State of Arizona v. Paul David Windsor, Jr.

• Court: Court of Appeals of Arizona
• Decided: March 30, 2010
• Docket: 2 CA-CR 2009-0090
• Status: Published

Opinion

FILED BY CLERK MAR 30 2010 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO

THE STATE OF ARIZONA, ) ) 2 CA-CR 2009-0090 Appellee, ) DEPARTMENT A ) v. ) OPINION ) PAUL DAVID WINDSOR, JR., ) ) Appellant. ) )

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR-20073224

Honorable Hector E. Campoy, Judge

AFFIRMED

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Diane Leigh Hunt Tucson Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender By David J. Euchner Tucson Attorneys for Appellant

E S P I N O S A, Presiding Judge. ¶1 This case raises the novel issue whether downloading images from a remote

source through the Internet constitutes “duplicating,” as opposed to “receiving,” these

images for purposes of Arizona‟s sexual exploitation of children statutes. After a jury

trial, Paul Windsor was convicted of five counts of sexual exploitation of a minor in

violation of A.R.S. § 13-3553(A)(1). He was sentenced to mitigated, consecutive

sentences totaling fifty years‟ imprisonment. On appeal, Windsor contends the evidence

was insufficient to support his convictions. For the following reasons, we disagree and

affirm the convictions and sentences.

Factual and Procedural History

¶2 We view the facts in the light most favorable to sustaining the jury‟s

verdicts. State v. Huffman, 222 Ariz. 416, ¶ 2, 215 P.3d 390, 392 (App. 2009). One

morning in January 2006, staff at a public computer facility located in a University of

Arizona library received more than fifty, automatically generated, virus-alert messages

from one of the facility‟s computers over the course of several minutes. After a staff

member remotely rebooted that computer, another computer began sending similar virus-

notification messages. The staff member remotely viewed its screen and saw “sexually

suggestive” pictures of children. He then rebooted the computer, “hoping that the [user]

would leave.”

¶3 When the second computer continued to send the virus-alert messages, staff

members once again remotely accessed its screen and observed that the user was opening

the images in a graphics program. A staff member called university police officers, who

2 arrived and found Windsor sitting at the computer with pornographic photographs of

children on the screen.1 Subsequent forensic analysis revealed Windsor had downloaded

the images from a remote Internet site and saved them in a shared file on the computer‟s

hard drive. He was later indicted, arrested, and convicted as outlined above.

Discussion

¶4 The sole issue on appeal is whether Windsor‟s conviction was supported by

sufficient evidence.2 We will not reverse a conviction unless the state has failed to

present substantial evidence of guilt. Substantial evidence is “more than a mere scintilla”

and is proof that reasonable persons could accept as convincing beyond a reasonable

doubt. State v. Nunez, 167 Ariz. 272, 278, 806 P.2d 861, 867 (1991).

¶5 The statute Windsor was convicted of violating, § 13-3553(A)(1), prohibits

“[r]ecording, filming, photographing, developing or duplicating any visual depiction in

which a minor is engaged in exploitive exhibition or other sexual conduct.” Windsor

does not dispute that the images he accessed were child pornography, but rather contends

that his downloading these images did not amount to “[r]ecording, filming,

1 There was trial testimony and an exhibit showing that the screen displayed numerous photographs in a “collage” format. 2 Windsor does not dispute that he failed at trial to move for a judgment of acquittal on this basis pursuant to Rule 20, Ariz. R. Crim. P., and therefore is entitled to a review only for fundamental error. See State v. Stroud, 209 Ariz. 410, n.2, 103 P.3d 912, 914 n.2 (2005). However, a conviction not supported by substantial evidence constitutes fundamental error. Id.; see also State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error if it finds it), cert. denied, ___ U.S. ___, 129 S. Ct. 460 (2008). 3 photographing, developing, or duplicating” them. In our recent opinion, State v.

Paredes-Solano, 223 Ariz. 284, ¶¶ 9-12, 15, 222 P.3d 900, 904-06 (App. 2009), this court

recognized that § 13-3553(A)(1), under which Windsor was charged, and

§ 13-3553(A)(2), which prohibits “[d]istributing, transporting, exhibiting, receiving,

selling, purchasing, electronically transmitting, possessing, or exchanging,” were

intended to punish different kinds of harm. Relying on Paredes-Solano, Windsor argues

the state was required to prove he committed the distinct crime outlined in the subsection

under which he was charged.3 We agree. See Paredes-Solano, 223 Ariz. 284, ¶¶ 16-22,

222 P.3d at 906-08 (reversing conviction where duplicitous indictment did not require

unanimous verdict distinguishing between § 13-3553(A)(1) and (A)(2)).

¶6 Accordingly, the convictions cannot be sustained unless the state presented

sufficient evidence Windsor engaged in one of the activities proscribed in

§ 13-3553(A)(1). Because it is undisputed Windsor did not record, film, photograph, or

develop any image, the validity of his conviction turns on whether downloading pictures

from a remote Internet site constitutes “duplicati[on]” for the purposes of this statute.

When called upon to interpret a statute, we consider its plain language, giving meaning to

each word and phrase “„so that no part is rendered void, superfluous, contradictory or

insignificant.‟” State v. Larson, 222 Ariz. 341, ¶ 14, 214 P.3d 429, 432 (App. 2009),

3 Windsor appears to all but concede that, had the state charged him under § 13-3553(A)(2), sufficient evidence would exist to support his conviction. 4 quoting Pinal Vista Props., L.L.C. v. Turnbull, 208 Ariz. 188, ¶ 10, 91 P.3d 1031, 1033

(App. 2004).

¶7 At trial, the state‟s computer expert testified that downloading involves

using the Internet to copy a file from a remote computer, a description consistent with the

way courts have construed the term. See, e.g., Metro-Goldwyn-Mayer Studios Inc. v.

Grokster, Ltd., 545 U.S. 913, 919-23 (2005) (downloaded files copied from servers or

directly from peer-to-peer network); United States v. Sullivan, 451 F.3d 884, 891 (D.C.

Cir. 2006) (“every time one user downloads an image, he simultaneously produces a

duplicate version of that image”); Salter v. State, 906 N.E.2d 212, 219 (Ind. Ct. App.

2009) (downloading picture means “saving a copy of the image”); Moore v. State, 879

A.2d 1111, 1117 (Md. 2005) (download “means to transfer or copy a file”); People v.

Hill, 715 N.W.2d 301, 304 (Mich. Ct. App. 2006) (downloaded material copied from

websites).

¶8 As Windsor points out, the word “duplicate” is not defined in the criminal

code. The general dictionary definition of that word, however, is “to make an exact copy

of.” Webster’s Ninth New Collegiate Dictionary 389 (1991); accord The American

Heritage Dictionary 430 (2d college ed. 1982) (“[t]o make an identical copy of”); see

State v. Bews, 177 Ariz. 334, 336, 868 P.2d 347, 349 (App. 1993) (“widely respected

dictionary” useful when statutory term not defined in statute and “no indication it [was]

to be given an unusual meaning”). Based solely on the plain meanings of the terms

“download” and “duplicate,” it would appear that one who downloads an image from a

5 remote computer or computer server has duplicated it for the purposes of

§ 13-3553(A)(1).

¶9 Windsor disputes this construction of the statute. Citing Paredes-Solano,

he argues that because “duplicating” is used in § 13-3553(A)(1), it must refer to the

“creation or production of a new image,” and the act of downloading is more analogous

to the receipt or distribution of an existing image described in § 13-3553(A)(2) than to

the creation of a new one.4 But he does not explain how creating an electronic copy of an

image is so significantly different from making any other type of duplicate that it should

be treated differently under the law. Moreover, our generalized statement of the statute‟s

purposes in Paredes-Solano does not alter the plain language of the statute and cannot

serve to narrow its application. See State v. Peek, 219 Ariz. 182, ¶¶ 16-17, 195 P.3d 641,

643-44 (2008) (rejecting argument based on case law requiring interpretation contrary to

statute‟s plain language).

¶10 Windsor also cites Oregon and Washington statutes similar to § 13-3553(A)

and out-of-state cases in which courts upheld the convictions of defendants who had

reproduced pornographic images. It appears his intent is to show that other states do not

regard the act of downloading an image as “duplicati[on]” for the purposes of their

4 In his opening brief, Windsor likens downloading images to purchasing a magazine containing pornography, arguing that a purchaser could only be guilty of violating § 13-3553(A)(1) by taking the additional step of scanning, photocopying, or faxing the image, “thus creating something entirely new.” But downloading images is more analogous to purchasing materials at a store that requires a person to make his or her own photocopy of the materials to leave with them. 6 respective statutes. But none of the decisions he cites stand for this proposition or even

include discussion of this issue. State v. Dimock, 27 P.3d 1048, 1048-49 (Or. Ct. App.

2001), involved a defendant who undisputedly used electronic mail (e-mail) to transmit

pornographic images. State v. Knutson, 823 P.2d 513, 515 (Wash. Ct. App. 1991), did

not involve computers at all, but rather photographs the defendant had enlarged and

reproduced. And the defendants in State v. Betnar, 166 P.3d 554, 556 (Or. Ct. App.

2007), and People v. Hill, 715 N.W.2d 301, 304-05 (Mich. Ct. App. 2006), had

duplicated images by placing them on compact discs. That other courts have sustained

convictions for acts that would also violate our statute is not germane to Windsor‟s claim

that downloading is not duplicating.

¶11 We also reject Windsor‟s contention that interpreting the word

“duplicati[on]” in § 13-3553(A)(1) to include downloading would render superfluous the

terms “receiving,” “electronically transmitting,” and “possessing,” that appear in

§ 13-3553(A)(2). Although he does not specifically explain how these words would

become meaningless if downloading constitutes duplication, we infer that Windsor‟s 5 primary concern is the term “electronically transmitting.” But there are a number of

ways that electronic transmission could entail acts other than downloading, such as using

5 One obviously could receive or possess illicit materials without having downloaded them, such as a photograph or a video recording, and without having either accessed them on the Internet or duplicated them. 7 e-mail to send an image or broadcasting streaming video over the Internet.6 Additionally,

we are unconcerned that a defendant who downloaded an image could be found both to

possess and to have duplicated it—a possibility faced equally by anyone who knowingly

copies proscribed images in any form. Cf. State v. Cheramie, 218 Ariz. 447, ¶¶ 10-11,

189 P.3d 374, 376 (2008) (unlawful possession lesser-included offense of transporting

drugs for sale because “we cannot conceive how a person can „transport‟ drugs without

having possess[ed them]”).

¶12 We find additional support in State v. Jensen, 217 Ariz. 345, 173 P.3d 1046

(App. 2008), for our conclusion that intentionally downloading an image constitutes

something distinct from receiving, possessing, or electronically transmitting it. The issue

in Jensen was whether sufficient evidence existed to prove the defendant knowingly had

received or possessed child pornography in violation of § 13-3553(A)(2) when his

computer‟s memory cache contained automatically saved images that had been accessed

via the Internet. Id. ¶¶ 2, 4, 6. In holding the downloaded images could be evidence of

receipt, this court discussed the concept of “receiving” information through the Internet,

distinguishing that receipt from intentionally downloading a file. Id. ¶ 18 (images

automatically stored in computer cache constituted evidence operator voluntarily

6 “Streaming” involves transmitting electronic data in a continuous fashion to disseminate visual or audio content, or both, among receiving devices. See Cable Plus Co., L.P. v. Ariz. Dep’t of Rev., 197 Ariz. 507, ¶ 13, 4 P.3d 1050, 1052-53 (App. 2000) (describing transmission of information by streaming electronic signals); see also UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1081, 1085 (C.D. Cal. 2008) (distinguishing downloading from streaming). 8 received them by “intentionally accessing websites” “to have them visually appear on the

screen”).

¶13 Similarly, we determined that, by visiting websites containing child

pornography, the defendant in Jensen had taken “„something given, offered, or

transmitted‟” or had “„convert[ed] incoming electro-magnetic waves into visible or

audible signals,‟” an act similar to, but separate from, intentionally downloading files

onto his computer hard drive. Id. ¶ 13, quoting Webster’s II New Riverside University

Dictionary 981 (1994). Implicit in this discussion is the idea that “electronic

transmission” is the broadcast of images over the Internet, which one receives by

viewing, and that these acts of transmitting and receiving are separate from actively and

intentionally making a copy by downloading and saving the images in a specific location

on a computer.7

¶14 At Windsor‟s trial, an FBI computer forensics expert testified that

downloading a file from the Internet involves copying the file to a user‟s computer hard

drive. And Windsor did not contest that he was responsible for downloading the

recovered image files.8 Accordingly, because the state presented evidence that, by

7 In Jensen we did not reach the issue of whether inadvertently cached images constituted knowing possession of child pornography. 217 Ariz. 345, ¶ 18, 173 P.3d at 1052-53. Similarly, here we need not address whether automatically cached copies of images could constitute a knowing duplication because the evidence clearly shows Windsor placed the images in a shared folder of the computer. 8 At trial, Windsor denied knowing what the files contained but did not dispute that he had downloaded them. 9 downloading these images, Windsor intentionally had copied them onto the computer, his

conviction for duplicating an exploitative visual representation of a child in violation of

§ 13-3553(A)(1) was supported by substantial evidence.

Disposition

¶15 Windsor‟s convictions and sentences are affirmed.

/s/ Philip G. Espinosa PHILIP G. ESPINOSA, Presiding Judge

CONCURRING:

/s/ Joseph W. Howard JOSEPH W. HOWARD, Chief Judge

/s/ Peter J. Eckerstrom PETER J. ECKERSTROM, Presiding Judge