Mikesell v. Conley

51 F. App'x 496
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 21, 2002
DocketNo. 00-5845
StatusPublished
Cited by4 cases

This text of 51 F. App'x 496 (Mikesell v. Conley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mikesell v. Conley, 51 F. App'x 496 (6th Cir. 2002).

Opinion

BATCHELDER, Circuit Judge.

The Petitioner-Appellant, Donald Earl Mikesell, appeals the district court’s order dismissing his petition for federal habeas relief. Mikesell claims that the district court should have held that the Supreme Court of Kentucky violated the United States Constitution in any one of four ways when it affirmed his conviction for a sexual performance with a minor: that the trial court’s decision to admit evidence of events surrounding the taking of the photograph that, formed the basis of his conviction resulted in a fundamentally unfair trial; that the photograph was protected expression under the First Amendment; that the admission of testimony based on redacted portions of a co-defendant’s statement violated his Sixth Amendment right to be confronted with the witnesses against him; and that in light of the totality of the circumstances, the cumulative effect of the constitutional errors resulted in a fundamentally unfair trial. Finding no merit to these claims, we affirm the judgment of the district court.

Factual and Procedural Background

Mikesell met the 13-year-old female “J.N.” in September of 1995, at the Richmond, Kentucky, home of one Virgie Dill-ingham. Dillingham worked with J.N.’s mother, and J.N. would stay at Dilling-ham’s house after school. J.N.’s mother did not live in Richmond, but she was expecting to move there soon and she had placed J.N., a freshman, in high school there. At Dillingham’s house, J.N. became friends with Dillingham’s sister Carolyn Minter, who lived with Dillingham, and Minter became J.N.’s close confidante. It was through Minter that J.N. met Mike-sell. Minter and Mikesell had a longstanding extra-marital sexual relationship, and Mikesell had often supported Minter.

[499]*499According to J.N.’s testimony at trial, she and Mikesell met three times, and on each occasion he molested her. The first of these meetings occurred at Dillingham’s house, with J.N., Mikesell, and Minter present. Mikesell came in, talked, and then went into the bathroom. Minter told J.N. to go into the bathroom and take her clothes off, and J.N. obeyed — taking off her clothes while Mikesell watched. Mike-sell had her sit, naked, on the dryer, and while he reassured her that she should not be nervous he fondled her breasts and vagina. This ended after five or ten minutes when Minter knocked on the door and told Mikesell to hurry up. As J.N. put her clothes back on, Minter went outside and talked with Mikesell next to his truck. Minter returned a few minutes later with $100, telling J.N. that some of it was hers. J.N. told Minter to hold her share for her.

A week or two later, the three again met at Dillingham’s house. This time Mikesell brought white lace lingerie for J.N. Minter told J.N. to put on the lingerie; J.N. did so, as Mikesell watched, and then she obeyed Minter’s instruction to go to a bedroom upstairs. Mikesell followed J.N. to the bedroom, where he had her take off her lingerie and he down on the bed. He lay down next to her and fondled her as before, telling her not to be nervous because she was so pretty. This incident ended as the previous one had: Minter knocked on the door, Mikesell went outside with Minter, and Minter came back with money for both of them, but kept J.N.’s share.

Minter took J.N. to Mikeseh’s house on the third occasion, on September 29, 1995. This time Minter gave J.N. wine coolers and cigarettes, and Mikesell again gave Minter lingerie for J.N., which J.N. put on ■as Mikesell watched. After Minter had left the room, J.N. took off the lingerie and Mikesell took off his clothes; they lay down on the floor together and Mikesell fondled her and asked her “when she would be ready for it to go further.” When J.N. replied that she was not ready, Mikesell reassured her that she would get used to it. Minter came back into the room after a while and performed oral sex on Mikesell; J.N. remained in the room but did not watch, though they had invited her to. Later, Mikesell brought out a Polaroid camera and had Minter take a full frontal photograph of J.N. and him standing together, side by side, touching. The photograph showed each from the knees up — both were fully naked, Mikesell had his arm around J.N.’s waist, and the genitals of each were fully visible. Mikesell took another picture of J.N. and Minter sitting leaning against one another shoulder-to-shoulder, Minter naked to the waist and J.N. entirely unclothed. Minter told J.N. not to worry about the pictures because Mikesell would burn them. As before, Mikesell and Minter went outside, and then Minter returned with money. This was the last meeting between J.N. and Mikesell. J.N.’s mother learned of the incident several months later, when J.N.’s best friend broke a promise never to tell anyone else about it.

In Mikesell’s version of the facts, he and J.N. had met together only twice — the first time with J.N.’s mother present, and the second time at his house on September 29,1995. On the second occasion two photographs were taken: one of J.N. and him, and one of Minter and him. No one was nude in either. After the pictures were taken he burned them in a trash barrel on his property, so his wife would not find out.

In December of 1996, a Kentucky grand jury returned an indictment against Mike-sell and Minter, charging that they had induced J.N. to engage in a “sexual performance.” The statute Mikesell was [500]*500charged with violating establishes that “[a] person is guilty of the use of a minor in a sexual performance if he ... induces a minor to engage in a sexual performance.” KY. REV. STAT. ANN. § 531.310(1). The term “sexual performance” means “any performance or part thereof which includes sexual conduct by a minor”; “performance” includes “any ... photograph”; and “sexual conduct by a minor” means (1) various overt sexual activities, (2) “willful or intentional exhibition of the genitals,” and (3) “[t]he exposure, in an obscene manner, of the unclothed or apparently unclothed human ... female genitals, pubic area or buttocks, or the female breast ... in any resulting ... photograph ..., exclusive of exposure portrayed in matter of a private, family nature not intended for distribution outside the family.” Id. § 531.300. The word “obscene” as used in the statute “means the predominate appeal of the matter taken as a whole is to a prurient interest in sexual conduct involving minors.” Id.

Both Mikesell and Minter pleaded not guilty, and the case proceeded to a joint trial. Shortly before trial Mikesell handed over to the state a partially burned photograph he said he had found in his trash barrel, of an unidentifiable person standing next to J.N. In this photograph J.N. was wearing an opaque negligee, through which her “private parts” were not visible. At trial Mikesell testified that the person standing next to J.N. had been he, and that this was the only picture taken of him and her.

When J.N. was asked about this photograph at trial she said that she did not remember it being taken, but she knew that the picture of them fully naked had been taken first. The prosecutor then asked her how could she be sure that she and Mikesell were naked in the incriminating photograph, if she had forgotten that this picture had been taken. Her reply: “I couldn’t forget the first picture.” The prosecutor pressed her again, asking, “Are you certain about the first picture?” “Positive,” was J.N.’s response.

The jury found Mikesell guilty and recommended the maximum sentence of twenty years, which he received.

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Bluebook (online)
51 F. App'x 496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mikesell-v-conley-ca6-2002.