State v. Barr

• Decision Date: 22 November 2019
• Docket Number: No. 2018-0464,2018-0464
• Citation: 172 N.H. 681,233 A.3d 341
• Parties: The STATE of New Hampshire v. Timothy BARR
• Court: New Hampshire Supreme Court

172 N.H. 681

233 A.3d 341

The STATE of New Hampshire

v.Timothy BARR

No. 2018-0464

Supreme Court of New Hampshire.

Argued: October 10, 2019

Opinion Issued: November 22, 2019

Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant attorney general, on the brief, and Susan P. McGinnis, senior assistant attorney general, orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

DONOVAN, J.

The defendant, Timothy Barr, appeals his convictions, following a jury trial in the Superior Court (Ignatius, J.), of two counts of manufacturing, and one count of possessing, child sexual abuse images. See RSA 649-A:3, :3-b (2016). He argues that: (1) RSA chapter 649-A (2016 & Supp. 2018), as applied, violates his right to the freedom of speech guaranteed under the First Amendment to the United States Constitution and Part I, Article 22 of the New Hampshire Constitution because the images underlying his convictions depict legal sexual conduct; and (2) the trial court erred by denying his request to cross-examine the minor depicted in the images about her prior sexual history. We affirm because child pornography depicting an actual child remains a category of speech that is unprotected by the First Amendment, and the trial court's decision to deny the defendant's cross-examination request was not an unsustainable exercise of discretion.

I. Facts

The jury could have found the following facts. The defendant and a 16-year-old minor were engaged in a consensual sexual relationship.¹ The defendant took multiple photographs and one video of the minor performing fellatio on him. The minor also sent the defendant a sexually explicit photograph and video of herself. In July 2017, the minor's parents discovered that she was talking with an older man, found photographs that she was sending the defendant, and called the police.

During their investigation, police found sexually explicit photographs and videos of the minor stored on the defendant's phone and in an online conversation between him and the minor. The police found no evidence that the defendant distributed the photographs or videos to anyone. Based upon this evidence, the State charged the defendant with nine counts of manufacturing, and two counts of possessing, child sexual abuse images.

During opening statements at trial, the State characterized the minor as "unsure of how to act, so [the defendant] made sure to tell her where and how to stand, what to wear, how to [perform fellatio], actions that were unnatural to [the minor] who was nearly half his age." Following opening statements, the defendant requested that the trial court permit him to question the minor regarding her prior sexual history, arguing that the State opened the door to such evidence by commenting that the act of fellatio was "unnatural" to the minor. Specifically, the defendant proffered that, in an interview with the child advocacy center, the minor stated that she had two prior sexual relationships and had previously photographed her sexual activity. The defendant requested permission to cross-examine the minor about these statements. The State countered that it used "unnatural" because, "[i]f this were a natural thing [the minor] would do," the defendant would not have had to instruct her. The defendant responded that the word "unnatural" "carries the intimation that this is the first time she's ever done it."

The trial court acknowledged that "unnatural" "is kind of a loaded word and in retrospect it probably would have been better to say it differently," but concluded that providing the defendant the opportunity to cross-examine the minor about her prior sexual history was a "significant [ ] step" that was unnecessary given the comment. The trial court therefore denied the defendant's request to allow him to cross-examine the minor about her prior sexual history or prior photographic documentation of that sexual history.²

At the close of the State's case, the defendant moved to dismiss the indictment or, in the alternative, for a directed verdict of acquittal, arguing that RSA 649-A:3 and :3-b were unconstitutional as applied to him because they violated his right to the freedom of speech guaranteed under the Federal and State Constitutions. He argued that because the sexual conduct depicted in the photographs and videos was lawful, and because he did not distribute them, they did not constitute child pornography under First Amendment case law and he thus had a right to manufacture and possess them. The trial court denied the defendant's motion, concluding that, because the photographs and videos depict an actual child engaging in sexual conduct, the statute was constitutional as applied.

However, the trial court granted the defendant's request for a jury nullification instruction upon finding that the Child Sexual Abuse Images statute's statement of purpose describing the intent to proscribe the exploitation of "children under the age of 16," RSA 649-A:1, II (2016), is internally inconsistent with the statute's definition of a child as "any person under the age of 18 years," RSA 649-A:2, I (2016).³ Nonetheless, the jury found the defendant guilty of two counts of manufacturing child sexual abuse images, with respect to the video and one photograph of the minor performing fellatio, and one count of possessing child sexual abuse images, with respect to the sexually explicit video of the minor. This appeal followed.

II. Analysis

A. As-Applied First Amendment Challenge

The defendant first argues that, as applied to his conduct, RSA chapter 649-A is unconstitutional under the First Amendment to the United States Constitution and Part I, Article 22 of the New Hampshire Constitution. As an initial matter, the State contends that the defendant's claim under the State Constitution is waived because it is insufficiently briefed. Our policy of deciding issues under the State Constitution before turning to the Federal Constitution is well-established. See State v. Ball, 124 N.H. 226, 232, 471 A.2d 347 (1983). However, off-hand invocations of the State Constitution that are supported by neither argument nor authority warrant no consideration. See Sumner v. N.H. Sec'y of State, 168 N.H. 667, 672, 136 A.3d 101 (2016) (citing Keenan v. Fearon, 130 N.H. 494, 499, 543 A.2d 1379 (1988) ). Aside from one case noting that the State Constitution provides at least as much protection as the Federal Constitution, the defendant cites no authority interpreting, and makes no substantive argument regarding, Part I, Article 22 of the State Constitution in support of his contention that his convictions contravene the preservation of free speech contained therein.⁴ This argument is therefore insufficiently presented for our consideration, and we consider it waived. See Keenan, 130 N.H. at 499, 543 A.2d 1379. We proceed to his First Amendment claim, which we review de novo. State v. Zidel, 156 N.H. 684, 686, 940 A.2d 255 (2008).

RSA 649-A:3-b, I, criminalizes the manufacture of child sexual abuse images and in relevant part states, "No person shall knowingly create, produce, manufacture, or direct a visual representation of a child engaging in or being engaged in sexually explicit conduct, or participate in that portion of such visual representation that consists of a child engaging in or being engaged in sexually explicit conduct." RSA 649-A:3, I(a) criminalizes the possession of child sexual abuse images and in relevant part states, "No person shall knowingly ... [b]uy, procure, possess, or control any visual representation of a child engaging in sexually explicit conduct ...." The statute defines "[c]hild" as "any person under the age of 18 years." RSA 649-A:2, I.

The First Amendment, applicable to the states through the Fourteenth Amendment, "prohibits laws that abridge the freedom of speech." NIFLA v. Becerra, ––– U.S. ––––, 138 S. Ct. 2361, 2371, 201 L.Ed.2d 835 (2018). "As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (brackets and quotation omitted). The protection of speech afforded by the First Amendment extends to "the right to receive information and ideas." Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).

There are, however, certain categories of speech which historically have been unprotected by the First Amendment. Brown v. Entertainment Merchants Assn., 564 U.S. 786, 791, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) (listing obscenity, incitement, and fighting words as examples of such categories). In New York v. Ferber, 458 U.S. 747, 756, 764, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), the United States Supreme Court held that child pornography is such a category of speech, largely unprotected by the First Amendment. See Zidel, 156 N.H. at 687-88, 940 A.2d 255 (explaining how Ferber established this categorical exception); see also Rodney A. Smolla, 2 Smolla and Nimmer on Freedom of Speech § 14:50 (2019) ("The Supreme Court has ... ruled that the use of children as subjects in the depiction of pornography, as well as possession of such pornography, falls outside First Amendment protection."). The defendant's central thesis is that images depicting a lawful sexual relationship with a child are protected by the First Amendment. We disagree.

We canvassed the United States Supreme Court cases developing and refining the definition of material that is considered child pornography and thus unprotected by the First Amendment in Zidel, 156 N.H. at 687-92, 940 A.2d 255, and it is unnecessary to recount that history at length here. The Court in Ferber, 458 U.S. at 757, 765, 102 S.Ct. 3348, held that the "the production and distribution" of child pornography is unprotected by the First Amendment for...