State v. Clark

959 A.2d 229, 158 N.H. 13
CourtSupreme Court of New Hampshire
DecidedOctober 30, 2008
DocketNo. 2008-019
StatusPublished
Cited by5 cases

This text of 959 A.2d 229 (State v. Clark) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Clark, 959 A.2d 229, 158 N.H. 13 (N.H. 2008).

Opinion

Galway, J.

The defendant, Peter Clark, appeals his convictions for possession of child pornography, see RSA 649-A:3 (2007), following a bench trial in Superior Court (O’Neill, J.) We affirm.

The following facts are supported by the record. In 2002 and 2003, the defendant became the subject of an investigation involving his internet communications with Detective James McLaughlin of the Keene Police Department, whom the defendant believed to be a fourteen-year-old boy. The defendant and Detective McLaughlin, as the fictitious child, communicated regularly via internet “chats,” or instant, real time, messaging. These conversations were of a graphic sexual nature. The defendant was arrested during his attempt to meet the fictitious child.

Following his arrest, police executed a search warrant at the defendant’s residence, seizing his computer. Special Agent Andrew Murphy, a computer forensic specialist for the United States Secret Service, subsequently conducted a forensic examination of the computer, which exposed the ten images that are the basis for the underlying indictments.

At trial, the State moved to allow the fact finder to determine whether the images depicted real children under the age of sixteen based solely upon those images. The defendant objected. The trial court ruled that, “the State is not required, as a matter of law, to present any additional evidence or expert testimony beyond the images themselves to meet its burden of proof.” It noted, however, that the State had provided additional competent expert evidence; namely, the testimony of Agent Murphy. The trial court concluded that “the subject images in this matter are beyond a reasonable [15]*15doubt, of real children under the age of 16,” and found the defendant guilty of ten counts of possession of child pornography.

On appeal, the defendant argues that the State presented insufficient evidence that: (1) the images were of real minor children; and (2) that he knowingly possessed child pornography. We address each argument in turn.

In order to prevail upon his challenges to the sufficiency of the evidence, the defendant must prove that “no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt.” State v. MacDonald, 156 N.H. 803, 804 (2008).

The defendant argues that the images in this case, standing alone, were insufficient to prove that actual children were depicted. He asserts that, “[g]iven the current state of technology, ordinary people have difficulty in differentiating between virtual and real images,” necessitating evidence beyond the images themselves. He further contends that the images in this case, as introduced as exhibits at trial, were “strikingly small, approximately two inches by three inches in size,” “somewhat grainy and unclear,” and consisting of “grids of individually colored pixels,” making it impossible to conclude beyond a reasonable doubt that real children were depicted. We disagree.

In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the United States Supreme Court declared unconstitutional as overbroad section 2256(8)(B) of the Child Pornography Prevention Act of 1996, see 18 U.S.C. §§ 2251 et seq., which prohibited any visual depiction that “is, or appears to be, of a minor engaging in sexually explicit conduct.” Id. at 241 (quotation omitted). This “section capture[d] a range of depictions, sometimes called ‘virtual child pornography,’which include computer-generated images____” Id. The Court reasoned, in part, that it is the method of producing the child pornography, that is, the abuse of real children, which provides the State with its interest in “stamping it out without regard to any judgment about its content.” Id. at 249. The Court recognized that the statutory provision at issue prohibits speech that “records no crime and creates no victims by its production.” Id. at 250.

Consistent with Ashcroft, we have stated that child pornography must depict an actual child in order for its possession to fall outside the protections of the New Hampshire Constitution and within the confines of prohibited conduct under RSA 649-A:3. State v. Zidel, 156 N.H. 684, 693-94 (2008) (plurality opinion). This is so because the purpose of RSA 649-A:3 is to prevent harm to children resulting from their “use as subjects in sexual performances.” Zidel, 156 N.H. at 693 (quotation omitted) (plurality [16]*16opinion); RSA 649-A:l (2007). However, we have never had occasion to address whether additional evidence, beyond the images, is necessary to prove the depiction of a real child. Thus, we look to other jurisdictions for guidance. See State v. O’Maley, 156 N.H. 125, 134 (2007), petition for cert. filed, (U.S. Nov. 7, 2007) (No. 07-7577).

In United States v. Rodriguez-Pacheco, 475 F.3d 434, 438 (1st Cir. 2007), the United States Court of Appeals for the First Circuit determined that the government was not required to present expert testimony in order to prove that a pornographic image depicted a real child. In that case, the defendant pled guilty to possession of at least one image constituting child pornography, and the government sought a sentence enhancement based upon the defendant’s possession of more than ten such images. Id. at 436. The government presented expert evidence that nine of the images depicted a real child, but failed to ask the expert’s opinion as to the remaining images. Id. The defendant argued that the government was required to present expert testimony as to each of the ten images as a matter of law under Ashcroft. Id. at 438. The district court disagreed, and concluded upon its own review that the image omitted from the expert’s opinion depicted a real child, and imposed the sentence enhancement. Id. The First Circuit agreed.

Although the case was decided under a lesser burden of proof in the context of a sentence enhancement, the First Circuit’s reasoning is helpful to our analysis here. Cf. United States v. Wilder, 526 F.3d 1, 11 (1st Cir. 2008), petition for cert. filed, (U.S. Aug. 11, 2008) (No. 08-5831) (citing Rodriguez-Pacheco for proposition that government need not provide expert testimony to prove beyond a reasonable doubt real child was depicted). The court first observed that, in United States v. Nolan, 818 F.2d 1015 (1st Cir. 1987), it had previously “rejected a per se rule that the government must produce expert testimony in addition to the images themselves, in order to prove beyond a reasonable doubt that the images depicted are of real children.” Rodriguez-Pacheco, 475 F.3d at 439. It noted that Ashcroft

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Bluebook (online)
959 A.2d 229, 158 N.H. 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clark-nh-2008.