State v. Cobb
| Decision Date | 24 June 1999 |
| Docket Number | No. 96–446.,96–446. |
| Citation | 143 N.H. 638,732 A.2d 425 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. David COBB. |
Philip T. McLaughlin, attorney general (Cynthia L. White, senior assistant attorney general, on the brief and orally), for the State.
Law Offices of Cathy J. Green, of Manchester (Cathy J. Green and Philip H. Utter on the brief, and Ms. Green orally), for the defendant.
The defendant, David Cobb, appeals his conviction for one charge of attempted felonious sexual assault, RSA 632–A:3, III (1996) and RSA 629:1 (1996), fifty-three charges of exhibiting or displaying child pornography, RSA 649–A:3, I(c) (1996 & Supp.1998), and 267 charges of possessing child pornography, RSA 649–A:3, III(a) (1996), alleging numerous errors by the Trial Court (Nadeau , C.J.). Specifically, the following issues are presented for our review: (1) whether the photographs which form the basis for the defendant's pornography convictions are child pornography as defined by statute; (2) whether the State failed to prove the age of the child in each photograph; (3) whether the pornography indictments are multiplicitous; (4) whether the court's denial of discovery relating to a victim's identification of photographs violated the defendant's rights to present favorable proofs, to exculpatory evidence, and to confront his accusers; (5) whether the out-of-court identification of the defendant by a victim should have been suppressed as a fruit of an illegal arrest; (6) whether the search warrant for the defendant's knapsack was issued without probable cause for the crime of attempted kidnapping; (7) whether the warrantless search of the defendant's automobile was an unreasonable search and seizure; (8) whether the introduction of uncharged misconduct evidence at trial was error; (9) whether consolidation of the child pornography charges with the attempted felonious sexual assault charge deprived the defendant of his rights to fair trial, to testify in his own defense, and to due process of law; (10) whether the evidence was sufficient to sustain his conviction for attempted felonious sexual assault; (11) whether the defense should have been provided access to the general instructions to the grand jury; and (12) whether the court's consideration of unproven misconduct evidence at sentencing was error. We affirm.
On August 17, 1995, the defendant met thirteen-year-old Bobby K. at the Rochester pool. The defendant was carrying a black knapsack with a brown paper bag inside it. The bag contained a stack of photographs. The defendant showed Bobby many of the photos in the stack. The photos depicted both naked adults and naked children.
On August 21, 1995, the defendant approached twelve-year-old Jeffrey W. in downtown Farmington and asked if he knew anyone who would want to earn $20 by helping to change two retarded children out of their wet bathing suits. The defendant was wearing a t-shirt that read "Camp KYO For Retarded Children" and a camp hat, and he was carrying a black knapsack. When Jeffrey said he was willing to do it, the defendant told him the retarded children were inside a cabin located next to Fernald Park. The defendant began walking with the boy toward the park.
Farmington Police had received a report the previous day that a man had approached two children at a Farmington store, identified himself as a counselor from Camp KYO, and offered the children money to assist him in changing some retarded children that had been swimming at a nearby lake. Because the defendant matched the description of that man, including wearing the same t-shirt and hat, three Farmington Police Officers stopped him while he was walking through town with Jeffrey. The defendant identified himself as a counselor from Camp KYO For Retarded Children, which he claimed was located on Route 153 in Middleton or South Wolfeboro. He admitted that he had solicited Jeffrey to help him in changing some retarded children who had been swimming nearby. He claimed that the underwear he was carrying in his knapsack, which he showed to police, belonged to the children, who were waiting in a parked van. When police checked the area he described, they found no such van and no retarded children.
The defendant told police he could show them "Camp KYO." He took them on an hour-long ride in the police cruiser, through four different towns, to search for the camp which he later admitted did not exist. The defendant then said he used the "Camp KYO" t-shirt and the underwear in his knapsack as props to gain credibility with the children he approached. He believed that the t-shirt and the offer of money would overcome the children's reluctance to talk to strangers.
When he approached Jeffrey, the defendant was carrying a number of items in his knapsack including children's and adult's underwear, a bikini swimsuit, a sweatshirt bearing the name "Camp KYO For Retarded Children," a Polaroid Instamatic camera, a package of Polaroid film, a bottle of skin care lotion, a pumpkin mask, and a piece of paper entitled "Pay Scale For Helping Pumpkin." The "Pay Scale" listed various sexual acts and prices that would be paid for the performance of them, including $20 for "[a]llowing Pumpkin to Lotion you" with "underwear off." A former student of the defendant's, who was familiar with his handwriting, recognized the handwriting on the "Pay Scale" as the defendant's. The defendant also had in his knapsack 515 photographs, a number of which depicted children and adults engaged in various sexual activities. The defendant said he had an interest in child pornography since the 1970's and created his own after the federal government banned it.
The defendant's first argument on appeal is that the photographs which form the basis for the child pornography convictions do not violate New Hampshire law. The defendant contends that the photographs are not child pornography because: (1) they are collages that contain components made by juxtaposing adult nude bodies with cut-outs from children's catalogs; (2) no actual children were used or exploited in their creation; and (3) the photographs are not "visual representations" as defined by RSA 649–A:2, IV (1996). The defendant also argues that the State failed to prove that the children who were the subjects of the photographs were actually engaged in either the touching of sexual organs in the context of a sexual relationship, or the actual lewd exhibition of the genitals.
The items at issue are Polaroid photographs. The photographs generally fall into the following categories: adult nude bodies juxtaposed with fully clothed children; composite images containing the sexually immature bodies or body parts of children either depicted by themselves, with or without a face, or juxtaposed with the faces of adults or other children, some altered by the addition of hand-drawn pubic hair; and nude bodies that have been altered by the addition of children's heads.
The current child pornography statute was amended in 1983, following 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). Prior to 1983, New Hampshire's statute was limited to materials that could be proven obscene. In Ferber, the issue before the Supreme Court was whether "the New York State Legislature [could], consistent with the First Amendment, prohibit the dissemination of material which shows children engaged in sexual conduct, regardless of whether such material is obscene." Ferber , 458 U.S. at 753, 102 S.Ct. 3348. The Court explained that because of the state's "compelling interest in prosecuting those who promote the sexual exploitation of children," id . at 761, 102 S.Ct. 3348, a law regulating child pornography need not adhere mechanically to the three-part test for obscenity originally enunciated in Miller v. California , 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The Court concluded that "the States are entitled to greater leeway in the regulation of pornographic depictions of children." Id . at 756, 93 S.Ct. 2607. As the purpose section to the New Hampshire statute acknowledges, the statute was amended "[i]n accordance with the United States Supreme Court's decision in New York v. Ferber," to make "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." RSA 649–A:1, II (1996).
When construing the meaning of a statute, we first examine the language found in the statute "and where possible, we ascribe the plain and ordinary meanings to words used." Great Lakes Aircraft Co. v. City of Claremont , 135 N.H. 270, 277, 608 A.2d 840, 845 (1992) (quotation omitted). "[C]ourts can neither ignore the plain language of the legislation nor add words which the lawmakers did not see fit to include." Brown v. Brown , 133 N.H. 442, 445, 577 A.2d 1227, 1229 (1990). "[T]he legislative intent is to be found not in what the legislature might have said, but rather in the meaning of what it did say." Corson v. Brown Prods.,...
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State v. Cobb, 96-446.
...143 N.H. 638732 A.2d 425THE STATE OF NEW DAVID COBB No. 96-446. Supreme Court of New Hampshire. June 24, 1999. 143 N.H. 640 Philip T. McLaughlin, attorney general (Cynthia L. White, senior assistant attorney general, on the brief and orally), for the State. Law Offices of Cathy J. Green, of......