Miller v. State

         Appeal from the Superior Court, Third Judicial District, Trial Court Nos. 3KN-08-568 CR & 3KN-08-740 CR Kenai, Carl Bauman, Judge.

          Appearances: Elizabeth D. Friedman, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant.

          Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. ^[*]

          OPINION

          MANNHEIMER, Judge.

         Richard I. Miller was found guilty of more than a hundred counts of possessing child pornography, as well as two counts of soliciting other people to tamper with evidence. (Following his arrest, Miller telephoned certain individuals and asked them to delete various materials from his home and business computers, or to remove the computers themselves.)

         On appeal, Miller contends that the trial judge committed error by allowing the prosecutor to introduce evidence that Miller possessed a book entitled The Man They Called a Monster - an academic study of Clarence Osborne, an Australian man who advocated sexual relations between adults and children, and who professed to have engaged in sex with hundreds of boys. For the reasons explained in this opinion, we conclude that any error in the trial judge's ruling was harmless.

         Miller also argues that the trial judge committed plain error by allowing the prosecutor, during the State's summation to the jury, to refer to the fact that Miller possessed additional child pornography for which he was not charged. For the reasons explained in this opinion, we conclude that the prosecutor's reference to this uncharged pornography did not constitute plain error.

         Miller asserts that the superior court committed error by assessing a separate "police-training" surcharge for each of Miller's 116 convictions. We agree with Miller, and we direct the superior court to impose only a single surcharge.

         Finally, Miller objects to various assertions in his pre-sentence report. For the reasons explained here, we direct the superior court to reconsider Miller's objections to the pre-sentence report.

         The evidence that Miller possessed a copy of The Man They Called a Monster

         Prior to Miller's trial, the judge issued a protective order that barred the State from introducing evidence that Miller possessed literature dealing with pedophilia unless Miller took the stand and disclaimed knowledge of the pornographic images found at his home and business.

         At trial, Miller did take the stand and denied possessing the pornographic images. After Miller gave this testimony, the trial judge concluded that the probative force of Miller's possession of literature dealing with pedophilia now outweighed the potential for unfair prejudice posed by this evidence. However, to minimize the potential for unfair prejudice, the judge limited the prosecutor to questioning Miller about only two works: an article entitled Kolya and a book entitled The Man They Called a Monster. Because the prosecutor could not locate a copy of Kolya, the prosecutor only cross-examined Miller about The Man They Called a Monster.

         This book, The Man They Called a Monster, is not a work of pornography. Rather, it was written by an academic; it is a study of an Australian man who advocated sexual relations between adults and children, and who professed to have engaged in sex with hundreds of boys.

         The prosecutor suggested that Miller's possession of this book demonstrated Miller's sexual interest in young boys, while Miller asserted that he possessed the book because it was a detailed study of a sociological problem.

         The judge's decision to allow the prosecutor to cross-examine Miller about this book is questionable. We discussed a related issue in Linehan v. State, 224 P.3d 126, 148 (Alaska App. 2010), where we explained that courts are normally quite cautious about allowing the government to introduce evidence of a defendant's tastes in literature or cinema when this evidence is offered to prove that the defendant likely committed the types of crimes or misdeeds portrayed in those books or movies.

         Here, the book that Miller possessed was not a work of child pornography. It was an academic examination of a man who advocated and engaged in pedophilia. The fact that Miller possessed a copy of this book had only marginal probative value on the question of whether Miller himself would engage in such criminal activities.

         (See our discussion of the related point in Linehan: "[M]any law-abiding people are drawn to characters in literature or in the cinema who are villainous or roguish ... even though they would not dream of engaging in the same crimes or misdeeds." 224 P.3d at 148.)

         Nevertheless, we conclude that any error was harmless. It is true that, during summation, the prosecutor argued briefly that Miller's possession of this book showed that he was sexually interested in children. But the State's case rested primarily on the dozens of pornographic images found on the computer hard drive in Miller's locker at work, and on the child pornographic CDs that were found in Miller's dresser, and on Miller's telephone calls from the jail asking people to delete computer files or remove computers from his home and business.

         Given the other evidence in this case, we conclude that the admission of evidence that Miller possessed a copy of The Man They Called a Monster did not appreciably affect the jury's decision. Accordingly, even if it was error to ...