ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

ROY ADRIAN HOGGARD, II,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR01-514

NOVEMBER 28, 2001

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT,

NO. CR2000-19-B,

HON. JOE MICHAEL FITZHUGH,

JUDGE

AFFIRMED

Roy Adrian Hoggard, II, was convicted by a jury of rape, pandering or possessing visual or print medium depicting sexually explicit conduct involving a child, and possession of methamphetamine. Prior to his conviction under state law, Hoggard was convicted in federal court under 18 U.S.C. § 2251 of sexual exploitation of his minor daughters. Hoggard appeals, raising two points: (1) that the trial court erred in denying his motion to suppress the evidence seized and statements made during the search of his vehicle; (2) that the trial court erred in refusing to grant his motion to dismiss, on the ground of double jeopardy, the charge of pandering or possessing visual or print medium depicting sexually explicit conduct involving a child. We affirm.

Motion to Suppress

After stopping Hoggard for speeding, Corporal Alan Marx of the Sebastian CountySheriff's Department, asked him to consent to a search of his vehicle. Hoggard agreed and opened the trunk; inside was a safe that Hoggard began to open, but then placed his hand on the safe and told Marx to "wait a minute" because there were pictures of his wife in the safe. Marx responded that he was not interested in the pictures; rather, he was looking for "contraband" in the safe. Marx testified that Hoggard then removed his hand from the safe and told him to "go ahead." Marx viewed the pictures, which portrayed a woman and children in sexually explicit scenes. Hoggard identified these persons as his wife and children. Marx then arrested Hoggard and his wife, who was a passenger in the car. He inventoried the car and discovered methamphetamine. The trial court found the search to be consensual and denied Hoggard's motion to suppress the evidence seized and statements made to Marx. When reviewing a trial court's ruling denying a motion to suppress, we make an independent determination based on the totality of the circumstances. Reyes v. State, 329 Ark. 539, 954 S.W.2d 199 (1997). A trial court's decision will be reversed only if it is clearly against the preponderance of the evidence. Id.

Arkansas Rule of Criminal Procedure 11.5 provides that:

Arkansas Rule of Criminal Procedure 11.3 additionally provides that "[a] search based on consent shall not exceed, in duration or physical scope, the limits of the consent

given." The test for a valid consent to search is that the consent be voluntary, and "[v]oluntariness is a question of fact to be determined from all the circumstances." Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000)(quoting Ohio v. Robinette, 519 U.S. 218, 248-49 (1973)). In Miller, our supreme court held that it was reasonable for the police officer to conclude that consent to search a vehicle for contraband included consent to search containers found in the car's interior. In Florida v. Jimeno, 500 U.S. 248 (1991), the United States Supreme Court held that the standard for measuring the scope of a suspect's consent is that of objective reasonableness and that it was objectively reasonable for the officer to believe that permission to search a vehicle extended to opening containers found in the vehicle. The Court also noted that a reasonable person could be expected to know that narcotics are usually carried in a container. Id.

Hoggard argues that he limited the scope of his consent to the search by his words and actions and that Marx exceeded the scope of the consent by viewing the pictures. Hoggard further contends that Marx's testimony was insufficient to establish that he had consented to an unlimited search.

Marx's testimony established that he clarified to Hoggard that he was searching for "contraband," that Hoggard then allowed Marx to proceed with the search, and that Hoggard never told Marx to stop the search, but merely interrupted the search when he stated "wait . . .." Marx testified that Hoggard then told him "okay, go ahead." At trial, Hoggard admitted that he consented to the search, but that he "warned" Marx about the pictures that were in the safe.

Hoggard's contention that Marx's testimony was insufficient to establish consent is without merit, as this court defers to the superior position of the trial court to ascertain the credibility of the witnesses. Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999); Holmes v. State, 75 Ark. App. 46, 54 S.W.3d 121 (2001).

We hold, based upon the totality of the circumstances, that Hoggard did not limit his grant of consent to search his vehicle and that the trial court's finding of a consensual search was not against the preponderance of the evidence.

Double Jeopardy

Hoggard next contends that his federal conviction for sexual exploitation of his minor daughters, under 18 U.S.C. § 2251, bars this subsequent prosecution for pandering or possessing visual or print medium depicting sexually explicit conduct involving a child under Ark. Code Ann. § 5-27-304 (Repl. 1997). Hoggard relies upon the double-jeopardy protection provided by Ark. Code Ann. § 5-1-114 (Repl. 1997).

Arkansas Code Annotated section 5-1-114 provides that:

(1) The first prosecution resulted in an acquittal or in a conviction as set out in § 5-1-112 and the subsequent prosecution is based on the same conduct unless:

The offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other, and the law defining each of the offenses is intended to prevent a substantially different harm or evil[.]

In the case at bar, Hoggard concedes that there are differing elements for conviction under the state and federal statutes, and contends only that the two statutes are not intended to prevent a substantially different harm or evil and thus, Ark. Code Ann. § 5-1-11 bars any subsequent state prosecution due to his prior federal conviction.

Arkansas Code Annotated section 5-27-304 states that:

(1) Knowingly advertise for sale or distribution, sell, distribute, transport, ship, exhibit, display, or receive for the purpose of sale or distribution any visual or print medium depicting a child participating or engaging in sexually explicit conduct;

(2) Knowingly solicit, receive, purchase, exchange, possess, view, distribute, or control any visual or print medium depicting a child participating or engaging in sexually explicit conduct.

(b) Any person who violates subdivisions (a)(1) or (2) of this section shall be guilty of a Class C felony for the first offense and a Class B felony for any subsequent offenses.

However, 18 U.S.C. § 2251(b), states that:

The State contends that the statutes differ in that the federal statute is designed toprevent the photographing of minors for sexual purposes and that the state statute is designed to prevent the possessing of the child pornography. The federal statute, 18 U.S.C. § 2251(b), is expressly directed to parents who knowingly permit their child to "engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct." The state statute, however, does not address a person's culpability in knowingly permitting a minor, whether it is their child or not, to engage in such behavior; rather, the state statute expressly forbids advertising for sale, selling, distributing, transporting, shipping, exhibiting, displaying, and receiving with intent to sell as well as forbidding the solicitation, purchase, exchange, possession, viewing, distributing, or controlling of such conduct. See Ark. Code Ann. § 5-27-304.

The harm intended to be prevented by the two statutes is substantially different. The federal statute expressly addresses the harm arising from a parent knowingly permitting their child to be used in the creation of visual depictions of sexually explicit conduct. The state statute does not address this harm. The state statute addresses all behavior after the creation of the depictions, rather than the act of creating the depictions.

Because 18 U.S.C. § 2251 and Ark. Code Ann. § 5-27-304 intend to prevent substantially different harm, we hold that the subsequent state prosecution in the case at bar was not barred by Ark. Code Ann. § 5-1-114.

Affirmed.

Jennings, J., agrees.

Roaf, J., concurs.