Moore v. State

• Decision Date: 11 August 2005
• Docket Number: No. 143 September Term 2004.,143 September Term 2004.
• Citation: 388 Md. 446,879 A.2d 1111
• Parties: Jonathan George MOORE v. STATE of Maryland.
• Court: Maryland Court of Appeals

879 A.2d 1111

388 Md. 446

Jonathan George MOORE v. STATE of Maryland.

No. .

Court of Appeals of Maryland.

August 11, 2005.

Claudia A. Cortese, Assistant Public Defender (Nancy S. Forster, Public Defender, of Baltimore) on brief, for appellant.

Devy Patterson Russell, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, of Baltimore) on brief, for appellee.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

RAKER, J.

The question we must decide in this case is whether a person who downloads onto a computer visual representations of a minor engaged in obscene acts or sexual conduct violates Md.Code (2002, 2004 Cum.Supp.), § 11-207(a)(3) of the Criminal Law Article¹ proscribing the "use [of] a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct." We shall answer that question in the negative and reverse.

I.

Moore was indicted by the Grand Jury for St. Mary's County in a two count indictment, alleging violations of § 11-207(a)(3) and § 11-208(a) respectively. Count I alleged that Moore had "us[ed] a computer to depict and describe a minor engaging in an obscene act, sadomasochistic abuse, and sexual conduct" in violation of § 11-207(a)(3). Count II alleged that Moore "knowing[ly] possess[ed] a film, videotape, photograph, and other visual representation depicting an individual under the age of 16 years ... engaged in sexual conduct" in violation of § 11-208(a).

Before the Circuit Court on June 21, 2004, Moore entered a plea of not guilty and proceeded on an agreed statement of facts. The State read the following agreed statement of facts into the record:

"[O]n or about October 7, 2003 a search and seizure warrant was served on the defendant's residence located at apartment 1012 Valley Court, Lexington Park, Saint Mary's County. The defendant, Jonathan G. Moore, was present when the warrant was served. He would be identified as the gentleman on my left. Upon entering the home, Detective Hall read Mr. Moore his Miranda rights. Mr. Moore acknowledged that he understood his rights and voluntarily waived those rights. The detective located a computer in the residence, which the defendant identified as being his computer. The defendant then voluntarily assisted the detectives in examining the computer. The defendant opened a file under My Documents named `Cuts', quote unquote. The detective observed numerous photographic images in this file which included females who appeared to be under the age of 16. One file showed a female who appeared to be approximately three to five years old being penetrated in her vagina by a penis from an adult male. The defendant then opened the Windows Media Player on his computer, which listed numerous video files. He stated he knowingly down loaded from a web site named Kazza, K-A-Z-Z-A, dot com. Detectives then viewed the video file, and I will describe one of them, I think [defense counsel] and I agreed there are several others of this ilk, rather than go through them all. I will describe one of them. It was titled `Four Year Old Refusal Come Shot.' The three second video shows an adult male ejaculating on the face and mouth of a nude white female who appears to be three to four years old.

"A further search of the residence revealed computer printouts near the defendant's bed. Many of the images on the printouts were females who appeared to be under the age of 16 and engaged in sexual intercourse and various sex acts.

"The defendant stated he printed those pictures from various web sites. A green, unlabeled floppy disc was also recovered from the home. The disc contained a file named `cuts.' Inside the file were 11 photographs, some of which showed females who appeared to be under age of 16 years old engaged in sexual intercourse and various sex acts.

"The computer and other described items were seized by the detective. The computer case sent to the Computer Crimes Unit of the Maryland State Police Crime Lab where it was examined by a computer technician. An examination of the defendant's computer revealed it had two hard drives. An examination of the first hard drive revealed the following, 47 images of individuals who appeared to be under the age of 16 engaged in sexual intercourse and various sex acts, 32 images of individuals who appeared to be under the age of 16 in various stages of undress.

"Examination of the second hard drive revealed the following, 28 images of individuals who appeared to be under the age of 16 engaged in sexual intercourse and various sex acts, 13 images of individuals who appeared to be under the age of 16 and in various stages of undress, 11 video clips showing individuals who appeared to be under the age of 16 and engaged in intercourse and various sex acts.

"The defendant was interviewed at his house himself and gave a voluntary statement to the detectives. He stated that he downloaded the material from a web site named Kazza dot com, he stated he had not distributed the material to anyone nor has he engaged in making any pictures from the videos himself. He stated he began down loading the child pornography from late August of 2003 and that he used it for his own sexual gratification. The parties agreed to stipulate that the — a finder of fact would determine the age of all of the individuals on the pictures and videos and were engaged in sexual intercourse and sexual acts would be under 16 years old.

"The State is not alleging the defendant was involved in the taking — in the taking of the pictures or videos recovered. The State is not alleging the defendant distributed any of the recovered images or videos or that the defendant did possess them with the intent to distribute them.

"The computer which contained the aforementioned images or photos and images were recovered from the defendant's residence which was located in Saint Mary's County."

Moore moved for a judgment of acquittal as to Count I, arguing that his conduct was not prohibited by § 11-207(a)(3). The court denied the motion and found Moore guilty of both counts in the indictment. The court reasoned that the ordinary, plain meaning of the statutory language proscribed the conduct at issue and that Moore's acts fell within the intended scope of the statute. The court merged the two counts for sentencing purposes and sentenced Moore to a term of three years incarceration on Count I, with all but nine months suspended.²

Moore noted a timely appeal to the Court of Special Appeals. Before that court considered the case, we granted certiorari on our own initiative to consider the following question:

"Does a person who downloads visual representations of a minor engaged in obscene acts or sexual conduct from a computer violate Md. Crim Law, § 11-207(a)(3)'s proscription against `us[ing] a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse or sexual conduct?'"

385 Md. 511, 869 A.2d 864 (2005).

II.

Under § 11-207(a)(3), a person may not "use a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct...." To resolve the issue before us, we must interpret the phrase "to use a computer to depict or describe."

Interpretation of a statute is a question of law, and, therefore, we review de novo the decision of the Circuit Court. See Collins v. State, 383 Md. 684, 688, 861 A.2d 727, 730 (2004)

. The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature. Piper Rudnick v. Hartz, 386 Md. 201, 218, 872 A.2d 58, 68 (2005). In ascertaining legislative intent, we first examine the plain language of the statute, and if the plain language of the statute is unambiguous and consistent with the apparent purpose of the statute, we give effect to the statute as it is written. Id.

When there is more than one reasonable interpretation of a statute, the statute is ambiguous. Comptroller v. Phillips, 384 Md. 583, 591, 865 A.2d 590, 594 (2005). If the statutory language is ambiguous, we resolve that ambiguity in light of the legislative intent, considering the legislative history, case law, and statutory purpose. See id. We consider not only the ordinary meaning of the words, but also how that language relates to the overall meaning, setting, and purpose of the act. See Deville v. State, 383 Md. 217, 223, 858 A.2d 484, 487 (2004)

. We take into account the history of the statute, the evils or mischief the Legislature sought to remedy, and the "prevailing mood of the legislative body with respect to the type of criminal conduct involved." Gargliano v. State, 334 Md. 428, 436, 639 A.2d 675, 678 (1994) (quoting Randall Book Corp. v. State, 316 Md. 315, 327, 558 A.2d 715, 721 (1989)). We seek to avoid construction of a statute that is unreasonable, illogical, or inconsistent with common sense. See Gwin v. MVA, 385 Md. 440, 462, 869 A.2d 822, 835 (2005). We construe a statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory. Phillips, 384 Md. at 591,

865 A.2d at 594.

III.

The federal government and almost every state in the country have enacted laws related to child pornography. See New York v. Ferber, 458 U.S. 747, 758, 102 S.Ct. 3348, 3355, 73 L.Ed.2d 1113 (1982)

(stating that "virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating `child pornography'"); Outmezguine v. State, 97 Md.App. 151, 162, 627 A.2d 541, 546 (1993),

aff'd

335 Md. 20, 641 A.2d 870 (1994) (noting that by 1982, the federal government and forty-seven states had enacted statutes specifically addressing child pornography). The Supreme Court has recognized that "[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." Ferber, 458 U.S. at 757,

102 S.Ct. at 3355. In Ferber, the Court...