Rutledge v. State

• Decision Date: 30 April 1999
• Parties: Charles Wayne RUTLEDGE v. STATE.
• Court: Alabama Court of Criminal Appeals

745 So.2d 912

Charles Wayne RUTLEDGE v. STATE.

CR-97-2449.

Court of Criminal Appeals of Alabama.

April 30, 1999.

Rehearing Denied June 18, 1999.

Certiorari Denied October 15, 1999.

Donald Gordon Madison, Montgomery, for appellant.

Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for appellee.

Alabama Supreme Court 1981603.

BASCHAB, Judge.

The appellant, Charles Wayne Rutledge, was indicted for unlawful possession of obscene material with intent to disseminate, a violation of § 13A-12-192(a), Ala. Code 1975; unlawful possession of obscene material, a violation of § 13A-12-192(b); and unlawful production of obscene material, a violation of § 13A-12-197, Ala.Code 1975. The material in question contained visual reproductions of people under 17 years of age. Pursuant to a negotiated agreement, the appellant pled guilty to unlawful possession of obscene material with intent to disseminate and to unlawful possession of obscene material, and the State nol-prossed the unlawful production charge. In accordance with the terms of the agreement, the trial court sentenced him to concurrent terms of eight years in prison. At the time he entered his plea, the appellant reserved the right to appeal the issues discussed in this opinion.

The following evidence established a factual basis for the appellant's guilty pleas. On July 16, 1997, Officer Mike Moon of the Gadsden Police Department obtained a search warrant for the appellant's house, authorizing a search for child pornography on computer diskettes, computer hard drives, videotapes, and photographs. (C.R.23.) The search warrant was based on a statement made by Brian Lloyd, a computer technician who had visited the appellant's home in June 1997, to do some computer work for the appellant. He stated that, as he was deleting some of the unnecessary files on the appellant's computer so that he could install a new hard drive, he noticed a file entitled "models," which contained a picture of model Brooke Shields, who appeared to be very young and who was naked. He also stated that there were other similar pictures in the file, including pictures of children engaged in lewd sexual acts. (C.R.27-28.) According to Lloyd, the appellant was open about his collection of pictures and offered to email Lloyd some of the pictures and the passwords to a variety of Internet sites displaying such material. Lloyd told the appellant he was not interested.

Lloyd further stated that, on another occasion, he visited the appellant to watch a videotaped movie. However, when the appellant played the videotape, an explicit pornographic scene appeared on the television screen. The appellant offered to copy the videotape for Lloyd to view later, but Lloyd declined the offer. Lloyd stated that, during that time, the appellant talked about how he loved to take pictures of naked girls and showed Lloyd a picture of his girlfriend, who was naked. He stated that the appellant indicated that he appreciated girls with "small features." Based on Lloyd's statement, Officer Moon obtained the above-referenced search warrant. During the search, Officer Moon seized a computer hard drive and computer diskettes that contained pornographic material, the subjects of which were children.

I.

The appellant challenges the propriety of his convictions under Alabama's child pornography statutes. Specifically, he argues that, because computer technology and the Internet were either not available or not widely used by the public when the statutes and the amendments thereto were enacted, the Legislature could not have intended for those statutes to encompass the conduct for which he was charged.¹ Therefore, he contends that he should not have been charged under those statutes and that his prosecution under those statutes was an ex post facto application of the law. For these reasons, he also argues that the trial court erroneously denied his motion to suppress the seized evidence.

Section 13A-12-192, Ala.Code 1975, provides:

"(a) Any person who knowingly possesses with intent to disseminate any obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sadomasochistic abuse, sexual intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class B felony. Possession of three or more copies of the same obscene material is prima facie evidence of possession with intent to disseminate the same.

"(b) Any person who knowingly possesses any obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony."

The term "matter," as it is used in § 13A-12-192, is defined as

"[a]ny book, magazine, newspaper, or other printed material, or any picture, photograph, motion picture or electrical or electronic reproduction, or any other articles or materials that either are or contain a photographic or other visual reproduction of a live act, performance, or event."

§ 13A-12-190, Ala.Code 1975 (emphasis added). To address the appellant's argument that his conduct was not prohibited by § 13A-12-192, Ala.Code 1975, we must determine what the Legislature intended to prohibit when it enacted the child pornography statutes.

In determining the proper application of a statute, we have a duty to "`ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained.'" Hunt v. State, 642 So.2d 999, 1028 (Ala.Cr.App. 1993), aff'd, 642 So.2d 1060 (Ala.1994) (quoting Ex parte Holladay, 466 So.2d 956, 960 (Ala.1985)); see also Gholston v. State, 620 So.2d 719 (Ala.1993). In 1978, the Alabama Legislature enacted the first statutes prohibiting the possession, production, and dissemination of child pornography in Alabama, and we interpreted the legislature's intent in enacting those statutes as follows:

"The necessity giving rise to the Alabama Child Pornography Act is that child pornography is different from obscenity in general. That is why the Legislature enacted separate legislation to deal with child pornography. Child pornography is different from general obscenity both in the degree of depravity involved and in the nature and extent of the harm involved. As for depravity, whatever may be said, and has been said, about what consenting adults do with and to each other, nothing so debases civilized society as the defilement of children for purposes of producing photographs like those involved in these cases. To state it simply, there are no further depths to which appellants could have lowered themselves.

"As for the harm involved, what the United States Senate Judiciary Committee said in reporting out a bill which became the Federal Child Pornography legislation is on point:

"`Such encounters cannot help but have a deep psychological, humiliating impact on those youngsters and jeopardize the possibility of healthy, affectionate relationships in the future. Indeed such children often grow up in an adult life of drugs and prostitution. Even more tragic, however, is the fact that many adults who were molested as children tend to become child molesters themselves, thus continuing the vicious cycle. S.Rep.No. 95-438, 95th Cong., 1st Sess. 9 (1977).'

"Whatever the effects of obscene materials on those who view them, as the Senate Judiciary Committee concluded, `the use of children in the production of such materials is a form of child abuse.' Id. at 15.

"The evil that the Legislature sought to remedy with Section 13-7-237 [now 13A-12-197] was not the effect of child pornography on those who viewed it— that evil was treated by the provisions outlawing the dissemination and sale of child pornography. What the Legislature sought to remedy with Section 13-7-237 is another evil, the evil that is involved in the very production of child pornography—the sexual abuse of innocent and helpless children in front of a camera.

"Whether the producer of child pornography is motivated by a desire to satisfy his prurient interest or for pecuniary gain, the harm to the children he victimizes is the same. Manifestly, that is why the Legislature in Section 13-7-237 deliberately prohibited the noncommercial production of child pornography as well as the commercial production of it."

Dannelley v. State, 397 So.2d 555, 570 (Ala.Cr.App.), cert. denied, 397 So.2d 577 (Ala.), cert. denied, 454 U.S. 856, 102 S.Ct. 305, 70 L.Ed.2d 151 (1981). The Legislature recognized the evil inherent in the production of child pornography and sought to prohibit the production, by any means, of obscene matter displaying or depicting in any way a person under the age of 17 years engaged in or involved in any obscene act. See § 13-7-237, now codified as § 13A-12-197, Ala.Code 1975. The danger to children created by the production and dissemination of child pornography was viewed as a national concern, and the United States Supreme Court's decision in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), gave states "greater leeway in the regulation of pornographic depictions of children." 458 U.S. at 756, 102 S.Ct. at 3354. In 1984, two years after Ferber was decided, the Legislature amended the child pornography act, codified at §§ 13A-12-190 through -197, to "further define and prohibit child pornography and to further provide for the trial of cases involving it." Act No. 84-285, 1984 Ala. Acts; see also Poole v. State, 596 So.2d 632 (Ala.Cr.App. 1992)

. It is evident that the Legislature, recognizing the need to protect innocent children from the dangers of child pornography, enacted broad legislation prohibiting the visual depictions of children involved in any type of sexual act.

In determining whether the child pornography ...