Later, upon examination, law enforcement authorities determined that the iPhone contained information showing that it had been utilized for purposes of connecting to the internet to view and upload <mask>. Upon a later questioning, Appellee, when confronted with this information, made certain potentially incriminating statements. Appellee was subsequently charged with thirty (30) counts of distribution, possession, or viewing of matter depicting sexually explicit conduct involving a child. In a pre-trial motion, Appellee sought to suppress the evidence found on the iPhone and his subsequent incriminating statements. The trial court in deciding to suppress the evidence, framed the question for this interlocutory appeal rather nicely. Quoting from the pre-trial order suppressing evidence:


In 2008, Congress amended the jurisdictional provisions of several child-pornography laws, including § 2252(a)(2), to add the phrase “using any means or facility of interstate or foreign commerce.” Effective <mask> Prosecution Act of 2007, Pub. L. No. 110– 358, § 103, 122 Stat. 4001 (2008) (amending §§ 2251, 2251A, 2252, and 2252A to include that phrase). Previously, § 2252(a)(2) required that the child pornography had been mailed, shipped, or transported in interstate or foreign commerce.5 18 U.S.C. § 2252(a)(2) (2006). We agree with other circuit courts that have interpreted this amendment as an “expan[sion]” of the statute’s “jurisdictional coverage.” United States v. Lewis, 554 F.3d 208, 216 (1st Cir. 2009); see United States v. Crain, 877 F.3d 637, 646 & n.32 (5th Cir. 2017) (recognizing that the “jurisdictional element” of 2252(a) was “expanded” by the 2008 amendment); United States v. Wasson,


*644This argument does not support reexamination of the court’s denial of the motion to suppress. First, defendant’s motion papers made no allegation that the police ventured outside “xxx” and “MPG” file folders. Second, the critical point is that defendant’s motion to suppress only targeted for a suppression order the 43 child pornographic images which are the subject of the indictment. Nothing additional was sought to be suppressed. The motion to suppress, framed as it was in these terms, did not require examination into whether the December 10th search went beyond the “xxx” and “MPG” file folders, or included two files in the “xxx” file folder not containing <mask>. Even if it had, the remedy would be, as I pointed out in my original decision, suppression of “only the information attributable to that additional ‘search,’ ” not suppression of the results of the entire search. (United States v $557,937.89, More or Less, in U.S. Funds, 287d 66, 87-88 [2d Cir 2002] [emphasis in original], quoted in n 3 of the original decision.) There is no precedent supporting suppression of those items a valid plain view search turns up simply because the police seize other items not in plain view which the People do not intend to use at trial. (United States v Rouse, 148d 1040, 1041 [8th Cir 1998] [suppression ordered only of those items with respect to which the defendant did not “already ha(ve) his expectation of privacy frustrated”]; cf., in the context of severing an invalid portion of a search warrant, People v Brown, 96 NY2d at 86-87.) Inasmuch as the motion to suppress targeted only the child pornography images, and they were lawfully seized and searched in plain view, the motion for reargument is denied. Defendant’s remedy, if any, would be a motion for a return of those items improperly seized. (Waller v Georgia, 467 US 39, 44 n 3 [1984]; Andresen v Maryland, 427 US 463, 482 n 11 [1976].) For the same reasons, the fact that two image files in the “xxx” and “MPG” folders had titles not suggesting child pornography does not require reexamination of the original decision denying the motion to suppress, because defendant did not in his original motion papers seek suppression of those two image files. In any event, the People have expressed no intent to use them at trial.


The supporting affidavit identified Jennie Reynolds as the subscriber to the Comcast account with the suspect IP address. The affidavit stated that "the person responsible for the trading of <mask> from this residence can be anyone with access to the internet signal associated with this residence." Neither the warrant nor the affidavit mentioned Nguyen. Pierce testified that at the time he sought the warrant he did not know Nguyen lived in the rear residence, and he had no information *128on the relationship between Nguyen, Reynolds, and Blankenship. *579The day before police executed the search warrant, they notified the Mountain View Police Department of the impending search of Nguyen's residence. On the day of the search, San José police officers surreptitiously followed Nguyen driving from the property at 309 South 23rd Street to the Mountain View Police Department. When Nguyen arrived at work to report for duty, two Mountain View police officers took him aside, informed him of the search, and told him to wait with them until the search was complete.


– 15 – 2719 But these comments did not relate to the images introduced at trial; rather, they referred to Lee’s <mask> collection as a whole. Noting that many of the images were “extraordinarily disturbing and inflammatory when we’re talking about sexual abuse of a minor of a six-year-old and an eleven-year-old,” the court proceeded to rule that the vast majority of the images were inadmissible, and that only a few images that appeared similar to “the ages of the victims in the case and the conduct that is alleged to have occurred” could be shown to the jury. Ultimately, only eight images, including the two images for which Lee was indicted, survived the trial court’s review. Thus, due to the care the trial court took to whittle down the number of images presented to the jury — and to exclude the most prejudicial of those images — the potential for undue prejudice was greatly diminished. Moreover, as we previously noted, Lee’s statements — particularly his statement about not being interested in sex — provided a case-specific relevancy for these images. Ultimately, even when charges are improperly joined, the error requires reversal “only if the defendant makes a particularized showing of prejudice.” As we have previously stated: It is not enough for the defendant to show that evidence of the various charges was not cross-admissible, nor is it enough for the defendant to assert in general terms that the trial of several charges at once might suggest to the jurors that the defendant has a criminal disposition.[31]


847 F. App’x 523, 525–26 (10th Cir. 2021) (emphasizing that Congress “reduce[d] the government’s burden on the interstate commerce element” when it amended a materially identical offense to include the words “using any means or facility of interstate or foreign commerce”) (interpreting § 2252A). That is to say, the interstate-commerce element of § 2252(a)(2) is satisfied when a defendant uses the internet to distribute <mask>, regardless of whether there is evidence that the data travelled interstate.


Finally, Dr. Kline concluded that Derby was more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. Dr. Kline explained that predatory acts are those directed towards individuals, including family members, for the primary purpose of victimization. Dr. Kline noted that children portrayed in <mask> are also victimized. Dr. Kline explained that Derby's past offense against his nephew was a predatory, sexual act and that Derby's purpose in molesting his nephew was victimization. Dr. Kline opined that future acts by Derby were similarly more likely than not to be of a predatory, sexually violent nature involving some victimization.


template that the statute applies in a situation where the patient merely blurts out that he has an addiction to <mask>.” Instead, under its policy, reporting would be required in contexts where the patient “is drawn to a particular child,” “knows the identity or whereabouts of a child depicted in the pornography,” “help[s] to produce the pornogra- phy,” or in other contexts where “there is an identifiable child or identifiable children that could be the subject of action by the child protective agency.” E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, OLC, from John Casciotti, Office of General Coun-


Resolution of the issue presented requires us to consider the interplay of several statutes. In 2009, the Legislature amended Article 39.14 of the Code of Criminal Procedure and added Articles 39.15 and 38.45. Act 2009, 81st Leg., R.S., Ch. 276, §§ 1-3, 2009 TEX.GEN.LAWS 732-33. The stated purpose of these legislative changes was to remove the ability of defendants charged with possession or promotion of <mask> to retain copies of the evidence against them, including child pornography. Texas Bill Analysis, 81st Leg., R.S., S.B. 595 (September 17, 2009).


10. On appeal, defendant argues Karen’s testimony and the subsequent <mask> possession evidence was insufficient to clearly and convincingly corroborate Jane’s allegations; the statute of limitations, therefore, could not be tolled under section 803(f), and counts 3, 4, 5 and 9 must be reversed as time barred. B. Corroboration Requirement Supported by Substantial Evidence 1. Section 803 If a pleading is barred by the applicable statute of limitations, the prosecution must allege facts that toll the limitation period. (People v. Crosby (1962) 58 Cal.2d 713, 724.) Pursuant to section 803(f), an expired statute of limitations period may be tolled under particular circumstances. A criminal complaint may be filed within one year of a police report for certain sexual offenses, such as violations of section 288, 261, and 289, which are at issue here, that were committed against victims when they were less than 18 years old. (§ 803, subd. (f)(1).) For tolling to apply under these circumstances, the following criteria must be established: (1) the limitations period specified in sections 800, 801, or 801.1, whichever is later, has expired (§ 803, subd. (f)(2)(A)); (2) the crime involved substantial sexual conduct as described in section 1203.066, subdivision (b), excluding masturbation that is not mutual (§ 803, subd. (f)(2)(B)); and (3) there is independent evidence that corroborates the victim’s allegations (§ 803(f)(2)(C)). If the victim is 21 years of age or older at the time of the report, section 803(f)(2)(C) states that “the independent evidence shall clearly and convincingly corroborate the victim’s allegation.” Further, “[e]vidence shall not be used to corroborate the victim’s allegation if that evidence would otherwise be inadmissible during trial” (§ 803, subd. (f)(3)), and “[i]ndependent evidence excludes the opinions of mental health professionals” (ibid.).


In the days and weeks that followed, the wife began cleaning up the cluttered basement where many of Steele's possessions remained. During one of her cleaning sessions, the wife found a purple box that had fallen behind a desk. This box contained several floppy disks. She informed her son, and they used a device belonging to her mother to determine what was on the disks. Based on the file names, they turned the disks over to Detective Horn, who determined that seven disks held <mask> and four held photos of nude adult celebrities. Detective Horn had also determined that the iPad contained photos of nude celebrities, non-celebrity nude photos, clothed women, and nature. Detective Horn never visited the apartment, and he took the wife at her word as to where the floppy disks were found. Steele did not present any witnesses, but the Commonwealth played his recorded police statement without objection, in which he characterized the voyeurism as a mistake and denied possessing any child pornography.


abuse, regardless of where the suspected victim is cared for or resides. We recognize that the scope of some of the statutory language may be ambig- uous, and that narrower readings of the reporting requirement find some support in certain of the statute’s provisions. But we believe that section 13031, read as a whole and in light of its purpose, is best interpreted broadly. Second, you have inquired whether the VCAA’s reporting obligation is triggered when a person covered by section 13031 learns that a patient under his or her care has viewed <mask>, even if the person does not know, and has no reason to believe the patient knows, the identi- ty of the child or children depicted in the pornography. We conclude that the fact that a patient has viewed child pornography may be a “fact[] . . . giv[ing] reason to suspect that a child has suffered an incident of child abuse” under section 13031, and that the statute does not require a cov- ered professional to possess knowledge of the identity of an affected child in order for the reporting duty to apply. We have concluded that the interpretive questions you have raised can be resolved using ordinary tools of statutory construction, so we have not applied the rule of lenity even though the VCAA provides for criminal penalties. We note, however, that a person who fails to make a report required by section 13031 will not necessarily be subject to criminal penalties under the statute. The criminal penalty provision contains no explicit mens rea requirement, and thus one would almost certainly be inferred. See United States v. X-Citement Video, Inc., 513 U.S. 64, 70 (1994). While we need not decide what mens rea would apply, a court construing section 13031 might well require a defendant to have known that a report was legally required before imposing criminal liability for a failure to report. Such a reading would, among other things, address any concern about imposing criminal liability on persons who lacked clear notice that the failure to report in their particular circumstances was unlawful.


"Determining whether an expectation of privacy is 'legitimate' or 'reasonable' necessarily entails a balancing of interests." ( Hudson , supra , 468 U.S. at p. 527, 104 S.Ct. 3194.) Here, the competing interests are defendant's interest in privacy within his area of the CSH dormitory and society's interests in both the security and order of a maximum-security psychiatric hospital and the treatment and rehabilitation of SVP's. "Virtually the only place [patients] can conceal ... contraband [such as child pornography] is in their [dormitories]." ( Ibid. ) A recognition of privacy rights for SVP's in their dormitories would hamper CSH staff from accessing the dormitories and ferreting out <mask>, the possession of which has become widespread, has incited violence among the patients, and clearly undermines the rehabilitation objective. Searches of the over 800 SVP's and their dormitories, even if done at random, " 'are valid and necessary to ensure the security of the institution and the safety of [patients]' " ( id. at p. 529, 104 S.Ct. 3194 ) as well as promote the rehabilitation objective, giving CSH staff " 'flexibility' " and preventing patients " 'from anticipating, and thereby thwarting, a search for contraband' " ( ibid. ), a key concern at CSH. We also point out the record establishes a CSH dormitory " 'shares none of the attributes of privacy of a home' " ( id. at p. 527, 104 S.Ct. 3194 ): the dormitory itself *496accommodates multiple patients, officers conduct random searches on a daily basis, and various signs throughout the facility warn patients they are subject to such searches.


Lewis Bart Stone, J. Bernard Millan pleaded guilty on May 12, 1999, in the United States District Court for the Southern District of New York, to an indictment charging a violation of 18 USC § 2252 (a) (2), a federal class C felony, carrying a potential punishment of more than one-year imprisonment. The indictment charged that “Millan attempted to purchase videotapes depicting <mask>.” The underlying facts indicate that Millan, using a computer, ordered tapes which depicted sex acts involving children ages 5, 6 and 14 years old.1


This is a different situation than that encountered in the context of simple obscenity, as opposed to <mask>. If *643we were only dealing with materials alleged to be obscene, the labeling, on the computer file folder table of contents page, of files as “sexually explicit” would not be enough to suggest that, in addition, the file images contained therein were obscene, because an additional finding beyond sexual explicitness, which could only occur by a viewing of the files, would have to be made. In that situation, a warrant would have to be obtained to open the individual files labeled as sexually explicit, on an additional showing beyond the labeling that obscenity may probably be present. That is the point of Walter v United States (447 US 649, 657 [1980] [from the labeling alone, “one could only draw inferences about what was on the films”]), and also the point of United States v Carey (172d at 1273-1276).


Keone Jason Lee was convicted, following a jury trial, of five counts of first-degree sexual abuse of a minor, nine counts of second-degree sexual abuse of a minor, two counts of third-degree assault, and two counts of possession of <mask>.1 The sexual abuse charges related to acts of penetration and sexual contact with two young girls — eleven-year-old S.A. and her sister, six-year-old D.A. Lee raises four claims on appeal. First, he argues that the State presented insufficient evidence to support his convictions for possession of child pornography. We conclude that the evidence was sufficient to support these convictions. Second, Lee argues that the trial court abused its discretion when it denied Lee’s motion to sever the possession of child pornography charges from the sexual abuse charges. For the reasons explained here, we find no abuse of discretion. Third, Lee argues that his constitutional right to confrontation was violated when the court allowed the State to play a video recording of an interview of D.A. made at a child advocacy center. For the reasons explained here, we conclude that D.A. was available for cross-examination, and admission of the recorded interview therefore did not violate Lee’s right to confrontation. Fourth, Lee argues that the trial court erred in concluding that his prior military adjudication for possession of child pornography qualified as a prior felony for presumptive sentencing purposes. Lee raises two separate issues with regard to this claim of error. Lee first asserts that the federal crime for possessing child pornography is not similar to the Alaska crime for possessing child pornography and therefore cannot qualify as a prior felony conviction under Alaska law. We find no merit to this contention. Lee also argues that military adjudications should not count as prior felony convictions for purposes of Alaska presumptive sentencing law because defendants in military tribunals are not entitled to a unanimous verdict by a jury of their peers. For the


These factors have been adopted by many state courts for analyzing analogous issues arising under state <mask> laws, including courts in Texas which have treated the term "lascivious" as used in the federal statute as synonymous with "lewd" as used in the Texas statute.... We agree with the other Texas courts of appeals which have applied the Dost factors as a framework for analyzing whether images could be considered "lewd" for purposes of the child pornography laws.68 In Tovar v. State ,69 the Fourth Court of Appeals followed the Dost factors, as paraphrased by the Fifth Court of Appeals in Alexander v. State :


*431Mr. Marrero is 33 years old and has had no other contacts with the criminal justice system. He has suffered from severe problems with depression and social anxiety arising from prior physical abuse by his father. Psychiatric evaluations indicated that he posed little risk of committing a contact sex offense. His prospects for committing another <mask> crime, however, were less certain. Mr. Marrero’s counsel argued that the defendant did not view the child pornographic images on his computer for sexual pleasure but rather because he identified with the pain and abuse the children in the videos had suffered. In the court’s view, however, the evidence indicated that the defendant also may well have been motivated at least in part by sexual desire. The evidence indicated that although Mr. Marrero could not be diagnosed with pedophilia, such a diagnosis could also not be ruled out. Mr. Marrero has expressed remorse for his crime. He currently lives and cares for his ailing mother in public housing but would apparently have to move out of his mother’s apartment if he were designated as anything other than a level one offender. He has been complying with the requirements of his supervision.


13. Defendant claims the <mask> possession offenses are too temporally attenuated and substantively different from the molestation offenses to constitute clear and convincing independent corroboration. Defendant points out the sex offenses occurred more than 20 years before the child pornography offenses, and he argues child pornography possession is not sufficiently similar to the child molestation offenses to show any type of propensity or corroborative link. Child pornography is defined broadly under section 311.11(a) as any type of information, data or image that depicts a person under the age of 18 years old engaging in or simulating “sexual conduct” as that term is defined in section 311.4, subdivision (d). (§ 311.11(a).) Material covered under that umbrella would include images or video of two 17-year-old teenagers engaged in intercourse to toddlers engaged in sexual intercourse with adults. All child pornography uniformly victimizes the minor or minors involved—and often does so repeatedly, given vast proliferation of such materials via the internet. Yet, not all child pornography encompassed by section 311.11(a)’s definition involves an adult male lewdly and sexually touching, penetrating and orally copulating (or being copulated by) a female child under the age of 15 years—which is much of the child pornography defendant possessed. It was not just the fact of defendant’s conviction for child pornography possession the factfinder had available to consider as corroborating evidence–there was significant evidence of the amount and nature of the child pornography defendant possessed. The child pornography defendant possessed mirrored the types of offenses Jane alleged defendant committed against her. Defendant possessed child pornography that exclusively depicted female children under the age of 15 years, and many of the admitted images and videos depicted female children ages six to nine years old, either being vaginally penetrated by an adult male penis or the female child was orally copulating an adult male penis. Jane described instances of defendant placing his fingers inside her vagina, rubbing his penis on her vagina and inserting it, and orally copulating her, all


Pursuant to this court’s decision in State v. Crawford (202 Conn. 443), the issuance of an arrest warrant within the time period prescribed by the applicable criminal statute of limitations commences a prosecution for purposes of satisfying that statute of limitations, so long as the warrant is executed without unreasonable delay. The state, on the granting of permission, appealed from the trial court’s dismissal of an information charging the defendant with possession of <mask> in the first degree. In 2009, the police executed a search warrant at the defendant’s residence and seized two of his com- puters. Thereafter, the defendant signed a sworn statement in which he admitted to possessing child pornography. The defendant was not arrested at that time but was informed by the police that he would be arrested as soon as a forensic examination of his computers was completed. In 2011, the defendant moved to California. In 2013, after the state forensic laboratory issued a report confirming the presence of child pornography on the computers, and after the police confirmed the defendant’s address in California, an arrest warrant for the defendant was issued. Between 2009 and 2018, the police, despite having the defen- dant’s cell phone number, never attempted to communicate with the defendant about the status of his case. In 2018, nearly five years after the warrant was issued and more than three years after the applicable statute of limitations ((Rev. to 2009) § 54-193 (b)) purportedly expired, the defendant was arrested and charged with possession of child pornog- raphy in the first degree. Thereafter, the defendant filed a motion to dismiss the information, claiming that the delay in the execution of the arrest warrant was unreasonable under Crawford and, therefore, that his prosecution was time barred. In response, the state argued that, because the defendant had moved to California in 2011, the tolling provision of § 54-193 (c), which extends the time within which an infor- mation may be brought with respect to a person who fled from and resided outside of the state after the commission of the offense, tolled the limitation period within which the warrant could be executed. In granting the defendant’s motion to dismiss, the trial court concluded that the tolling provision was inapplicable because the arrest warrant was issued within the limitation period, the defendant had not fled the state within the meaning of the tolling provision, the defendant met his burden of demonstrating his availability for arrest, and the state failed to meet its burden of demonstrating that the nearly five year delay in the warrant’s execution was not unreasonable under Crawford. On appeal, the state, conceding that the five year delay in the execution of the arrest warrant was unreasonable, claimed that the trial court nevertheless incorrectly concluded that the tolling provision of § 54-193 (c) was inapplicable in light of the fact that the arrest warrant was issued within the limitation period. Held that the trial court correctly concluded that the tolling provision of § 54-193 (c) was inapplicable, as that provision tolls the limitation period solely with respect to the time within which a prosecution may be brought and does not purport to address prosecutions, such as the present one, that have already been brought, at which point there is no need for tolling because the statute of limitations has already been satisfied; moreover, contrary to the state’s assertion that this court’s interpretation of § 54-193 (c) penalizes it for obtaining an arrest warrant within the limitation period, this court’s case law indicates that, so long as the warrant is executed without unreasonable delay, the state can continue to prosecute the defendant as soon as it is able to locate and arrest him. Argued April 29—officially released October 1, 2021**


While in prison, Reddig completed the Missouri Sex Offender Program ("MOSOP"), and was released on parole in 2013. He was allowed to move to Kansas to live with his aunt and uncle. While in an outpatient sex offender treatment program, Reddig admitted to viewing and masturbating to pornography of children as young as four. His treatment was increased, but he continued looking at <mask> for children then as young as age two. Reddig was terminated from outpatient treatment due to concerns that he was going to reoffend.


According to Dr. Proctor, it was more accurate to place Williams in the "moderate" range for reoffending. He stated that Williams has an "ingrained history of sexual interest in children, including prepubescent children," and that the Static-99R did not account for his long history of offending before his nine convictions of sexual-related offenses. Dr. Proctor considered the existence of unreported victims, including Williams' cousin, a situation in which Williams invited children to view pornography with him while he lived with his sister, the fact that he was fired from his student job at the University of Houston for printing a pornographic picture which may have been of a child, and his strong interest in viewing <mask>. Dr. Proctor stated that, considering the "whole picture," he "fe[lt] like there's a level of risk here that isn't fully captured by the Static."


[Defense counsel]: I believe they're about to try to get in the images right now. Right? I don't think they should be on a disk like this. Right? Because they need to be able to be published to the jury via the Elmo like we had the last time and that way- ... [Defense counsel]: -and that way in case they need to be recalled by the jury or referenced in later examinations that way we don't have to bring it up on a computer when the whole worry about attaching this to a computer is that it would be attached to the Internet. [The prosecutor]: May I respond? Your Honor, I brought the computer where we view the <mask> images that has no Internet connection. I have already prepared it and set it up to the Elmo for us to publish it there and when we are done with the trial, I would leave the [sic] it with the bailiff so that he could provide it to the jury if they want to review images again- [The trial court]: But he wants the printed out images for the jury. [Emphasis added]. Following a break, the parties and the trial court continued to discuss the issue. [The trial court]: We're back on the record outside the presence of the jury at 8:50. I asked the state to go ahead and print out copies. It is now 25 minutes later and the state wants to make a record, but I expect and I hope that the copies are printed. Go ahead. [The prosecutor]: Okay. Your Honor, just to clarify on the record. What was happening during this trial of aggravated sexual assault, I was in the process of showing State's Exhibit Number 3 to the witness, Detective Hanner. State's Exhibit Number 3 contains 10 images of child pornography that are relevant to this case. Defense counsel then asked to approach the bench and in approaching the bench, defense counsel stated that they needed to have a copy-the pictures printed out so that they could refer to during the trial and- [The trial court]: Okay. [The prosecutor]: -have access- [The trial court]: Okay. Well, I want to clarify that. [The prosecutor]: -from what I recall. [The trial court]: Well, I want to clarify- [The prosecutor]: Yes, Your Honor. [The trial court]: -that they were not saying they had to have it. They were making that as a suggestion. The record will show what it shows. But it was me, not the defense, who ordered the copies and I didn't clarify that it was in response to defense's request, but it's the way that I want to handle the trial. So continue. [The prosecutor]: Yes, Your Honor. And in doing so after that request-or after that suggestion was made by defense counsel, the state did object to the court's telling the state-requesting the state to print out the images of the child pornography. Section 39.15 of the Code of Criminal Procedure titled discovery of evidence depicting or describing abuse of a minor or sexual conduct by a child or a minor under section C states that a court shall deny any request by a defendant to copy, photo-photograph, duplicate or otherwise reproduce any property or material described by subsection A provided that the state makes the property *63and material reasonably available to the defendant. Under subsection A, Your Honor, the article states that in any manner provided by this article, the court shall allow discovery under article 39.14 of property or material that constitutes child pornography as described by section 43.26. And then also it refers to section 38.071. If I may just refer to that. ... [The prosecutor]: 38.071 talks about testimony of a child who is a victim of the offense. This is the part that talks about any type of evidence that depicts a child talking about sexual assault. One of the offenses listed in that section is aggravated sexual assault of a child so it refers to that one. Your Honor, under 39.15 the state is-we're not able to duplicate the evidence of child pornography. The-if I may suggest what could happen, the disk itself, State's Exhibit Number 3, is supposed to remain in the state's possession or in the court's possession. If the court would like to take possession of State's Exhibit 3 and would like to print out the pictures, then that is something that the state would be in agreement with. But as far as us printing them out or duplicating them as far as 39.15, under that particular law, we cannot duplicate, Your Honor, these images. [The trial court]: Okay. Then you can't put this evidence in this trial. Okay? I've followed your argument and the discovery statute doesn't apply to trial. And 38.071 says this article applies only to a hearing or proceeding in which the court determines that a child younger than 13 would be unavailable to testify. So everything you've given to me, you either reduce it to the format that I require or proceed on the case. It's not coming in. Are you ready? [The prosecutor]: No, Your Honor. We actually need a moment to do that. The State asked the trial court to sign an order that he was requiring the State to print out the images, but the trial court refused. The State also asked the trial court to reconsider the ruling because the only means of viewing the restored digital images was on a computer and the images could not be printed. The trial court summarily dismissed this concern and stated that the digital images could be reproduced by taking a photograph of each digital image and printing it. The State also argued that reproducing the images might violate Section 43.26 of the Texas Penal Code. The trial court recalled that the digital images were viewed in court on the screen during the first trial, but the court was requiring in this trial that they "come off the CD." Without any objection from the defense to the admission of State's Exhibit 3, the trial court ruled that the exhibit and its contents were not relevant because they were not in the format required by the court.2 Further, the trial court prohibited the State from eliciting testimony from Detective Hanner about his observations of the digital images.


We again find Gray instructive. There, a doctor who specialized in psychiatry was charged with multiple criminal counts, including possession of controlled substances ( Health & Saf. Code, §§ 11153, subd. (a), 11350, subd. (a), 11375, subd. (b)(2) ) and <mask> ( Pen. Code, § 311.11 ), as well as sexually exploiting a patient or former patient ( Bus. & Prof. Code, § 729 ). ( Gray , supra , 125 Cal.App.4th at p. 635, 23 Cal.Rptr.3d 50.) The Attorney General appeared at the arraignment without notice and "asked that 'as a condition of release on bail that Dr. Gray's [medical] license be suspended so that he will not be able to prescribe drugs or have access to any kind of patients at all.' " ( Id. at pp. 635-636, 23 Cal.Rptr.3d 50.) The trial court agreed and ordered, as a condition of O.R. bail release, that the defendant not practice medicine. ( Id. at p. 636, 23 Cal.Rptr.3d 50.)


In the instant case, the obvious legislative intent for the application of section 245.00 of the Penal Law was to proscribe <mask> of a public nature or like or similar public-type *410of acts. Whatever the exact scope of application, it cannot be reasonably argued that this section is to apply to performances inside a building which cannot as here, be observed by anyone outside of said building.


A cogent observation by a California court has direct application in this case: ‘ ‘ Our ruling in this case rests on the simple proposition that a dance performed before an audience for entertainment cannot be held to violate the statutory prohibitions of <mask> and lewd or desolate conduct in the absence of proof that the dance, tested in the context of contemporary community standards, appealed to the prurient interest of the audience and affronted standards of decency generally accepted in the community * ° * We shall point out that the performance of such a dance, like other forms of expression or communication, prima facie enjoys protection under the First Amendment of the Constitution of the United States; it loses such protection upon a showing of its obscenity. To show such obscenity, however, the prosecution must introduce evidence that, applying contemporary standards, the questioned dance appealed to the prurient interest of the audience and affronted the standards of decency accepted in the community.” (Matter of Qianmni, 69 Cal. 2d 563, 564 — 65, 567; emphasis supplied).


The court’s attention has been directed to the broad, penetrating pronouncement of the Supreme Court of California in Matter of Lynch (8 Cal. 3d 410). The court there, in declaring cruel and unusual a mandatory life term for a second offense of <mask>, isolated severe tests to be employed in determining whether a punishment is cruel and unusual. They are: (1) whether the punishment fits the offense and the offender, keeping in mind the danger to society and the penological purpose of rehabilitation; (2) comparison of the challenged,punishment with punishment prescribed in the same jurisdiction for more serious offenses; and (3) comparison of the challenged punishment with that prescribed for the same offense in other jurisdictions. The court notes that similar tests were applied in Hart v. Coiner (483 F. 2d 136) holding a mandatory life sentence under the recidivism statute for a bad check offense to be unconstitutional as cruel and unusual.


Upon examination of the cases referred to by the prosecution, this court is still unable to reach a similar conclusion on the issue of sufficiency. The accusatory instruments in the cited cases differ from the case at bar. The dismissed accusatory instrument in People v McNamara (78 NY2d 626 [1991]) alleged that the <mask> took place in the rear seat of a vehicle parked on a street; the other accusatory instruments in McNamara alleged that the sexual acts were committed on a public residential street and were likewise dismissed. The Court’s basis for affirming these dismissals is that these accusatory instruments failed to allege facts supporting the conclusion that the acts complained of occurred in public places. (Id. at 630.) So while the prosecution argues that the location here, as described in their papers, meets the legal standard, the Court in McNamara requires the accusatory instrument to include more information for sufficiency purposes: the accusatory instrument and the accompanying supporting deposition must include the facts that exist to establish the statutory element that the acts were committed in a “public place” (id.), or private premises under circumstances in which he may readily be observed from either a public place or from other private premises, and with intent that he be so observed. (Penal Law § 245.00 [b].)


This prosecution of the defendant for the crime of <mask> pursuant to section 1140 of the Penal Law had its inception on March 12, 1965, at approximately 9:30 p.m., when Detectives George F. Burlison and James Clark arrived at the defendant’s home in Wantagh, Long Island, New York. They testified in substance that the defendant’s wife Wilma J. Frank answered the door — that they identified themselves as detectives from the Seventh Squad and asked if they could speak to the defendant alone. They further testified that they advised the defendant that they were investigating a complaint of indecent exposure, and that the defendant accompanied them to the Seventh Precinct located at Merrick Boad and Neptune Boulevard, Seaford, where they arrived with him at about 10 :00 p.m. At the precinct they advised the defendant that they had been given a license plate number by two girls relative to an exposure inci*562dent near Jerusalem Avenue Junior High School, which checked out to his name and address. Detective Burlison testified that the defendant then admitted that he was the one who did it and the detective then asked the defendant if he wanted an attorney hut that the defendant said “ No ”. The defendant then telephoned his wife after which in response to Detective Burlison’s questions he gave a statement, of which Detective Burlison typed approximately 80% with the remainder being typed by Detective Arthur Holder — this latter part being the incriminating portion of said statement (People’s Exh. I). Detective Clark did not participate in the taking of the defendant’s statement having’ left the defendant in Detective Burlison’s custody after their arrival at the precinct. Defendant’s statement of approximately one and one-quarter pages in length was signed by the defendant and witnessed by Detectives Burlison and Holder.


Topless appearances are a form of expression explicitly excluded from the broad protection of the First Amendment. (Matter of J.B.H. Rest. v. New York State Liq. Auth., 28 A D 2d 521, affd. 21 N Y 2d 846.) “Petitioner’s reliance on the constitutional privilege of free expression * * * is without substance.” The court opined that the undeclared purpose of featuring topless waitresses had nothing to do with self-expression, but was a ‘ ‘ bald attempt to profit on <mask> and drink.”


*119In 1983, the Legislature considered, and passed, a totally revised version of the <mask> laws. Insofar as possible, it made the statute gender-neutral, i.e., applicable to both men and women, and banned public nudity by persons of either sex. But the new statute retained the sexually based discrimination in respect to breasts, and continued, in the very same language, to forbid only women from exposing their breasts in public.4


Since Griswold v Connecticut (381 US 479 [1965]), funda*122mental rights of privacy and liberty which individuals have claimed to "emanate” from the Constitution have expanded significantly. In 1986, Robert Hollman, who had appeared nude on Jacob Riis Beach in Queens, and who had been convicted of a violation of the present <mask> law (Penal Law § 245.01), tried to persuade thfe New York Court of Appeals that he held a fundamental constitutional right to appear nude in public. Hollman’s arguments to that court at the time are virtually identical to the defendants’ argument to this court now: to wit, that nudism promotes physical and psychological health, heightened awareness of human potentials, and freedom from the repressions of Puritanism and the constraints of clothing.


. The court acknowledges here that, notwithstanding the disclaimers in the opinion of the Court of Appeals in the Hollman case (68 NY2d 202), the purpose of the <mask> law is not only to provide general public access to recreational areas, but it is also to set a standard of morally decent behavior. It is because public nudity is not morally decent and acceptable that families stayed away from Jacob Riis Beach. Reestablishment of the moral standards on public nudity, in effect, returned the beach to the general public, and specifically, to family use. Therefore, there is no question that the indecent exposure laws enact moral judgments which serve to benefit the common good. Law and morality are not so separate when the public order must be served. Moreover, it is clear that under the New York Constitution, an advocate of public nudism cannot be a law unto himself.


During the course of the trial the theory of plaintiff’s libel cause of action shifted from an emphasis upon the alleged <mask> of her likeness in these sketches to the claim that they were obscene and suggestive in their surroundings and not fair representations of the character she portrayed in the motion picture. The original complaint included both claims, but the ‘ ‘ indecent exposure ’ ’ count was dropped when it developed that in several of plaintiff’s former pictures as well as in a poster photograph taken at the conclusion of this picture for the express purpose of advertising it she had exposed her chest in equal or greater degree.


14. when she was between the ages of 10 and 15 years old. The child pornography defendant possessed was highly consistent with the sex offenses against Jane in terms of the age and gender of the victims, the age (adult) and gender of the perpetrators (male), and the types of acts committed—vaginal penetration and oral copulation. Due to these significant parallels, the child pornography possession offenses had strong corroborative value with respect to Jane’s allegations. Defendant’s reliance on People v. Earle (2009) 172 Cal.App.4th 372 does not persuade us differently. There, the court concluded a misdemeanor <mask> charge could not rationally support an inference the defendant had a propensity to commit a subsequent sexual assault. (Id. at pp. 396–400.) The court reasoned the two sex acts were different, and the “propensity to commit one kind of act cannot be supposed, without further evidentiary foundation, to demonstrate a propensity to commit a different act.” (Id. at p. 399.) Unlike the differences between indecent exposure and sexual assault at issue in People v. Earle, there is a recognized nexus between pedophilia and child pornography. (See People v. Memro (1995) 11 Cal.4th 786, 864–865 [possession of child pornography evidence of the defendant’s intent to molest young boys], overruled on a different ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2; see also United States v. Brand (2d Cir. 2006) 467 F.3d 179, 201 [“Both Congress and at least one other court have concluded that possession of child pornography signals the abnormal sexual attraction to children underlying a person’s motivation to commit sexual crimes against children.”], abrogated on another ground by United States v. Cabrera (2021) 13 F.4th 140, 147.) Beyond defendant’s admission to police officers, the child pornography affirmed defendant’s sexual interest in children. (See, e.g., United States v. Bentley (N.D.Iowa 2007) 475 F.Supp.2d 852, 858 [difference between prior sexual assaults of children and current prosecution for possessing child pornography “are not as great as they might seem at first glance” because “[t]he child pornographer, like the child rapist, displays a sexual interest in children”].) That fact is relevant to the allegation that he sexually


The alleged <mask> by defendant, committed in the presence of complainant’s mother hours before the acts here *108complained. of happened, and which defendant denies, was improperly received. This testimony is no part of the res gestae; and if it is developed as a specific wrong by the defendant to show his bad character, such evidence is inadmissible. (People v. Richardson, 222 N. Y. 103.) It is error that is prejudicial and harmful. We cannot disregard it (see section 542, Code Criminal Procedure) ; and it calls for a reversal and new trial.


Lonnie J. Arnold was convicted following a jury trial of aggravated <mask>, MCL 750.335a(2)(b), and indecent exposure by a sexually delinquent person, MCL 750.335a(2)(c). He was sentenced by the Monroe Circuit Court, Michael A. Weipert, J., as a fourth-offense habitual offender to 25 to 70 years in prison for indecent exposure by a sexually delinquent person; his sentence for aggravated indecent exposure was later set aside. At sentencing, Arnold argued that MCL 750.335a(2)(c) required a sentence of “1 day to life” as provided in the statute, but the trial court stated that it was prohibited from imposing a sentence with a minimum penalty of a term of years and a maximum penalty of life. The court’s minimum sentence of 25 years was calculated to fit within the sentencing guidelines range. Arnold appealed his sentence. The case eventually made its way to the Supreme Court, which held that the “1 day to life” sentence for indecent exposure as a sexually delinquent person in MCL 750.335a(2)(c) was an alternative to the other sentences provided in MCL 750.335a and was not modifiable. People v Arnold, 502 Mich 438 (2018) (Arnold I). The Supreme Court remanded the case to the Court of Appeals to resolve the effect of the sentencing guidelines on the sentencing scheme for sexually delinquent persons in MCL 750.335a(2)(c). On remand, the Court of Appeals, GLEICHER, P.J., MURRAY, C.J., and CAVANAGH, J., concluded that the sentencing guidelines provide another sentencing alternative for persons convicted of indecent exposure as sexual delinquents. Accordingly, a sentencing court can sentence such defendants to either “1 day to life” or to a sentence premised on the guidelines. Because the trial court was not aware of this range of sentencing options, the Court of Appeals vacated Arnold’s sentence and remanded to the trial court for resentencing. 328 Mich App 592 (2019). Arnold sought leave to appeal in the Supreme Court, and the Court granted his application for leave to appeal. 505 Mich 1001 (2020).


MCL 750.335a prohibits <mask> and aggravated indecent exposure, establishes penalties for those offenses, and establishes an alternative sentence that is available when a defendant commits one of those offenses while being a sexually delinquent person. In Arnold I, the Supreme Court interpreted the statute to allow a defendant convicted of an indecent-exposure offense as a sexually delinquent person to be sentenced to either a nonmodifiable sentence of “1 day to life” under MCL 750.335a(2)(c) or to the appropriate penalty in MCL 750.335a(2)(a) or (b). Under MCL 777.16q of the sentencing guidelines, MCL 750.335a(2)(c) is a Class A felony punishable by a statutory maximum sentence of life imprisonment. The guidelines grid for Class A felonies at MCL 777.62 lays out a range of possible minimum sentences for term-of-years sentences, depending on how the guidelines are scored, in contrast to the “1 day to life” sentence in MCL 750.335a(2)(c). MCL 777.16q and MCL 777.62 thus appear to allow for sentences that clash with the “1 day to life” sentence in MCL 750.335a(2)(c). This apparent conflict required a determination of whether the guidelines create a substantive-penalty provision for MCL 750.335a(2)(c) that authorizes the courts to impose that penalty to the exclusion of the penalty in MCL 750.335a(2)(c). The guidelines do not purport to trump the substantive penalties in the statutes that establish the criminal offense; rather, in MCL 769.34(2)(a), the Legislature has subordinated the guidelines to the applicable penalty provisions in the substantive criminal statutes. Accordingly, because MCL 750.335a(2)(c) establishes a mandatory minimum sentence of one day and makes no allowance for variances, the court must impose the sentence in MCL 750.335a(2)(c) or the applicable alternative in MCL 750.335a(2)(a) or (b). The only possible textual basis for a term-of-years sentence for MCL 750.335a(2)(c) is a reference in MCL 777.16q to “Life” as the statutory maximum sentence for that offense. But nothing in the text indicates that the term “Life” can encompass any term of years, such as the 70-year maximum sentence imposed by the trial court in this case. Interpreting “life” to mean “life or any term of years” would cut against the meaning of life imprisonment as well as caselaw treating life sentences and term-of- years sentences as mutually exclusive. Further, while “life” might be the only possible maximum sentence, it is hard to see how MCL 777.16q imposes this sentence. Such an interpretation would require a determination that the statute implicitly referred to in MCL 777.16q in the “Stat Max” (statutory maximum sentence) column is MCL 777.16q itself, rather than the substantive criminal statute. This conclusion is belied by the fact that all of the other offenses in the relevant sentencing grids in the guidelines indicate that the statute referred to in the “Stat Max” column is the relevant Penal Code statute listed in the grid. Thus, the most natural reading of MCL 777.16q confirms that MCL 750.335a(2)(c) establishes the substantive penalty for indecent exposure as a sexually delinquent person. Further, the guidelines are part of the Code of Criminal Procedure, MCL 760.1 et seq. The term “procedure” is usually used in contradistinction to “substantive”; the substantive criminal law generally encompasses the definitions of crimes and the penalties for the crimes. “Procedure,” by contrast, is the law governing the series of procedures through which the substantive criminal law is enforced. The titles of the Penal Code, MCL 750.1 et seq., and the Code of Criminal Procedure support these observations. The Penal Code’s title states that the act’s purpose is “to define crimes and prescribe the penalties therefor . . . ,” while the title of the Code of Criminal Procedure provides that its purpose is to “codify the laws relating to criminal procedure.” The contents of the Code bear this out, as none of its provisions involves the direct creation of crimes or the imposition of core penalties. Therefore, neither MCL 777.16q or MCL 777.62 mandates a particular sentence or range of sentences, nor do they establish discrete penalties or supplant the penalties specified in the substantive criminal statute. For these reasons, MCL 777.16q and MCL 777.62 cannot be read to authorize sentence ranges that are an alternative to the penalty in MCL 750.335a(2)(c). Therefore, the reference in MCL 777.16q to MCL 750.335a(2)(c) is nugatory, and MCL 777.62 does not apply to individuals convicted under MCL 750.335a(2)(c). Although the general rule when interpreting a statute is to give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute nugatory, this principle is not absolute, and in this case must give way to the unmistakable meanings of the statutes. The only way to harmonize the statutes is to interpret the guidelines as an alternative penalty provision, but this interpretation is not supported by the text. Because the guidelines do not apply, Arnold I controls the sentencing of individuals convicted of an indecent- exposure offense as a sexually delinquent person under MCL 750.335a(2)(c). A court may impose the applicable penalty provision in MCL 750.335a(2)(a) or (b), along with any applicable sentencing enhancements, or the “1 day to life” sentence in MCL 750.335a(2)(c). Arnold was not sentenced to either of these options because his sentence reflects the application of the sentencing guidelines. Because the guidelines are not applicable, he was entitled to resentencing.


Justice CLEMENT, joined by Chief Justice MCCORMACK and Justice CAVANAGH, concurring in the judgment, agreed that the trial court’s sentence of 25 to 70 years was invalid because Arnold had to be sentenced either to a term of years under MCL 750.335a(2)(b) (as potentially enhanced by being a fourth-offense habitual offender) or to a “1 day to life” sentence under MCL 750.335a(2)(c). Although the trial court had complied with the sentencing guidelines, the guidelines could not authorize Arnold’s sentence because to do so would indirectly amend MCL 750.335a in violation of Const 1963, art 4, § 25. Rather than address the constitutional issue, the majority instead tried to uncover the ordinary meaning of the sentencing guidelines. MCL 750.335a(2)(c) provided a “1 day to life” sentence, while the term-of-years sentence option in MCL 750.335a(2)(b) allowed the trial court to sentence Arnold as a fourth-offense habitual offender to up to a 15-year maximum sentence. By contrast, under MCL 777.16q and MCL 777.62 of the guidelines, Arnold’s recommended minimum sentence range as a fourth-offense habitual offender was between 135 and 450 months, and the trial court sentenced him to a minimum sentence of 25 years. The likely reason for these disparate outcomes was a mistake due to the failure of the Legislature’s institutional memory between the enactment of MCL 750.335a in 1952 and the enactment of the guidelines in 1998. When enacting the guidelines, the Legislature seemingly concluded that the “1 day to life” language in MCL 750.335a was equivalent to “life or any term of years” and therefore listed <mask> by a sexually delinquent person as a Class A felony under the guidelines. The majority concludes that the ordinary meaning of MCL 777.16q is that it does not mean what it says, because interpreting the statute’s reference to “Life” as “life or any term of years” requires a series of inferences. However, such inferences are commonplace throughout the guidelines. Rather, the Court had to negate the expression of legislative intent because Michigan constitutional law prevents the adoption of a provision of the Code of Criminal Procedure (i.e., MCL 777.16q) from indirectly amending a provision of the Penal Code (i.e., MCL 750.335a(2)(c)). Under the Reenact-Publish Clause of the Michigan Constitution, Const 1963, art 4, § 25, changes to the law must be in the form of redline edits, i.e., in order to change the law, the Legislature must edit the text rather than enact some inconsistent provision. Therefore, the instructions in the Code of Criminal Procedure for how to sentence someone convicted of an indecent-exposure offense cannot indirectly change the sentencing options in the Penal Code. Justice CLEMENT agreed however with the majority’s conclusion that Arnold was entitled to resentencing to either a term-of-years sentence that complied with MCL 750.335a(2)(b) or to a “1 day to life” sentence under MCL 750.335a(2)(c). Michigan Supreme Court Lansing, Michigan Chief Justice: Justices:


Arnold I, 502 Mich at 446. The Court of Appeals set aside defendant’s sentence for aggravated <mask> for reasons that are not relevant to the present appeal. Id. at 446 n 3. Id. at 449 (“The sentencing guidelines list indecent exposure by a sexually delinquent person as a Class A felony, MCL 777.16q, and the proposed scoring of defendant’s guidelines variables placed him in cell F-III of the Class A grid, which provides for a minimum sentence of 135 to 225 months, MCL 777.62, the high end of which was then doubled to 450 months because defendant was a fourth-offense habitual offender, MCL 777.21(3)(c).”). Id. at 482-483. Id. Id. at 479-480, citing 2005 PA 300. Arnold I, 502 Mich at 469-471.


The majority insists that I am “simply incorrect” to question whether “the basis for [its] holding” was in our grant order. We granted leave on “whether <mask> by a sexually delinquent person is a distinct felony ‘enumerated’ in the Michigan Penal Code and subject to the sentencing guidelines, or whether the offense is subject to the sentencing guidelines regardless because it is set forth in MCL 777.16q as a listed felony.” People v Arnold, 505 Mich 1001, 1001 (2020). The majority’s conclusion that MCL 777.16q does not purport to express a legislative intention of a substantive punishment for this offense is not, in my view, responsive to that question, and even if a very broad interpretation of our grant order encompassed the majority’s reasoning, nothing like that reasoning can be found anywhere in the parties’ briefing. I do not believe we are obliged to confine ourselves to the parties’ briefs where neither party has presented the Court with arguments the Court believes are correct—we ought not allow poor party presentation to compel us to make bad law—but where the parties’ presentation of the case presents a legally proper solution, I think it is preferable for us to address the case as it has been presented.


In the present case, both victims were approximately the same age at the time of the events, and both were in a father-daughter relationship with defendant. The evidence supports a finding that the charged and the uncharged acts were part of defendant’s common plan or system to act out sexually with preteen girls living in the same household, over whom he had parental authority. As in Sabin, there were also some differences between the acts. The prior bad acts against LL involved incidents of <mask>, whereas the charged acts in this case involved intercourse and sexual contact. There was no evidence that LL was warned not to disclose the acts, whereas the victim in this case was told not to say anything. It appears that others persons were present in the home during two of the three indecent exposure incidents with LL, whereas defendant was alone with the victim during the charged acts. However, these differences do not compel the conclusion that the charged and the uncharged acts were so dissimilar that they precluded admission for purposes of showing a common plan or system. As in Sabin, reasonable persons could disagree concerning whether the charged acts and the prior bad acts were sufficiently similar to show (by probability) the existence of a scheme, plan, or system that tends to prove (by probability) that the charged acts were committed. Because the evidentiary issue was a close one, the trial court did not abuse its discretion in admitting the evidence of defendant’s prior acts of indecent exposure. [Smith, 282 Mich App at 196-197.]


The court received, without objection, a Presentence Investigation Report (“PSIR”) that recounts Hamber’s criminal history as well as over 200 disciplinary violations while he was incarcerated. Hamber has convictions for raping a 12-year- old, residential burglary, commercial burglary, in-custody battery on two separate occasions, and also first-degree assault and terroristic threatening regarding an incident where he threw urine on a deputy and threatened the deputy’s family. Included among Hamber’s disciplinary violations while in state custody are: 29 instances of making verbal or written threats, 5 instances of attempted assault or threatening jail staff, 2 instances of battery as to an inmate, 4 instances of battery as to jail staff, 9 instances of battery resulting in injury as to jail staff and/or possession/introduction of a firearm or weapon, an aggravated battery, 15 instances of <mask>, 9 instances of throwing or ejecting fluids or excrement, another instance of striking a person with bodily fluid, 8 instances of destruction of state property, 7 instances of tampering with or blocking a lock, and breaking into another’s room. Hamber was released from prison on October 29, 2018.


time of the prior evaluation. He had similar delusions and was religiously preoccupied, but his symptoms were toned down. He still did not have appropriate insight into his mental illness and did not acknowledge positive aspects of adhering to medication management. He adamantly asserted, “ ‘I don’t need psychiatric medication. It’s breaking and killing me.’ ” Fekadu has been prescribed several different medications for his schizophrenia with varying degrees of success. He has a history of medication noncompliance and intermittently asks to be taken off his medications, including those for his medical conditions. Dr. Kodzic noted that Fekadu’s refusal to take medication for high blood pressure and diabetes is concerning because these conditions can lead to significant medical complications. Dr. Kodzic stated that Fekadu works against his treatment team and is not forthcoming about his symptoms. For example, Fekadu told a staff member in 2018 that he was hearing the voice of an evil woman, but he did not want to tell his doctors because he thought they would increase his medications. He previously assaulted a psychiatrist, which resulted in his transfer to his current facility. The recent letter to his psychiatrist was threatening in that it said that God would punish the psychiatrist. Dr. Kodzic indicated that Fekadu’s belief that he is the hand of God raises the concern that Fekadu would act aggressively in the future, particularly if he heard a voice that he believed to be God’s. Fekadu engaged in violent acts in 1995, 2011, 2014, 2015, and 2017. He also behaved in a sexually inappropriate manner toward his psychologist and had a few <mask> incidents in 2015. Dr. Kodzic took these


they are challenging a particular recall or dismissal of sentence, dismissal and sealing, or redesignation. The prosecution shall inform the court when they are not challenging a particular recall or dismissal of sentence, dismissal and sealing, or redesignation. [¶] . . . [¶] (d) If the prosecution does not challenge the recall or dismissal of sentence, dismissal and sealing, or redesignation by July 1, 2020, the court shall reduce or dismiss the conviction pursuant to Section 11361.8.” DOJ identified defendant as potentially eligible for redesignation of his sentence to a misdemeanor pursuant to section 11361.8. On June 29, 2020, the People filed a challenge to the redesignation, arguing defendant has a prior conviction of a designated felony requiring registration, namely Penal Code section 314, <mask>, and is therefore ineligible for redesignation. But the People mistakenly filed the challenge in another of defendant’s criminal cases, NCR93900, instead of the correct case, NCR73171.2 The other case did not involve a marijuana-related conviction. The People served both defendant and his counsel of record at their last known addresses. On July 29, 2020, the People filed an amended challenge to redesignation, reasserting the argument that defendant is ineligible for redesignation, and again serving both defendant and his counsel of record at their last known addresses. The trial court accepted the People’s challenge as timely and after receiving briefing on the issue, denied the redesignation. The trial court found that defendant received actual notice of the People’s challenge, albeit for the wrong case, and the People’s error did not divest the trial court of jurisdiction. DISCUSSION Defendant argues the July 1, 2020 deadline under section 11361.9 established a statute of limitations before which the People were required to file a challenge in the


Defendant is charged in Count II of the information with the crime of <mask> to a Minor, a violation, on or about a period of time between January 1, 2017, and April 30, 2018. In order to find the Defendant guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of a specific act or acts constituting the crime within the period alleged. Also, in order to find the Defendant guilty, you rnust unanimously agree upon the commission of the same specific act or acts constituting the crime within the period alleged. It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.


[2.] Did not the court err by imposing separate sentences of guilt with no further penalty for the charges of theft by unlawful taking, unlawful restraint, <mask>, terroristic threats, indecent assault[,] and corruption of minors where, pursuant to 18 Pa.C.S.[A.] § 3502(d), a defendant sentenced for a burglary conviction may not be separately sentenced for offenses “which it was his intent to commit after the burglarious entry?”


Pursuant to Arkansas Code Annotated section 5-14-110(a)(2)(A), a person commits the offense of sexual indecency with a child if, "[w]ith the purpose to arouse or gratify a sexual desire of himself or herself or a sexual desire of another person, the person purposely exposes his or her sex organs to another person who is less than fifteen (15) years of age." Krol raises two arguments challenging the circuit court's denial of his motion for directed verdict.2 He argues that the circuit court applied an incorrect interpretation of Arkansas Code Annotated section 5-4-110(a)(2)(A) when it denied his motion and urges us to adopt an interpretation of the statute that requires proof that the child victim consciously observed the exposure of the defendant's genitals. We decline to do so because the plain language of the statute does not contain any explicit requirement that the child observe the act. This is in contrast to other criminal statutes that contain an awareness element, such as Arkansas Code Annotated section 5-14-112(a)(2), which states that "[a] person commits <mask> if, with the purpose to arouse or gratify a sexual desire of himself or herself or of any other person, the person exposes his or her sex organs ... [u]nder circumstances in which the person knows the conduct is likely to cause affront or alarm." We have repeatedly rejected reading additional requirements into a statute that were not placed there by the legislature. Heape v. State , 87 Ark. App. 370, 374-77, 192 S.W.3d 281, 284-86 (2004) (rejecting, based on the plain meaning of the word "solicit" in subsection (a)(1), Heape's argument that the victim must be shown to have believed the sexual solicitation was genuine and not a mere "rhetorical question"); Renderos v. State , 92 Ark. App. 293, 293-95, 213 S.W.3d 37, 38-39 (2005) (rejecting Renderos's argument "that the statute should be read ... as to require that inducement be expressed verbally where there is evidence of unambiguous nonverbal inducement").


The affidavit also included DHS's history with the family beginning in March 2011 with a true finding for environmental neglect; May 2011 true findings of EP and another sibling having been victims of sexual contact and <mask> by a man who was not their parent; February 2012 true finding that AP and EP were victims of sexual contact and sexual penetration by two men who were not their fathers; true finding of sexual contact and sexual penetration in January 2016 listing AP as the alleged victim and the offender as a man who is not her father; current investigation open for inadequate supervision listing CP as the alleged victim and an unknown offender; open investigation for AP, EP, and CP as the alleged victims and appellants as the offenders; and several unsubstantiated reports of environmental and/or educational neglect beginning in 2008.


Horton further testified that there were true findings against Charity of striking a child with her fist, striking a child on the head or face, sexual contact, sexual exposure, pornography and exposure to live sex acts, and <mask>. She also said that Charity had not followed the recommendations of the psychological evaluation and that she did not successfully complete her individual counseling. No documentation of criminal charges or a psychological evaluation were accepted as evidence. On cross-examination, Horton could not say the dates of the true findings other than they were in November 2017.


Lynch describes three "techniques" to determine whether a sentence is so disproportionate to the crime as to constitute cruel or unusual punishment. ( Lynch, supra, 8 Cal.3d at p. 425, 105 Cal.Rptr. 217, 503 P.2d 921.) We first consider "the nature of the offense and/or offender, with particular regard to the degree *443of danger both present to society." ( Ibid. ) Next, we compare the sentence to "punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious." ( Id. at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921.) Finally, we compare the sentence "with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision." ( Id. at p. 427, 105 Cal.Rptr. 217, 503 P.2d 921.) The weight afforded to each prong may vary by case. (See People v. Dillon (1983) 34 Cal.3d 441, 479, 194 Cal.Rptr. 390, 668 P.2d 697 [relying heavily on first prong] ( Dillon ).) "Disproportionality need not be established in all three areas." ( People v. Norman (2003) 109 Cal.App.4th 221, 230, 134 Cal.Rptr.2d 652.) *724Applying this test, the California Supreme Court has found unconstitutional a life sentence for a second offense of <mask> ( Lynch, supra, 8 Cal.3d at p. 413, 105 Cal.Rptr. 217, 503 P.2d 921 ); lewd and lascivious touching of "a child's private parts" in violation of section 288 ( Rodriguez, supra, 14 Cal.3d at pp. 654-656, 122 Cal.Rptr. 552, 537 P.2d 384 ); and felony-murder by a 17-year-old defendant ( Dillon, supra, 34 Cal.3d at pp. 482, 489, 194 Cal.Rptr. 390, 668 P.2d 697 ).


The San Mateo District Attorney charged Dawkins with multiple crimes as a result of these incidents. Based on the incident involving E., Dawkins was charged with a felony count of stalking, a felony count of making criminal threats, two felony counts of lewd or lascivious acts upon a child, and one *703misdemeanor count of false imprisonment.1 Based on the incident involving A., Dawkins was charged with a felony count of <mask>.2 Dawkins was also alleged to have four prior strike convictions-one in 1987 for burglary, one in 1991 for robbery, and two in 1995 for rape-and to have served four prior prison terms, three for the strike convictions and one for an October 2013 indecent-exposure conviction.3 At trial, the parties stipulated that, in addition to the October 2013 conviction, Dawkins had also been convicted of indecent exposure around April 2008 and around December 2008.


The jury found Dawkins guilty on all counts, and the trial court found true the prior-conviction allegations. The court then granted Dawkins's Romero motion in part, striking the burglary and robbery convictions and one of the rape convictions. Dawkins was sentenced as a second-strike offender to a total term of 25 years in prison, composed of a six-year term for the count of making criminal threats, three consecutive 16-month terms for the two counts of lewd acts and the count of <mask>, and three consecutive five-year terms for the prior strikes. Terms for the remaining counts and enhancements were imposed and stayed, except that the prior-prison-term findings were also stricken.


Here, the plain language of section 783 provides for venue in San Mateo County. At the preliminary hearing, two BART police officers testified that trains on the Pittsburg-Bay Point line generally originate in San Mateo County. Although the officers acknowledged the possibility that a train could be replaced somewhere along the line due to a mechanical issue or some other problem, their testimony about the normal origin point of Pittsburg-Bay Point trains constituted sufficient evidence that the train on which Dawkins committed <mask> "passe[d]" "through, on, or over" San Mateo County "in the course of its voyage or trip."4 ( § 783.) Thus, contrary to Dawkins's suggestion otherwise, there is no need to construe the statute's reference to trips "terminat[ing]" in a superior court's jurisdiction to include trips originating there. ( Ibid. )


Framing the question as whether the Ventura County offenses could "be said to have occurred 'on a ... motor vehicle' within the meaning of section 783," the Supreme Court agreed with the People that venue did not lie in Los Angeles County because "the offenses were committed outside the vehicle at *706an identifiable spot along the highway." ( Bradford, supra , 17 Cal.3d at p. 15, 130 Cal.Rptr. 129, 549 P.2d 1225, italics added.) Construing section 783"[i]n light of the federal constitutional right to a trial by a jury drawn from the vicinage in which the crime occurred,"5 the Court determined that " section 783 must be held inapplicable where, as here, the location of the crime is readily identifiable." ( Bradford , at p. 17, 130 Cal.Rptr. 129, 549 P.2d 1225.) *373Dawkins seizes on this broadly worded holding, contending that under Bradford section 783 does not apply because it is clear he committed <mask> somewhere in Contra Costa County. But in Bradford the offenses occurred outside the car, and thus section 783 did not apply by its terms. ( Bradford, supra , 17 Cal.3d at p. 15, 130 Cal.Rptr. 129, 549 P.2d 1225.) In contrast, the offense here took place on a train that passed through San Mateo County on its trip. Although in Bradford the fact that the offenses occurred in a "readily identifiable" location also supported the result, the holding was consistent with section 783 's language. ( Bradford , at pp. 15, 17, 130 Cal.Rptr. 129, 549 P.2d 1225.) In other words, the Supreme Court did not have to interpret section 783 in a manner that contradicted its plain meaning, as Dawkins would have us do here.


In 2013, appellant was convicted of possession of methamphetamine ( Health & Saf. Code, § 11377, subd. (a) ) and was sentenced to 32 months in state prison. He was scheduled to be released on parole in November 2017. While serving his sentence in San Diego County, he was charged in a January 2014 rules violation report (RVR) with violating prison rules by committing *752the offense of felony <mask> (§ 314, subd. (1)).3 The matter *347was referred to the San Diego County District Attorney for possible investigation and prosecution ( Cal. Code Regs., tit. 15, § 3316, subd. (a) ). Pursuant to appellant's request, his RVR disciplinary hearing was postponed pending the outcome of the referral for criminal prosecution. (Id. , subd. (c).)


In November 2014, appellant was convicted in San Diego County Superior Court of felony <mask> and was sentenced to an additional and consecutive 32-month prison term. In April 2015, following his RVR disciplinary hearing, he was found guilty of violating prison rules by committing the felony indecent exposure offense. He was scheduled to be released on parole in November 2017.


To prove that appellant's commitment offense of felony <mask> qualified him for MDO treatment, the People offered copies of his CLETS4 report and the RVR regarding the offense.5 The CLETS report includes *753appellant's 2014 conviction of the current offense, and his prior convictions in 2003 on one misdemeanor count of indecent exposure (§ 314) and two counts of committing a lewd act on a child under the age of 14 (§ 288, subd. (a)).


At the MDO hearing, the trial court asked the prosecutor to explain his theory that appellant's offense of felony <mask> was a qualifying offense under the MDO law. The prosecutor offered that "[t]he actions of the patient [sic ] were obviously very threatening to [Officer M.M.]" as reflected in the RVR. The court responded, "Standing there naked and masturbating." The prosecutor replied, "It sounds kind of threatening to me, your Honor. She indicates her fear in that, your Honor, too."


*350To commit appellant for MDO treatment as a condition of his parole, the trial court had to find beyond a reasonable doubt that the offense for which he was sentenced to prison-felony indecent exposure-is a qualifying *756offense. ( § 2962, subd. (e).) As relevant here, a person is guilty of misdemeanor <mask> if he "willfully and lewdly ... [¶] 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby ...." (§ 314.) The crime becomes a felony where, as here, the defendant has a prior conviction for indecent exposure under subdivision (1) of section 314, or a prior conviction for committing a lewd act on a child under the age of 14 in violation of section 288. (Ibid. )


The trial court found that appellant's felony <mask> offense qualified him for MDO treatment because it was "[a] crime in which the perpetrator expressly or impliedly threatened another with the use of force or violence likely to produce substantial physical harm in such a manner that a reasonable person would believe and expect that the force or violence would be used." ( § 2962, subd. (e)(2)(Q).) In making this finding, the court primarily relied on Officer M.M.'s statements that "I fear for my safety with [appellant] on the yard, due to his stalking behavior" and that "[h]is progression from stalking to masturbating directly at me leads me to fear he may take it further."


Appellant's conviction of felony <mask>, however, does not encompass the alleged "stalking behavior" he exhibited prior to his commission of the offense. As we have previously recognized, "other crimes the prisoner may have committed in perpetrating the commitment offense are irrelevant to the determination whether that offense meets the criteria for MDO treatment." ( People v. Kortesmaki (2007) 156 Cal.App.4th 922, 926-927, 67 Cal.Rptr.3d 706, citing People v. Green (2006) 142 Cal.App.4th 907, 913, 48 Cal.Rptr.3d 464.)


In any event, the evidence is insufficient to prove that appellant's felony <mask> offense involved a threat to use force or violence likely to produce substantial physical harm. Appellant walked out of his cell naked and masturbated while looking at a female correctional officer who stood a substantial distance away from him in a secure location. Earlier that morning, he was twice seen briefly staring at the same officer. On each occasion, he was ordered to cease his offensive behavior and he immediately complied. Moreover, there is no evidence that appellant ever attempted to make physical contact with Officer M.M. or that he exhibited aggressive, forceful, or violent behavior toward her or anyone else.


The trial court nevertheless reasoned that appellant intended to convey such a threat to Officer M.M. because men who expose themselves in the manner he did "are showing the woman ... what organ you are going to use on her." The court also acknowledged, however, that men who commit such acts may "just [be] pleasuring [themselves] because there's a female in the vicinity." As our Supreme Court has recognized, the crime of <mask> "invariably entails no physical aggression or even contact ...." ( In re Lynch (1972) 8 Cal.3d 410, 430, 105 Cal.Rptr. 217, 503 P.2d 921.) Moreover, " '[i]t is generally agreed that the exhibitionist does not seek further contact with the victim; on the contrary, he is afraid of it. There is usually some appreciable distance which separates the exhibitionist and the object and rarely does it occur when the parties are in close proximity.' [Citation.]" ( Ibid. ) This is such a case.


An RVR is issued to document serious inmate misconduct that is a violation of law or is not minor in nature. (In re Gray (2007) 151 Cal.App.4th 379, 389, 59 Cal.Rptr.3d 724.) An RVR triggers certain procedural protections and can result in various forms of discipline for the offending inmate. (See Cal. Code Regs., tit. 15, §§ 3313 -3316.) The offense of felony <mask> constitutes a serious violation of the rule that inmates shall not engage in illegal sexual acts. (Id., § 3007.)


Not every interpretation of every item of evidence discussed in Judge Goetz's description of her findings is necessarily binding under the doctrine of issue preclusion. Only findings on issues that are "not '... unnecessary' " to the court's decision are binding. ( Lucido, supra, 51 Cal.3d at p. 342, 272 Cal.Rptr. 767, 795 P.2d 1223 [fact that the prosecution failed to prove <mask> as a basis for a probation violation was " 'necessarily decided' " even though a probation violation was established through other, admitted conduct].)


After reviewing the additional information, Dr. Jeko revised her evaluation to conclude Morrison is an SVP. The complete record revealed Morrison had close to 30 separate 115 Rule violations dating from 2002 to September 2016. These included repeated episodes of <mask> and/or masturbation in front of female nurses, physicians, and psychologists. For example, Morrison confronted a female psychologist in her office and exposed himself, masturbated during a session with a female physician, and masturbated and exposed himself through his cell door to another female psychologist. At least one female psychologist felt "very uncomfortable and quite threatened" by Morrison's misconduct. Morrison told a psychologist he had uncontrollable urges and, if released, he would rape again. Dr. Jeko diagnosed Morrison with Unspecified Paraphilia Disorder, Exhibitionist Disorder, and Antisocial Personality Disorder. Dr. Jeko's initial report was based on a significantly smaller and less detailed list of 115 Rule violations and did not reflect the extent and depth of Morrison's misconduct in prison.


Defendant's strike priors are two 1992 residential burglaries and a 1996 robbery. The two burglaries were committed within minutes of each other. In the first burglary, defendant stole jewelry. In the second burglary, he was interrupted by the victim. The robbery involved "entering a residence, brandishing knives and demanding *767money from the victim." Defendant also suffered three other felony convictions and 13 misdemeanor convictions prior to his current conviction. One of his misdemeanor convictions was a 1996 *228<mask> (§ 314, subd. (1)) conviction.2 A number of defendant's convictions were for narcotics offenses.


The defense submitted a report by Richard Subia, a former California Department of Corrections and Rehabilitation (CDCR) division director and warden. Subia had *768interviewed defendant and reviewed defendant's prison record, and defendant had told Subia that he was defending himself in most of the fights in which he was involved in prison. Defendant told Subia that he was targeted because of his " 'R' " designation (due to his <mask> conviction) and "his size." Subia's opinion was that defendant did not currently pose an unreasonable risk of danger to public safety.


Meanwhile, the State sought review of the court of appeals's decision reversing the judgment of civil commitment. See Bohannan II , 388 S.W.3d at 302. On August 31, 2012, the Texas Supreme Court affirmed the judgment of the court of appeals. Id. at 307. Nevertheless, a couple of months later in October of 2012, the State indicted Appellant of violating the civil commitment order. Bohannan III , 2014 WL 5490936, at *1. The mandate of reversal was issued on January 18, 2013. Id. , at *3. Still, the State proceeded with the prosecution, and on February 12, 2013, Appellant was convicted by a jury of violating the civil commitment order. Id. , at *1. Finding enhancement paragraphs alleging the rape convictions and the South Carolina <mask> conviction to be true, the jury assessed a sentence of life in prison. Id.


After the trial court denied defendant Ronald Kay Mason’s motion to suppress his confession that he masturbated in his car and exposed himself to the victim, which he gave after being detained during a traffic stop, a jury found him guilty on two counts of <mask> with a prior sex offense. Defendant appeals the trial court’s denial of his suppression motion, arguing that the admission at trial of his confession violated his Fifth Amendment right against self-incrimination because he made the incriminating statement during a custodial interrogation without first being advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).


Paula pulled out of her parking spot and stopped behind some nearby cars to write down the truck’s license plate number and call 911.2 The truck drove off, and Paula followed it, relaying to the 911 dispatcher a description of the truck, its license plate number, and its location. While following the truck, Paula was able to observe the driver’s face.3 Officer Devin Ketel responded to the 911 call and located a white truck that matched the description and license plate number Paula provided. He stopped the truck on the Highway 44 westbound onramp; defendant was the driver and sole occupant of the truck. Officer Ketel questioned defendant outside his truck, and he initially denied being in the Walmart parking lot earlier that day. Defendant eventually admitted that he had seen a woman with red hair in the parking lot, and had masturbated in his truck and exposed himself to her for excitement. During an in-field showup, Paula positively identified defendant. Defendant was arrested and charged with two counts of <mask> with a prior conviction under Penal Code section 288, subdivision4 (§ 314, subd. 1, count 1 [July 3 incident] & count 2 [July 5 incident]). As to both counts, it was alleged that he had a prior strike conviction for a sexual offense. (§ 1170.12.) Defendant filed a motion in limine to exclude his confession from trial. He contended that Officer Ketel violated his Fifth Amendment rights by subjecting him to a custodial interrogation during the traffic stop without first giving him Miranda warnings.


The relevant statutory language at the time of the court's July 2018 hearing stated, "Upon a finding by the court that a party seeking custody of a child has perpetrated <mask> against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence." (Former Fam. Code, § 3044, subd. (a), as amended by Stats. 2003, ch. 243, § 1, p. 2329.) "The requirement of a finding by the court shall also be satisfied if a court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years." (Former Fam. Code, § 3044, subd. (d)(2), as amended by Stats. 2003, ch. 243, § 1, p. 2330.) The statutory language was later amended, but the amendments do not have a material impact on our analysis. (Stats. 2018, ch. 941, § 3, pp. 6217-6218.)


while the criminal justice system incarcerated Father from January 2019 to June 2019. Mother repeatedly told DCFS she did not want to rekindle her relationship with Father, all the while secretly getting together with him and ultimately permitting him to reside with the family by December 2019. DCFS recommended removal of the children from Mother: “Due to mother’s history of deceiving DCFS, coaching the children to deceive DCFS (evidenced by the twins saying mother would not let them disclose abuse), repeatedly returning to father through at least three years of abuse, knowing father used methamphetamine and still allowing father unlimited access to herself and the children, disregarding CPO and Family Law order[s] [without] taking responsibility of her actions, DCFS does not believe the children are safe with mother at this time. Mother displays a history of poor judgment that places the children in danger. [¶] . . . [¶] When asked how <mask> impacted the children, mother said there was no impact and they were stronger and more mature due to what they went through.” DCFS noted that since the children had been detained from their parents, Victoria had improved in school and no longer struggled with anxiety attacks and eating disorders, C.L. was now “ ‘goofy’ and funny, and ‘more himself’ ” and the children “feel safe other than having fear of father manipulating their thoughts and emotions once again.” DCFS also noted Father had taken no responsibility for any of his actions and continued to deny any violence toward Mother, his girlfriend, or his children. At the hearing on October 28, 2020, the juvenile court sustained the petition and ordered the children removed from both parents. In doing so, the juvenile court addressed Mother: “Let me put it to you this way, Mom, to say that this is a tough


With these legal principles in mind, we examine the evidence presented in this case. GL was brought into emergency DHS custody shortly after her birth in January 2016, based on allegations that Tara was acting erratically, exhibiting dramatic mood swings, and making statements about hurting GL. Tara had tested positive for amphetamines, and hospital staff thought she was in psychosis. GL tested positive for methamphetamine at birth. Tara admitted that she was essentially homeless, having lived in a tent city and various people's homes prior to giving birth to GL. She identified two men as possibly being GL's father, one of whom she accused of <mask>.


"(1) Whether the perpetrator of <mask> has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.


And Rehaif fails to help Leija because the statutes at issue do not have similar wording. In Rehaif, the federal statute stated: "Whoever knowingly violates subsection . . . (g), . . . of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both." (Emphasis added.) 18 U.S.C. § 924(a)(2); 139 S. Ct. at 2195 (noting that the adverb "knowingly" modifies the verb "violates"). Violating § 922 requires more than just possessing a firearm. The Rehaif Court's task was to discern what the statute required a defendant to know in order to violate the law. But K.S.A. 2018 Supp. 21-6301(a)(18) prohibits a person convicted of a <mask> misdemeanor from "knowingly . . . possessing" a firearm. The fact that the adverb "knowingly" directly modifies the verb "possessing" makes the Kansas statute differ from the federal statute at issue in Rehaif so that Rehaif has little value in analyzing Leija's issue.


Minor argues the juvenile court erred in finding Minor did not satisfy her burden of proof under section 364(c) because "Mother did not complete the <mask> program ordered by the court and that was prima facie evidence that conditions which would justify the initial assumption of jurisdiction still existed and continued supervision was necessary." Minor further argues the court erred in terminating jurisdiction because Mother had failed to make Minor available "for home visits," as also required by her case plan. We find these arguments unavailing for a variety of reasons, including our conclusion it misstates the record evidence.


4 The small claims form lists the date of the recording as September 28, 2018. This appears to be a typographical error. served Kovtun with the complaint. The commissioner transferred the case to superior court, where the court consolidated the actions on its own motion. E. The First Anti-SLAPP Motion On November 16, 2018, Kovtun filed an anti-SLAPP motion (Code Civ. Proc., § 425.16). She argued (1) the cross-complaint was not compulsory and was therefore subject to the anti-SLAPP statute; and (2) the conduct giving rise to the causes of action in which she was named were all subject to the anti-SLAPP statute because they arose from a meeting to prepare a custody agreement to file with the court. She also argued (3) the transcript and audio recording of the meeting were inadmissible evidence, and (4) Jennifer had no probability of success on the merits because Kovtun’s conduct was protected by the litigation privilege.5 While the motion was pending, Jennifer filed a first amended verified complaint (FAVC). The FAVC modified one fact, who initially phoned Jennifer to invite her to the meeting. The FAVC alleged nine causes of action against Kovtun: a Ralph Act violation, negligence, professional negligence, intentional infliction of emotional distress, false imprisonment, intentional misrepresentation, negligent misrepresentation, witness intimidation, and abuse of process. In the causes of action for negligence, professional negligence, and intentional misrepresentation, the FAVC referenced Kovtun as “Attorney Kovtun” and an “officer of the court,” and it alleged Kovtun had violated “affirmative duty” she had as an officer of the court. The court denied Kovtun’s anti-SLAPP motion. It ruled the transcript and recording were admissible because a <mask> victim can record conversations with the restrained party. It also concluded the meeting was


S.Y. relies on the following two comments out of the 35 pages of material of which she requested judicial notice: (1) Section 3044"require[s] the perpetrator to show that he or she has undertaken specific actions to deal with the situation before custody is awarded to the parent." (Assem. Republican Caucus, analysis of Assembly Bill No. 840 (1999 - 2000 Reg. Sess.), p. 2 [Arguments in Support of the Bill, No. 3].); and (2) Section 3044 requires "proof of rehabilitation" to overcome the presumption against joint custody in order to "increase the probability that a <mask> perpetrator will be a safe custodial parent." (Enrolled Bill Report dated September 1, 1999 from the Health and Human Services Agency, Enrolled Bill Rep. on Assem. Bill No. 840 (1999 - 2000 Reg. Sess.) Sept. 1, 1999, p. 1 [Recommendation and Supporting Arguments].)


The court has reviewed the undisputed facts in light of the new statute’s broad prohibition and narrow exceptions. Mr. R. was convicted of second degree murder of his son’s mother. Michael, only three years old, is too young to agree to visits. Michael’s maternal grandmother, who has legal custody, opposes visitation. There is no claim that petitioner was himself the victim of <mask> inflicted by the deceased.


The court found, by clear and convincing evidence, there was <mask> between K.K. and E.S. in C.M.'s presence. C.M. was clearly impacted by the significant and escalating violence in the home, including the use of bleach, which has the capacity to permanently maim and injure a person. K.K. used a knife during the confrontation. E.S. minimized his use of a weapon. The court was concerned because K.K. had completed a 52-week domestic violence treatment program and was still engaging in violent activity.


Mother testified at the February 16, 2018 hearing that she had not been given an opportunity to provide information to the Tribe regarding her progress with her services. She explained that she wanted the Tribe to know that she had completed <mask> classes and therapy, and that she had healed. She also testified that she opposed the tribal customary adoption because she wanted to raise her children herself. She told the court that she was living on her own and maintained that she had learned "red flags" and other warning signs from participating in therapy and *30completing domestic violence classes. She testified that she had left four messages for the Tribe after she received the tribal customary adoption proposal, but had not been *142contacted by anyone from the Tribe. On cross-examination, Mother denied that she had spoken about A.S. and E.S. with the tribal social worker in October 2017. The court concluded that testimony about visitation, Mother's progress in services, and her bond with the children was not relevant to the issues to be determined at the hearing.