Lead Opinion
Thе 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 faсt, 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 Cоunty 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 Carrоll 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 U.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,
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,
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,
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:
I. 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 prоliferation 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 sepаrate volitional acts required to obtain and store it.” State v. Multaler,
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
The defendant contends that the legislature intended each “distinct visual reрresentation” 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. The statutory lаnguage at issue unambiguously demonstrates that the possession of “any” visual representation constitutes a separate offense, regardless of whether that visual representation is a duplicate copy of another visual representation. “If the legislature had intended possession, regardless of the number of [visual representations], to be the unit of prosecution, it could have phrased the statute accordingly; e.g., ‘it is unlawful to possess one or more [visual representations of a child engaging in sexual activity].’” State v. Stratton,
The defendant also argues that because the statute is ambiguous, the rule of lenity applies. The rule of lenity “forbids interpretation of a federal criminal statute so as to increase the statutory penalty where Congress’ intent is unclear”; it “is applicable only where statutory ambiguity has been found.” Cobb,
Additionally, the defendant asserts that our interpretation of the statute will lead to absurd results such as permitting multiple punishments of a defendant for multiple images contained on a computer hard drive, where the hard drive has backed up those images automatically. Such a result may well be distinguishable, however this case is not before us.
Therefore, for all of the reasons set forth above, we conclude that the trial court did not err when it denied the defendant’s motion to dismiss the Carroll County indictments. Subjecting him to punishment for these indictments did not violate the Federal Double Jeopardy Clause’s protection against multiple punishments forthe same offense.
Affirmed.
Dissenting Opinion
dissenting. I would hold that the statute is ambiguous, apply the rule of lenity, and vacate the defendant’s convictions. Accordingly, I respectfully dissent.
I
The Federal Double Jeopardy Clause “does not prohibit the imposition of all additional sanctions that could, in common parlance, be described as punishment.” Hudson v. United States, 522 U.S. 93, 98-99 (1997) (quotations omitted). Instead, it “protects оnly against the imposition of multiple criminal punishments for the same offense,
Where, as here, a defendant asserts a double jeopardy violation, arguing that he is being punished multiple times under the same statute for the same offense, courts must inquire what “unit of prosecution” was intended by the legislature as the punishable act. Sanabria v. United States,
II
To be sure, the legislature could make the possession of each individual picture — whether an identical copy of another picture or not — a crime. The question presented by this appeal, however, is whether it did. Answering this question requires a determination as to whether the legislature intended the five images at issue to constitute different “units of рrosecution” for which the defendant can be punished separately under the statute. In making this determination, we construe Criminal Code provisions according to the fair import of their terms and to promote justice. RSA 625:3 (1996); State v. Porelle,
The plain language of the statute does not provide a clear answer. RSA 649-A:3, 1(e) (Supp. 2006) provides, “A person is guilty of a felony if such person: ... [k]nowingly buys, procures, possesses, or controls any visual representation of a child engaging in sexual activity.” Thus, pursuant to the statute, the “unit of prosecution” is any “visual representation.” A visual representation is 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). The phrase “any pose, play, dance or other performance” is ambiguous. On one hand, it could mean, as the majority holds, each individual picture. It could, however, be read to mean that identical copies of pictures are not separate visual represеntations because each identical copy contains the same identical pose. Where the legislature wanted to penalize conduct involving copies of pornographic images, it was able to do so in clear and plain language. See RSA 649-B:3,1(b) (Supp. 2006). Here, it did not.
While the majority cites State v. Cobb,
The majority also cites State v. Multaler,
Furthermore, the majority’s interpretatiоn of the word “any” is not a universally held position. For example, one court held:
If the word “a” is used, the courts have discerned a legislative intent that each item of contraband be the basis for a separate unit of prosecution; if the word “any” is used, the courts have discerned a legislative intent that all of the contraband be viewed in the episodic sense with only a single unit of prosecution intended.
State v. Farnham,
Nor does the statutory scheme, when viewed in its entirety, make clear what “unit of prosecution” the legislature intended to punish. RSA 649-A:l (1996) sets forth the legislature’s statement of its purposes in enacting the statute. It provides:
Declaration of Findings and Purposes.
I. The legislature finds that there has been a proliferation of ' exploitation of children through their use as subjects in sexual performances. The care of children is a sacred trust and should not be abused by those who seek to profit through a commercial network based upon the exploitation of children. The public policy of the state demands the protection of children from exploitation through sexual performances.
II. It is the purpose of this chapter to facilitate thе prosecution of those who exploit children in the manner specified in paragraph I. In accordance with the United States Supreme Court’s decision in New York v. Ferber, this chapter makes the dissemination of visual representations of children under the age of 16 engaged in sexual activity illegal irrespective of whether the visual representations are legally obscene; and the legislature urges law enforcement officers to aggressively seek out and prosecute those who violate the provisions of this chapter.
Although both of these paragraphs emphasize the indisputably important interest in protecting children from exploitation, neither sheds any light upon whether the legislature viewed the possession of, for example, five identical copies of an image to be a more serious offense than the possession of, for example, four. Nor, upon review, does the legislative history shed any light on this issue. Thus, since the phrase “visual depiction” is ambiguous, we must turn to the rule of lenity.
Ill
“The rule of lenity is not to be applied lightly: it applies only if, after seizing everything from which aid can bе derived, [the court] can make no more than a guess as to what [the legislature] intended.” United States v. Rolfsema,
Under the rule of lenity, grievous ambiguity in a penal statute is resolved in the defendant’s favor. The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree. Rather, the rule only applies if thеre is a grievous ambiguity or uncertainty in the statute.
United States v. Councilman,
Here, the statute contains textual ambiguity and, for the reasons stated above, neither the plain language of the statute, nor its legislative history provides any clarity. See, e.g., Dixson v. United States,
IV
Using a possession offense to punish a defendant for possessing identical copies of an image does not appeal to a sense of fairness. It would make little sense for a defendant who possesses five identical copies of an image to be punished with five separate felony convictions, while anоther defendant who possesses three or four identical images receives only three or four such convictions. The legislature has created other means to punish this conduct.
For example, although it is a very real concern that a defendant who possesses multiple copies of an image will sell or distribute at least some of those copies to оther individuals, our statute punishes sales and distribution separately from possession. Compare RSA 649-A:3, 1(a) with RSA 649-A:3,1(e). Since our legislature has created a separate mechanism to punish individuals who sell or distribute child pornography, it is through that mechanism that such conduct should be punished. Likewise, since our legislature has created a separate mechanism for punishing individuals who reproduce child рornography through computerized means, see RSA 649-B:3, 1(b), it is through that mechanism that such conduct could also potentially be punished. The conduct at issue here, while grave, seems to have been cabined into a crime where it simply does not fit.
To the extent a defendant has a large quantity of identical pornographic images, the quantity of images can be used as evidence in connection with, for example, a prosecution for selling or delivering pornography under RSA 649-A:3, 1(a) or for reproducing images contrary to RSA 649-B:3, 1(b). This approach is consistent with how courts have analyzed “unit of prosecution” and double jeopardy issues in drug cases prosecuted under statutes criminalizing possession of, possession with intent to distribute, and distribution of cоntrolled substances. See, e.g., Commonwealth v. Rabb,
V
Finally, the majority’s holding is decided solely under the Federal Constitution. Nothing in today’s opinion prevents another