*1 (2003) Wоod, (finding thereby.”); prejudiced as a referred to defendant when prosecutor no misconduct prosecutorial the trial court agree We during closing argument). “child molester” a reasonable probability failed to demonstrate that the defendant objected if his counsel had trial would have been different result of his Accordingly, the defendant was analogy. prosecutor’s рredator Flynn, failure to do so. See N.H. at 390. by his counsel’s prejudiced
Affirmed. Galway Hicks, JJ., Duggan, concurred. Dalianis, Carroll No. 2006-040 Hampshire
The State of New Nathan Ravell 22, 2007 Argued: February April Opinion Issued: *2 (Peter Roth, C.L. senior assistant Kelly Ayotte, attorney general A. on the for the State. attorney general, orally), brief Rothstein, defender, Concord, chief on the deputy appellate David M. оrally, brief and for the defendant. Ravell, defendant, J. The conviction after appeals Nathan his
DALIANIS, J.) (O’Neill, trial in Court on nine Superior possession bench counts 2006). child in violation of RSA 649-A:3 pornography (Supp. We affirm. The in the record: The defendant following appears was arrested when he preparing was meet with someone whom he believed was a fourteen- was, fact, year-old boy, but who in an undercover officer. At the time police arrest, of his the defendant possessed containing CD-ROM pornographic images 649-A:3, 1(e), of children in violation of RSA which it a makes for a felony person knowingly “buy[], procured, possess[], control[] any of a child engaging activity.” sexual After pleading guilty, the defendant was convicted Cheshire County Superior Court and sentenсed for child pornography.
Subsequently, the defendant charged County in Carroll possessing of children pornographic images computer. found on his home Among were five that the Carroll County Superior Court found were “the same” as those on the CD-ROM that had been basis for the Cheshire The County convictions. defendant moved to dismiss the indictments, Carroll County citing right his to be shielded from multiple punishments for the same offense under the Jeopardy Double Clauses of V; CONST, the Federal and State See U.S. Constitutions. amend. I,pt. Const, art. 16.The trial court denied this motion.
On appeal, argues defendant that the trial court erred by denying his motion to He urges dismiss. us to vacate his convictions and sentences indictments, on the Carroll County arguing they violate the prohibition against jeopardy double under thе Federal Constitution. He does not advance a jeopardy argument double under the State Constitution. Jeopardy Double Clause of the Federal Constitution provides
that no shall “be person subject same offense to be twice put CONST, V; Ohio, of life or limb.” U.S. amend. see Brown v. (1977). It “protects a rights First, defendant’s in three ways: protects against a second prosecution for the same offense after an acquittal. Second, it protects against a second prosecution for the same Third, offense after a conviction. it protects against multiple punishments for the same (1986) offense.” State v. Bailey, 127 N.H. omitted); (1996). see United Ursery, States v. 518 U.S. 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, we decline to review it. In the Matter of & Hampers 275, 291-92 Hampers, We therefore focus our whether, discussion upon by denying his motion to dismiss the Carroll County indictments, the trial subjected court the defendant to multiple punishments for the same offense.
To determine whether a defendant
is subject
to multiple
*3
punishments
offense,
for the same
we must determine the “unit of
prosеcution” intended
legislature.
Cobb,
638,
647
(1999) (federal double jeopardy analysis); see
Sanabria v. United
54,
(1978).
437 U.S.
‘We
give
language of a statute its
Cobb,
commonsensical meaning.”
omitted).
We have
held
already
that this language “shows a legislative intent
that the displaying or possessing of each photograph constitutes a separate
Cobb,
added).
offense.”
We find support 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 a рroliferation finds there The that has been I. in sexual subjects their use as through of children exploitation performances.... law enforcement officers to urges [T]he
II. ... those who violate the out and prosecute seek aggressively chapter. provisions this statute, therefore, proliferation prevent purpose enforcement of statute’s through aggressive
child pornography the defendant punish It is this intent provisions. consistent with computer on hard image possessed for each his CD-ROM separately intent, suggest drive. this “it is unreasonable to Given child single regard without volume penalty required acts ... volitional pornography [and] number 2002) (Wis. Multaler, v. 451 obtain and store it.” State 643 N.W.2d omitted). “a using “any,” the word (quotation, ellipsis By brackets and which, naturally expansive ... has an great term of breadth” “[r]ead (4th Cir. Ickes, meaning,” United States F.3d reach, omitted), great (quotation legislature gives unit of consistent with its stated intent. small stop proliferation every intended to in each instance. their interpreted analogous
Courts in other have jurisdictions similarly Multaler, instance, In state statutes. the court construed statute film, “any undeveloped photographic criminalized nеgative, pictorial other photograph, picture, videotape motion Multaler, ... of child conduct.” reproduction engaged sexually explicit The court ruled that N.W.2d legislature’s use of word evinced intent for “each “any” prosecute *4 The that pictorial reproduction.” Id. at 451. court concluded separately” “each image prosecuted defendаnt] could be possessed [the Id. punished separately. and the intended each
The defendant contends that “distinct to unit and that representation” visual be the for is prohibition against triggered by punishment double that “duplicate representation.” He asserts copies of same visual identical, and hard were images because the on the CD-ROM on his drive image. he each We could not be punished separately possessing The disagree. statutory language unambiguously at issue demonstrates that “any” representation visual constitutes offense, regardless duplicate of whether that visual representation had copy representation. of another visual “If the regardless of the possession, number of representations], [visual to be the of prosecution, phrased unit it could accordingly; have statute ‘it is e.g., unlawful one more possess representations [visual of a child engaging Stratton, in sexual activity].’” intent
legislature’s combat the proliferation of child pornography targeting any of a child engaged activity. sexual To the statute in the interpret way the defendant suggests would dilute far-reaching proscription.
The defendant argues also that because the ambiguous, statute is rule lenity applies. lenity rule of “forbids interpretation a federal criminal statute so the statutory increase penalty Congress’ where unclear”; intent is it “is applicable only where statutory ambiguity has Cobb, been found.” (quotations at 647 Because we hold unambiguous, statute is the rule lenity does not apply. Additionally, the defendant our asserts that interpretation lead will to absurd results such as permitting multiple punishments of defendant for multiple images drive, contained on a computer hard where the hard drive has backed up Such a automatically. result may well distinguishable, case however this is not before us.
Therefore, for all of the above, reasons set forth we conclude that court trial did not err it when denied the dеfendant’s motion to dismiss the
Carroll County indictments. him Subjecting punishment these indictments did not violate the Federal Jeopardy Double Clause’s protection against multiple punishments forthe same offense.
Affirmed. Galway JJ., J., with whom Hicks, concurred; Duggan, Broderick, C.J., joined, dissented. J., dissenting. I would hold the statute ambiguous,
DUGGAN, apply lenity, rule of vacate defendant’s convictions. I Accordingly, respectfully dissent.
I Thе Federal Double Clause “does Jeopardy prohibit imposition could, of all additional sanctions that in common parlance, be described as punishment.” (1997) Hudson United 522 omitted). Instead, (quotations “protects only against imposition multiple punishments offense, criminal and then only same when (citations omitted). such occurs in successive proceedings.” Id. “The Clause ... does no more prevent than court sentencing *5 from prescribing greater punishment legislature than the intended.” United
285 omitted). 2004) (1st “The Patel, 108, 114 Cir. v. F.3d States 370 punishment multiple Clause on Jeopardy of the limited effect Double define criminal offenses power to principle claims derives from Id. to belongs solely legislature.” ... prescribe punishments violation, arguing a double Where, here, a defendant asserts as same times under the statute multiple being that he is punished of intended offense, “unit prosecution” must what inquire same courts States, 437 Sanabria v. United act. punishable by (1989). Stratton, 451, v. 455 State (1978); “[0]nce [the 54, 69 U.S. of the prescription offense statutory by has a legislature] defined of prescription scope determines unit of prosecution, allowable Sanabria, (quotations 69-70 ....” at afforded protеction of is a unit Identifying appropriate citations Verrecchia, 196 F.3d United States v. statutory interpretation. matter 1999). (1st legislative or ambiguous is Cir. WTere statute resolve the lenity the rule of unclear, apply courts should intent is State v. Bailey, 81, 83 (1955); Bell United v. 349 U.S. ambiguity. (1986). N.H.
II
sure,
of each individual
To
could make
be
picture or not—a crime. The
copy
an identical
of another
picture —whethеr
however,
Answering
is
did.
appeal,
this
whether
question presented
as to whether the
this
determination
question requires
to constitute different “units
the five
issue
can be
under
punished separately
for which the defendant
prosecution”
determination,
In
we construe Criminal Code
making
the statute.
promote
fair
of their terms and to
according
import
provisions
Porelle,
(2003).
(1996);
State
RSA 625:3
justice.
answer. RSA
provide
clear
plain language
1(e)
felony
if
649-A:3,
person
guilty
“A
is
such
(Supp.
provides,
or
procures, possesses,
any
controls
visual
person:
[k]nowingly buys,
...
Thus,
activity.”
pursuant
a child
in sexual
representation
engaging
statute,
A
any
is
“visual
prosecution”
representation.”
the “unit
pose,
or other
“any
play,
visual
defined as
dance
designed
an
or
in or
performance,
reproduced
exhibited before
audience
film,
book,
any
magazine, pamphlet,
picture
be
motion
reproduced
phrase “any
IV
pose,
picture.”
hand, it
ambiguous.
On one
could
play,
performance”
dance
other
could,
mean,
holds,
however,
It
picture.
as the
each individual
majority
are not
copies
pictures
read to mean that identical
copy
identiсal
contains the same identical
representations because each
*6
pose. Where the legislature
penalize
wanted to
conduct involving copies of
it was
so in
pornographic images,
plain
able to do
clear and
language. See
2006).
649-B:3,1(b)
Here, it did
(Supp.
not.
Cobb,
(1999),
While the
cites
majority
as
support for the
that “the
position
legislature intended the unit of
рrosecution
be each
or image,” Cobb is
case,
not controlling here because in that
the court
noted
specifically
that
Cobb,
Here,
contrast,
“[e]ach
is different.”
The majority
2002),
also cites State v.
Furthermоre, the majority’s interpretation the word is not a “any” held For universally position. one court example, held: used, If the word “a” courts have discerned legislative that intent each item of contraband the basis for a separate prosecution; used, unit of if the “any” word the courts have legislative discerned a intent all of the contraband be viewed in episodic sense with only single unit of prosecution intended. Farnham, 12, 14 (Fla.
State 2000). 2d So. Dist. Ct. App. scheme, Nor statutory when viewed in its entirety, make clear prosecution” what “unit of punish. RSA 649-A:l (1996)sets forth the legislature’s statement of purposes enacting in statute. It provides: Findings
Declaration of and Purposes. ' The legislature I. finds that proliferation there has been a exploitation of children their through subjects use in sexual performances. The care of is a children trust sacred and should not be abused profit who seek through commercial network based upon of children. exploitation The public of policy protection state demands the of children from sexual exploitation through performances. to facilitate the
II. of this purpose chapter It is the specified сhildren in the manner exploit of those who Supreme States I. In with the United accordance paragraph Ferber, makes the chapter York v. decision New Court’s under the age of children representations dissemination of visual of whether the activity irrespective illegal of 16 sexual engaged obscene; are legally visual representations seek out and aggressively officers to urges law enforcement *7 of provisions chapter. this those who violate prosecute indisputably important emphasize these Although paragraphs both of any light from sheds in children neither exploitation, interest protecting of, for five possession example, viewed the legislature whether the upon offense than the to be a more serious image of an copies identical Nor, review, of, legislative does upon for four. possession example, Thus, phrase since the “visual light on this issue. history any shed rule lenity. must turn to the of ambiguous, is we depiction” Ill if, lightly: applies only is to be it after lenity
“The rule of not applied derived, make no court] from aid can can seizing [the which be everything intended.” United States as to guess legislature] [the morе than a what (1st 2006) 75, Rolfsema, 468 F.3d Cir. 80 ambiguity penal of in a statute is lenity, grievous
Under the rule simple in the favor. The existence some resolved defendant’s however, not sufficient to warrant ambiguity, statutory rule, are ambiguous of that for most statutes some application Rather, grievous if is a degree. only the rule there applies in the statute. ambiguity uncertainty (1st Councilman, United States v. 418 83 Cir. (quotations F.3d Parkеr, omitted); see also State v. and citations Here, and, ambiguity contains textual reasons stated statute statute, above, legislative history plain neither nor language See, Dixson v. United e.g., clarity. provides any (1984) (“If our legislative history clarify statutory language, fails to [the] rule of the statute favor of... lenity compel would us construe case[].”). Furthermore, criminal defendant[] th[is] because subjеcted significantly higher result in ambiguity being a defendant can interpreted, ambiguity how it is punishment depending upon Therefore, we should resolve “grievous.” lenity applies the rule lenity that a “unit Accordingly, requires the defendant’s favor. does not prosecution” possession include of identical an copies image which a defendant been already punished. has
IV Using offense to a punish dеfendant for possessing identical of an It copies image appeal to sense of fairness. would make little for a who possesses copies sense defendant five identical of an image punished convictions, five separate felony be with while another defendant or four possesses only who three identical three receives or four such convictiоns. The has created other means to punish this conduct.
For is a example, although very real concern that a defendant who possesses multiple copies image of an will sell distribute least some individuals, to other copies punishes our statute sales and 1(a) separately possession. distribution from RSA Compare 649-A:3,1(e). Since our created separate has meсhanism to punish individuals who sell or child it is pornography, through distribute Likewise, that mechanism that such conduct should punished. since our has created a for punishing mechanism individuals means, who reproduce child pornography through computerized see RSA 649-B:3, 1(b), it is through that mechanism such conduct could also *8 here, potentially punished. The conduct at issue while grave, seems to have been сabined into a crime where it simply not fit.
To the extent defendant has a large quantity identical pornographic images, with, can be used evidence in quantity connection for example, selling delivering for pornography under 1(a) RSA 649-B:3, reproducing images contrary to 1(b). This approach is consistent how courts have “unit analyzed prosecution” and drug double issues in cases under prosecuted of, criminalizing distribute, statutes possession possession with intent See, distribution controlled e.g., substances. Commonwealth v. Rabb, (Mass. 1036, 1041-43 725 N.E.2d (involving sale of charges substances). and intent sell controlled
V Finally, majority’s holding solely decided under the Federal Nothing today’s Constitution. opinion prevents another defendant from bringing Stratton, a state constitutional claim in a case. future See N.H. аt 454 (upholding prosecution on six indictments for six different firearms by “proof a convicted felon because of the elements of the crimes as charged actuality require [would] a difference Sanchez, 625, 630 see also State v. evidence”); reasons, I dissent. respectfully foregoing Accordingly, BRODERICK, C.J., dissent. joins in the Grafton
No. 2006-177 Individually of the Estate as Administratrix Cecere,
Beth Louis T. Cecere Corp. & a. Recreation Loon Mountain 21, 2007 February Argued: April Opinion Issued: