State v. Ravell

922 A.2d 685, 155 N.H. 280, 2007 N.H. LEXIS 58
CourtSupreme Court of New Hampshire
DecidedApril 19, 2007
Docket2006-040
StatusPublished
Cited by21 cases

This text of 922 A.2d 685 (State v. Ravell) 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. Ravell, 922 A.2d 685, 155 N.H. 280, 2007 N.H. LEXIS 58 (N.H. 2007).

Opinions

DALIANIS, J.

The defendant, Nathan Ravell, appeals his conviction after a bench trial in Superior Court (O’Neill, J.) on nine counts of possession of child pornography in violation of RSA 649-A:3 (Supp. 2006). We affirm.

The following appears in the record: The defendant was arrested when he was preparing to meet with someone whom he believed was a fourteen-year-old boy, but who was, in fact, an undercover police officer. At the time of his arrest, the defendant possessed a CD-ROM containing pornographic images of children in violation of RSA 649-A:3, 1(e), which makes it a felony for a person to knowingly “buy[], procured, possess[], or control[] any visual representation of a child engaging in sexual activity.” After pleading guilty, the defendant was convicted in Cheshire County Superior Court and sentenced for possession of child pornography.

Subsequently, the defendant was charged in Carroll County with possessing pornographic images of children found on his home computer. Among those images were five that the Carroll County Superior Court found were “the same” as those on the CD-ROM that had been the basis for the Cheshire County convictions. The defendant moved to dismiss the Carroll County indictments, citing his right to be shielded from multiple punishments for the same offense under the Double Jeopardy Clauses of the Federal and State Constitutions. See U.S. CONST, amend. V; N.H. Const, pt. I, art. 16. The trial court denied this motion.

On appeal, the defendant argues that the trial court erred by denying his motion to dismiss. He urges us to vacate his convictions and sentences on the Carroll County indictments, arguing that they violate the prohibition against double jeopardy under the Federal Constitution. He does not advance a double jeopardy argument under the State Constitution.

The Double Jeopardy Clause of the Federal Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. CONST, amend. V; see Brown v. Ohio, 432 [282]*282U.S. 161, 164 (1977). It “protects a defendant’s rights in three ways: First, it protects against a second prosecution for the same offense after an acquittal. Second, it protects against a second prosecution for the same offense after a conviction. Third, it protects against multiple punishments for the same offense.” State v. Bailey, 127 N.H. 811, 814 (1986) (quotation omitted); see United States v. Ursery, 518 U.S. 267, 273 (1996). The defendant asserts a violation of the third category of protections. To the extent that he asserts a violation of the second category of protections, this argument is not developed, and we decline to review it. In the Matter of Hampers & Hampers, 154 N.H. 275, 291-92 (2006). We therefore focus our discussion upon whether, by denying his motion to dismiss the Carroll County indictments, the trial court subjected the defendant to multiple punishments for the same offense.

To determine whether a defendant is subject to multiple punishments for the same offense, we must determine the “unit of prosecution” intended by the legislature. State v. Cobb, 143 N.H. 638, 647 (1999) (federal double jeopardy analysis); see Sanabria v. United States, 437 U.S. 54, 69-70 (1978). ‘We give the language of a statute its commonsensical meaning.” Cobb, 143 N.H. at 647 (quotation omitted).

RSA 649-A:3, 1(e) pertains to “any visual representation of a child engaging in sexual activity.” “Visual representation” is further defined as “any pose, play, dance or other performance, exhibited before an audience or reproduced in or designed to be reproduced in any book, magazine, pamphlet, motion picture film, photograph or picture.” RSA 649-A:2, IV (1996).

We have already held that this language “shows a legislative intent that the displaying or possessing of each photograph constitutes a separate offense.” Cobb, 143 N.H. at 647 (emphasis added). “The legislature intended the unit of prosecution to be each separate book, magazine, pamphlet, motion picture film, photograph, or picture.” Id. at 647-48. Put another way, the legislature intended the unit of prosecution to be each separate visual representation or each image. Here, therefore, it did not violate the Federal Double Jeopardy Clause to punish the defendant for each image he possessed. Consistent with the legislature’s intent, he could be punished in Cheshire County for the five images he possessed on the CD-ROM and punished in Carroll County for the identical five images he possessed on his computer hard drive without violating double jeopardy.

We find support for our interpretation of the statute in RSA 649-A:l (1996), the legislature’s statement of intent. RSA 649-A:l reads in pertinent part:

[283]*283I. The legislature finds that there has been a proliferation of exploitation of children through their use as subjects in sexual performances....
II. ... [T]he legislature urges law enforcement officers to aggressively seek out and prosecute those who violate the provisions of this chapter.

The purpose of the statute, therefore, is to prevent the proliferation of child pornography through the aggressive enforcement of the statute’s provisions. It is consistent with this intent to punish the defendant separately for each image possessed on his CD-ROM and computer hard drive. Given this intent, “it is unreasonable to suggest that the legislature intended a single penalty without regard for the volume of child pornography ... [and] the number of separate volitional acts required to obtain and store it.” State v. Multaler, 643 N.W.2d 437, 451 (Wis. 2002) (quotation, brackets and ellipsis omitted). By using the word “any,” “a term of great breadth” which, “[r]ead naturally ... has an expansive meaning,” United States v. Ickes, 393 F.3d 501, 504 (4th Cir. 2005) (quotation omitted), the legislature gives this statute great reach, consistent with its stated intent. The small unit of prosecution was intended to stop proliferation in each and every instance.

Courts in other jurisdictions have similarly interpreted their analogous state statutes. In Multaler, for instance, the court construed a statute that criminalized the possession of “any undeveloped film, photographic negative, photograph, motion picture, videotape or other pictorial reproduction ... of a child engaged in sexually explicit conduct.” Multaler, 643 N.W.2d at 450 (quotation omitted). The court ruled that the legislature’s use of the word “any” evinced its intent to prosecute for “each photograph or pictorial reproduction.” Id. at 451. The court concluded that “each image [the defendant] possessed could be prosecuted separately” and punished separately. Id.

The defendant contends that the legislature intended each “distinct visual representation” to be the unit of prosecution and that the prohibition against double jeopardy is triggered by punishment for “duplicate copies of the same visual representation.” He asserts that because the images on the CD-ROM and on his hard drive were identical, he could not be punished separately for possessing each image. We disagree.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Van Uden
2024 N.H. 47 (Supreme Court of New Hampshire, 2024)
Payne v. State
243 Md. App. 465 (Court of Special Appeals of Maryland, 2019)
State v. Sambath Pal
Wisconsin Supreme Court, 2017
State v. Balch
111 A.3d 672 (Supreme Court of New Hampshire, 2015)
People v. Sedelsky
2013 IL App (3d) 111402 (Appellate Court of Illinois, 2013)
In re Kirby
2012 VT 72 (Supreme Court of Vermont, 2012)
State v. Liberty
370 S.W.3d 537 (Supreme Court of Missouri, 2012)
STATE OF ARIZONA v. STEVE FRANK McPHERSON
269 P.3d 1181 (Court of Appeals of Arizona, 2012)
Jones v. State
323 S.W.3d 885 (Court of Criminal Appeals of Texas, 2010)
Jones, Stephen Bernard
Court of Criminal Appeals of Texas, 2010
Pontius v. State
930 N.E.2d 1212 (Indiana Court of Appeals, 2010)
State v. Hynes
978 A.2d 264 (Supreme Court of New Hampshire, 2009)
State v. Reeves
144 Wash. App. 422 (Court of Appeals of Washington, 2008)
State v. Ravell
922 A.2d 685 (Supreme Court of New Hampshire, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
922 A.2d 685, 155 N.H. 280, 2007 N.H. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ravell-nh-2007.