by F.T. Norton
Appeal Staff Writer

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March 27, 2007
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Carson District judge calls offense 'natural impulse'


A Carson City man was sentenced to up to 18 years in prison on Tuesday for possessing more than 800 images of child pornography.

Jason Excell, 36, pleaded guilty to 10 counts of possession of child pornography. In exchange for the plea, additional charges were dismissed.

"These kinds of offenses are problems with impulse control," said Carson City District Judge Bill Maddox prior to sentencing. "When I say that, it's my understanding that most men are sexually attracted to young women. When I say young women I don't just mean women that ... you should be attracted to. I mean women from the time they're 1 all the way up until they're 100."

Maddox noted the legal terms malum in se, a Latin phrase meaning an act that is "inherently evil," and malum prohibitum, which means acts that are not necessarily inherently immoral or hurtful, only wrong by statute.

He said child pornography could be considered malum prohibitum because in some countries and cultures it is acceptable to engage in sexual conduct with young girls.

"As an example, having sex with a girl between 12 and 16 is prohibited because we say it's prohibited. It's because we decided as a civilized society you do not want adults engaging in sexual conduct with children below 16 years of age, which flies in the face of our, I guess for lack of a better description, our normal impulses," he said.

"I guess we could just ignore them, say it's just like a traffic ticket, it's malum prohibitum, it's only against the law because it's prohibited. Or we could say that because we're trying to control what's an otherwise natural impulse there has to be consequences.

"The bottom line on it all is the way we're going to control it in my opinion is to ensure that everybody understands what the consequences are if you engage in ... a lack of impulse control. It's likely that most people would find young girls sexually attractive. But we're civilized to the point that we're taught to control our impulses. When you don't, there has to be consequences."

In sentencing Excell, Maddox said he wanted to send a message to others in the community who might possess images of child porn.

"I want it to be clear to anybody out there that is thinking of downloading them or getting them on CD or ordering them through the mail or whatever, if you get caught possessing them you're going to go to prison in Carson City," he said.

Excell was arrested March 3, 2006, after his wife turned over photographs she found on his computer.

According to Deputy District Attorney Kristin Luis, the images are of children "easily under the age of 10," being sexually violated by adults or engaging in sex with other children.

She said at least 88 of the photographs were of children who have been identified by federal authorities through other child pornography cases nationwide.

Maddox could have sentenced Excell to between 10 and 60 years. Parole and probation suggested a sentence of two to 12 years. Maddox opted for an additional six years on Excell's sentence so that if he were paroled, he'd be under state supervision longer.

Excell is eligible for parole in two years. He was given credit for serving 391 days in jail.

• Contact reporter F.T. Norton at ftnorton@nevadaappeal.com or 881-1213.

Transcripts of sentencing of Jason Excell on child porn charges:

1 Case No. 06-01651C

2 Department No. II

3

4 IN THE FIRST JUDICIAL DISTRICT COURT

5 STATE OF NEVADA, COUNTY OF CARSON CITY

6 HONORABLE WILLIAM MADDOX

7 -oOo-

8 THE STATE OF NEVADA,

PARTIAL

9 TRANSCRIPT OF PROCEEDINGS

Plaintiff, JUDGE'S RULING

10

vs. MARCH 27, 2007

11 CARSON CITY, NEVADA

JASON ERIC EXCELL,

12

13 Defendant.

__________________________/

14

APPEARANCES:

15

FOR THE PLAINTIFF: OFFICE OF THE DISTRICT ATTORNEY

16 By: KRISTIN N. LUIS, ESQ.

885 E. Musser St., Room 2030

17 Carson City, Nevada 89703

18

FOR THE DEFENDANT: OFFICE OF THE PUBLIC DEFENDER

19 By: KARIN K. KREIZENBECK, ESQ.

511 Robinson

20 Carson City, Nevada 89701

21 FOR DEPT. PAROLE

& PROBATION: SHERYL EILENFELDT

22

23

SUNSHINE REPORTING SERVICES

24 (775) 883-7950 or (775) 323-3411

REPORTED BY: STEPHANIE ZOLKOWSKI, CCR 283

25 COMPUTER-ASSISTED TRANSCRIPTION BY: caseCATalyst

1

SUNSHINE REPORTING SERVICES (775) 323-3411

1 CARSON CITY, NEVADA, TUESDAY, MARCH 27, 2007, 11:10 AM

2 -o0o-

3 THE COURT: Is there any legal cause to show

4 why judgement shouldn't be entered?

5 MS. KREIZENBECK: No, Your honor.

6 THE COURT: There being no legal cause to

7 show why judgement shouldn't be entered, it will be

8 the judgment of the Court that Jason Eric Excell is

9 guilty of Counts I through X, all category B -- well,

10 Counts I through X, Possession of Child Pornography,

11 first offenses, category B -- felonies, as defined by

12 NRS 200.730 subsection 1.

13 It will be the sentence of the Court that you

14 pay a $25 administrative assessment fee, $60 chemical

15 analysis fee and $150 DNA fee.

16 I have been doing -- I have been in the

17 criminal justice system in the State of Nevada and

18 probably all over the United States for almost

19 30 years, Mr. Excell.

20 I was the primary person in the District

21 Attorney's office when I was a District Attorney who

22 prosecuted child abuse cases. I consider sexual

23 offenses against children as abuse.

24 I have come to I think understand a little

25 bit about -- the doctor here didn't really add much to

2

SUNSHINE REPORTING SERVICES (775) 323-3411

1 my knowledge about it.

2 When I was US Attorney my office prosecuted a

3 lot of significant types. One of them was a guy named

4 Ruben Sterling who was the largest pornographer in the

5 world. We prosecuted him.

6 So I have been involved and had a lot of time

7 to think about it, dealt with victims and even had

8 occasion when I was in private practice to defend

9 people accused of it. I have had a lot of experience

10 with this.

11 It's my impression from all the experts that

12 I have talked to, and it's been a fair number of them,

13 that the doctor, the way he put it, isn't quite the

14 way I put it.

15 These kinds of offenses are problems with

16 impulse control. When I say that it's my

17 understanding that most men are sexually attracted to

18 young women.

19 When I say young women I don't just mean

20 women that are appropriately you should be attracted

21 to. I mean women from the time they're one all the

22 way up until they're a hundred.

23 In some societies it's acceptable to be

24 engaging in sexual conduct with women that are eleven,

25 twelve-, thirteen-years-old.

3

SUNSHINE REPORTING SERVICES (775) 323-3411

1 So we overlay that with laws that prohibit

2 any sexual contact with children under 14 and any

3 intercourse with children under 16, which means that

4 those kinds of crimes are not what are called malum

5 prohibitum, evil of themselves, they're crimes that

6 are called malum prohibitum.

7 As an example, having sex with a girl between

8 12 and 16 is prohibited because we say it's

9 prohibited.

10 It's because we decided as a civilized

11 society you do not want adults engaging in sexual

12 conduct with children below 16 years of age, which

13 flies in the face of our, I guess for lack of a better

14 description, our normal impulses.

15 So what's the answer to that? What's the

16 answer? How do we enforce those laws?

17 I guess we could just ignore them, say it's

18 just like a traffic ticket, it's malum prohibitum,

19 it's only against the law because it's prohibited.

20 Or we could say that because we're trying to

21 control what's an otherwise natural impulse there has

22 to be consequences. There has to be consequences.

23 And in the overall scheme of things you're

24 not even close to being the worst offender of our

25 sexual morass that I have seen.

4

SUNSHINE REPORTING SERVICES (775) 323-3411

1 I have prosecuted fathers who force their

2 14-year old daughter to perform fellatio on them or

3 20-, 30-year old guy performing sexual acts on a

4 seven-year old girl. Ruben Sterling who purveyed

5 films of people having sex with animals. I have seen

6 a wide spectrum.

7 The bottom line on it all is the way we're

8 going to control it in my opinion is to insure that

9 everybody understands what the consequences are if you

10 engage in and it's a lack of impulse control.

11 It's likely that most people would find young

12 girls sexually attractive. But we're civilized to the

13 point that we're taught to control our impulses. When

14 you don't, there has to be consequences.

15 So having said all of that, I don't think

16 you're someone that society needs to isolate. I don't

17 -- you can argue about retribution. I don't know who

18 I would be obtaining that for.

19 Rehabilitation. You'll be on parole and

20 you'll be able to get counseling which I absolutely

21 suggest that you do.

22 I don't know if you have been specifically

23 deterred from engaging in this type of conduct again.

24 But what I do know is, and I have said it

25 before, I want it to be clear what the consequences in

5

SUNSHINE REPORTING SERVICES (775) 323-3411

1 this community are of engaging in this kind of conduct

2 that you engaged in. So I'm not going to give you

3 probation.

4 I'm just sitting here and calculating it out.

5 Based on the number of Counts you pled to I could

6 sentence you to 23 years to 60 years which would be

7 the maximum. I'm not going to do that.

8 Parole and Probation is recommending that I

9 sentence you four years to eighteen -- to four years,

10 eight months to eleven years, two months. I'm not

11 going to do that.

12 The sentence is going to be on Count I I'll

13 sentence you from 12 to 72 months.

14 Count II I'll sentence you from 12 to 72

15 months.

16 Actually, I'll sentence you 12 to 72 months

17 on all ten Counts. I'm going to run Counts I, II and

18 III consecutive, which means you're going to be

19 required to spend 36 months to three times 72,

20 whatever that is.

21 My thought process there is that that will

22 allow for you to be supervised for 18 years but you

23 only serve three years in prison, assuming that you

24 get paroled at your first parole date which based on

25 your criminal history and other factors, like I say,

6

SUNSHINE REPORTING SERVICES (775) 323-3411

1 you could not be lower on the sexual offender scale.

2 About the only thing that gets you right off

3 the bottom would be the fact you asked that girl to

4 take her clothes off.

5 But other than that I can't imagine someone

6 being lower on the offender scale than you are.

7 On the other hand, and Ms. Kreizenbeck said

8 it, if there isn't a market for these kinds of

9 photographs, then hopefully their production will be

10 considerably reduced.

11 To your credit you didn't engage in producing

12 them. You have looks like acted out on your impulse

13 other than that one time. That's really what it's

14 about. It's impulse control.

15 The doctor made the observation not having

16 any substance abuse problems. What happens? You

17 drink, you don't control your impulses as well as you

18 should. You use drugs, you don't control your

19 impulses as well as you should.

20 You obviously have less impulse control than

21 I might or other people. I definitely would suggest

22 you don't drink or use drugs, especially if you're

23 going to be around children.

24 But this will give you a sentence of 36 to

25 216 months. The rest of them will be run concurrent.

7

SUNSHINE REPORTING SERVICES (775) 323-3411

1 You're given credit for --

2 MS. EILENFELDT: 391 days.

3 Your honor, there is no chemical analysis

4 fee. So please scratch that.

5 THE COURT: I want it to be clear to anybody

6 out there that is thinking of downloading them or

7 getting them on CD or ordering them through the mail

8 or whatever, if you get caught possessing them you're

9 going to go to prison in Carson City. That's what is

10 going to happen to you.

11 I don't know it's necessary to specifically

12 deter you but what I would hope is it would be clear

13 to others here thinking about doing the same thing and

14 maybe at some point we can accomplish there being no

15 demand for them and, therefore, they won't be

16 produced.

17 Anything more?

18 MS. LUIS: No, Your honor.

19 THE COURT: That will be the sentence of the

20 court.

21 Good luck, Mr. Excell.

22 (Proceedings concluded at 12:15 p.m.)

23

24

25

8

SUNSHINE REPORTING SERVICES (775) 323-3411

1 STATE OF NEVADA )

) ss.

2 CARSON COUNTY )

3

4

5 I, STEPHANIE ZOLKOWSKI, an Official Reporter of

6 the First Judicial District Court of the State of

7 Nevada, County of Carson, DO HEREBY CERTIFY:

8 That I was present in the above-entitled Court

9 on MARCH 27, 2007, and took verbatim stenotype notes

10 of the proceedings had upon the matter captioned

11 within, and thereafter transcribed them into

12 typewriting as herein appears;

13 That the partial foregoing transcript,

14 consisting of pages 1 through 8, is a full, true and

15 correct transcription of my stenotype notes of said

16 proceedings.

17 DATED: At Carson City, Nevada, this________day

18 of____________________________, 2007.

19

20

21

22

23

24

25

9

SUNSHINE REPORTING SERVICES (775) 323-3411



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The Nevada Appeal Updated Mar 28, 2007 02:45PM Published Mar 27, 2007 03:00AM Copyright 2007 The Nevada Appeal. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.