hearing occurred ten days before trial, but no such hearing appears in the certified record provided to us (the Appeals Court).

During voir dire, jurors were made aware of the nature of the case. The prosecutor told jurors they might be shown images containing child pornography. That revelation prompted several potential jurors to approach the bench and be excused from consideration. During defense counsel’s questioning, he referred to Purdom’s alleged conduct as “horrific and disgusting.”

Once a jury was sworn, the Commonwealth stated in its opening remarks that it was unclear whether videos would be shown to the jury during trial.

Defense counsel reserved opening statement.

Reed was the Commonwealth’s first witness. For nearly two hours she gave highly technical and methodical testimony about computers, the internet, and how her investigation unfolded. In detailing the times at which she downloaded videos, she gave a brief description of the content of each video she had provided in an affidavit in support of the search warrant executed at Purdom’s apartment. The written description of the first video read: This video is 7 minutes and 9 seconds in length and depicts a pre-pubescent female child seen performing oral sex on an adult male (Next part redacted by The Levisa Lazer).

{Absent the filing of a designation of record, a pre-trial hearing will not be included in the appellate record. Kentucky Rules of Civil Procedure (CR) 98(3). No designation of record having been filed in this case, we do not know what transpired at that hearing because it is not part of the certified record. Purdom claims during the hearing he asked the trial court to excludethe videos from the upcoming jury trial because they were graphic and highly inflammatory. He also says he offered to stipulate the videos contained child pornography.}

After the lunch break, while at the bench discussing proposed instructions, defense counsel formally objected to the anticipated playing of portions of the videos during trial. He argued their prejudice outweighed any probative value, and playing any portion of any of them—apparently even one second—was cumulative and unnecessary because Reed had already and would again verbally describe the activity depicted in the clips the Commonwealth wanted to play. Purdom urged the court to exercise its discretion under KRE 403 and exclude all the videos. This was the only objection voiced by defense counsel in the certified record.

In response, the Commonwealth argued it was necessary to play the videos to establish an element of both crimes charged—that Purdom knew the “content and character” of the videos—something uniquely within Purdom’s mind—and he possessed and distributed the material with that specific knowledge.

The prosecutor stated Purdom’s offer to stipulate the videos contained sexual performances by minors was wholly insufficient in light of the elements involved.

Jurors saw only twelve seconds of this video, depicting an adult male and a female child, both
nude, on a bed, with the child {PERFORMING A SEX ACT}..

The prosecutor went on to say, “I’m only going to play enough of each to establish it’s a sexual performance by a minor,” and “I’m only going to play one off of each day.” The trial court then ruled, saying, “Okay. All right. Thank you. Overruled.” Thereafter, Reed resumed testifying.

About eight minutes into the afternoon session, twelve seconds of the first video was played; followed by two minutes and 52 seconds of the second video. About six minutes later, 32 seconds of the third video was played, followed by 11 seconds of the fourth video. On the afternoon of the second day of trial, during testimony from OAG Investigator and Digital Forensic Examiner Tom Bell, snippets of three more videos were played—one was a 30 second repeat of a clip shown on the opening day of trial to confirm Bell had located that particular video on a FireLight external hard drive Purdom had provided to Reed; the second was only two seconds long, but played twice because it was “very quick;” and, the third was nine seconds long.

After deliberating 22 minutes, jurors convicted Purdom on all five counts, but they did not sentence him to the maximum term of five years on each charge. Instead, they fixed punishment at three years on each count, to be served consecutively for a total of 15 years.

It is from this judgment, entered in conformity with the jury’s verdict, that Purdom APPEALED.

Court’s Analysis

Purdom’s first and most compelling argument is the trial court abused its considerable discretion by not excluding all videos from trial. More specifically, he claims the trial court abandoned its role as a gatekeeper by admitting the videos without first viewing them and balancing their potential for undue prejudice against their purported probative worth. We agree.

A trial court has wide discretion in admitting evidence. On appeal, we will not disturb a trial court’s decision to admit evidence absent an abuse of discretion. To overturn the trial court’s ruling, we must be convinced the decision was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” 

In this prosecution, each video was different in content, established a separate charge, and the Commonwealth had refined the portion of each video shown to the bare minimum.

Not only did the Commonwealth not show portions of all 58 salacious videos in Purdom’s possession, it showed mere seconds of most, with two minutes and 52 seconds being the longest clip and the trio of children depicted therein was clothed during much of it.

it is but the latest pronouncement directing trial courts to view potentially inflammatory material before allowing it to be shown to a jury. [W]e note that the trial court specifically stated that it purposely never viewed the sexually explicit images before they were exhibited to the jury. In its role as a gatekeeper of evidence, a trial court must view and consider any disputed evidence to determine its admissibility on relevancy grounds, regardless of the revolting nature of that evidence. Stated another way: how could the trial court properly weigh the prejudicial effect of these images against their putative, probative value without first seeing them? On remand, the trial court must not abdicate its gatekeeping role by ruling in a vacuum as to the admissibility of unseen images orobjects.

Given the inflammatory nature of the evidence, the district court needed to know what was in the photographs and videos in order for it to properly exercise its discretion under Rule 403.10 Without looking at the videos for itself, the court could not have fully assessed the potential prejudice to Loughry and weighed it against the evidence’s probative value. See Curtin, 489 F.3d at 958 (“One cannot evaluate in a Rule 403 context what one has not seen or read.”). We therefore hold that, in light of the evidence in this case, the district court abused its discretion under Rule 403 when it failed to review the challenged videos before they were admitted in evidence.

In light of the foregoing, we must conclude the trial court abused its discretion and abandoned its role as gatekeeper. The only other issue raised on appeal is whether the trial court should have granted a directed verdict.

In light of our resolution of the KRE 403 issue, and the need for remand to the trial court, whether a directed verdict should have been granted is moot.

WHEREFORE, we reverse and remand the judgment for further proceedings consistent with this Opinion. If a retrial is scheduled, and the Commonwealth seeks to play sexually explicit videos to which Purdom objects, the trial court must view the material, conduct the balancing test required by KRE 403 and case law, make appropriate findings of fact as discussed in Hall, and rule on whether any, all or none of the videos may be played for the jury.