State v. Howell

• Decision Date: 15 March 2005
• Docket Number: No. COA 03-1491.,COA 03-1491.
• Citation: 609 S.E.2d 417,169 NC App. 58
• Parties: STATE of North Carolina v. Roger Dale HOWELL, Defendant.
• Court: North Carolina Court of Appeals

609 S.E.2d 417

169 NC App. 58

STATE of North Carolina v. Roger Dale HOWELL, Defendant.

No. COA 03-1491.

Court of Appeals of North Carolina.

March 15, 2005.

Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

Leslie C. Rawls, Charlotte, for defendant-appellant. HUDSON, Judge.

On 7 August 2000, Defendant Roger Dale Howell was indicted by a Gaston County Grand Jury on multiple counts of second-degree sexual exploitation of a minor. On 25 November 2002, a jury convicted defendant of 43 counts of third-degree sexual exploitation of a minor. Upon his convictions, Judge Patti sentenced defendant to six consecutive terms of imprisonment of six to eight years. These sentences were suspended and defendant was placed on supervised probation for 60 months. Defendant appeals his convictions and sentence, and for the reasons set forth below, we find no error.

BACKGROUND

The evidence tends to show that in February or March 2000, defendant began communicating over the Internet with Jamie Renee Hammonds via instant messages. Although both lived in Gastonia, North Carolina, defendant and Ms. Hammonds were not acquainted. Ms. Hammonds testified that on 24 May 2000, she began posing online as "Sissy," Ms. Hammonds' fifteen-year-old babysitter. Initially, she posed as the babysitter to get defendant to leave her alone, but after conversing with defendant as "Sissy," Ms. Hammonds became suspicious of defendant's interest in the purported fifteen-year-old. Hammonds sent defendant a picture of her actual babysitter and testified that defendant later asked "Sissy" to make a "very sexy picture that on a scale of 1 to 10 would be a 10." Hammonds testified that the two discussed meeting somewhere and that defendant again asked "Sissy" to send a "sexy" picture of herself. Hammonds continued communicating with defendant and contacted law enforcement authorities including Crimestoppers, the Missing and Exploited Children's hotline, and Detective Hawkins of the Gastonia Police Department.

After further online conversations between Hammonds and defendant, Detective Hawkins went to Hammonds' house and viewed transcripts of her conversations with defendant, as well as photographs defendant had sent her. The police then set up an undercover meeting between "Sissy" and defendant. A female officer went to Hammonds' house, where posing as "Sissy," she chatted with defendant online, spoke with him on the telephone, and set up a meeting. Defendant met the undercover officer at a local park, believing she was "Sissy," and asked her about the pictures she was supposed to bring to him. Officers arrested him in the park.

Police officers executed a search warrant at defendant's home and seized a computer, which was turned over to SBI Agent Mike Smith, an expert in computers and computer evidence of crimes against children. On the hard drive of the seized computer, Agent Smith found over 200 pictures depicting minors engaged in sexual acts. These images were received in five zip files, and then stored on the computer's hard drive in five separate directories.

ANALYSIS

I.

Defendant argues that the trial court erred when it denied his motion to dismiss some or all of the charges on grounds of double jeopardy and when it denied his motion to arrest judgment on all but one count. In these assignments of error, defendant contends that the charges against him were multiplicitous. Defendant asserts that the possession of photos on a single hard drive constitutes only one offense or, in the alternative, no more than five separate counts, one for each downloaded zip file. We disagree.

Defendant argues that the applicable statutory definitions do not support the multiple charges against him. Defendant was convicted of violating N.C.G.S. § 14-190.17A(a) (2000), which provides in pertinent part:

A person commits the offense of third degree sexual exploitation of a minor if, knowing the character or content of the material, he possesses material that contains a visual representation of a minor engaging in sexual activity.

Id. N.C.G.S. § 14-190.13 (2000) defines "material" as: "Pictures, drawings, video recordings, films or other visual depictions or representations but not material consisting entirely of written words." Id. Defendant suggests that because the definition of "material" specifies items in the plural, the photographs found on his computer constitute only a single charge.

In support of this argument, defendant cites a Delaware case where the court held that multiple charges against a defendant who possessed multiple child pornography photographs were not multiplicitous because the applicable statute referred to a singular "visual depiction." Fink v. State, 817 A.2d 781 (Del.2003). Although not controlling, we read Fink as undermining rather than supporting defendant's argument. Defendant focuses solely on the plural form in the definition of material, in N.C.G.S. § 14-190.13, while ignoring the plain language of the statute under which he was convicted, N.C.G.S. § 14-190.17A(a). The latter section makes possession of material containing "a visual representation," a violation of the law. N.C.G.S. § 14-190.17A(a)(emphasis added). Fink supports conviction on multiple counts where the statute proscribes possession of a singular visual depiction or representation, as it does here. Furthermore, we conclude that the listing of plural items in the definition of "material" is merely a matter of style.

Although North Carolina Courts have not previously addressed multiplicitous charges under these statutes, many jurisdictions have done so in similar cases. The Supreme Courts of Utah and South Dakota have held that their respective statutes, which, like North Carolina's, define "material" in the plural, support multiple convictions for possession of child pornography downloaded to a defendant's computer. State v. Morrison, 31 P.3d 547 (Utah 2001); State v. Martin, 674 N.W.2d 291 (S.D.2003). In addressing the issue of multiplicity, many courts have focused on whether the relevant statutes refer to "a" or "any" visual representation. While some jurisdictions conclude that the use of "any" is ambiguous and cannot support multiple charges for possession of multiple photographs on a computer hard drive or floppy disk, most construe "any" to support multiple convictions for possession of multiple images. See, e.g., U.S. v. Kimbrough, 69 F.3d 723 (5th Cir.1995); State v. Parrella, 736 So.2d 94 (Fla.App.1999); American Film Distributors, Inc. v. State, 471 N.E.2d 3 (Ind.App.1984) (all holding that "any" is ambiguous). But see, Martin, 674 N.W.2d 291; State v. Mather, 264 Neb. 182, 646 N.W.2d 605, 616 (2002); Morrison, 31 P.3d 547; State v. Multaler, 252 Wis.2d 54, 643 N.W.2d 437 (2002); U.S. v. Esch, 832 F.2d 531 (10th Cir.1987) (all holding that "any" supports multiple convictions). We have found no jurisdictions, however, which have held the use of the singular "a", as appears in our statute, to be ambiguous. Indeed, an Alabama court stated:

How, then, should the unit of prosecution be described so that an intent to allow multiple convictions is clear and unequivocal? Instead of using the word "any" to describe the unit of prosecution, the singular word [] "a" ... should be used.

McKinney v. State, 511 So.2d 220, 224 (Ala.1987). Similarly, we conclude that the plain language of N.C.G.S. § 14-190.17A(a) supports multiple convictions here.

Defendant also cites North Carolina cases in support of his argument. See State v. Smith, 323 N.C. 439, 373 S.E.2d 435 (1988); State v. Petty, 132 N.C.App. 453, 512 S.E.2d 428 (1999). Neither of these cases, however, involves violations of the child pornography statutes. Id. In Petty, the Court addressed whether a first-degree sexual offense is a single wrong for jury unanimity purposes and thus is inapposite. 132 N.C.App. at 460-61, 512 S.E.2d at 433. In its short discussion of multiplicity, the Petty Court noted that to avoid multiplicity in an indictment, "a criminal pleading must contain ... [a] separate count addressed to each offense charged." Id. at 463, 512 S.E.2d at 435 (internal citations omitted). Defendant makes no argument regarding the number of indictments.

In Smith, the Court held that a single sale of multiple pornographic magazines could not yield multiple convictions. 323 N.C. at 444, 373 S.E.2d at 438. However, Smith is also easily distinguished from this case, as it involved the defendant's conviction under N.C.G.S. § 14-190.1(a), for intentionally disseminating obscenity. Id. The statute involved here, N.C.G.S. § 14-190.17A(a), differs from the one in Smith in two important ways. First, although enacted at the same time and under the same bill as N.C.G.S. § 14-190.17A(a), the statute in Smith makes it illegal to sell "any obscene writing, picture or other representation or embodiment of the obscene." N.C.G.S. § 14-190.1(a)(1) (emphasis added). The Court reasoned that this language, using "any" rather than "a," failed to indicate a "clear expression of legislative intent to punish separately and cumulatively for each and every obscene item." Smith at 437, 373 S.E.2d at 441-42. By contrast, in N.C.G.S. § 14-190.17A(a), the legislature chose to use the term "a" visual depiction, thus indicating a different intent.

Both N.C.G.S. §§ 14-190.1(a) and 14-190.17A(a) were enacted under a bill entitled, "An act to strengthen the obscenity laws of this State and the enforcement of these laws ... and to stop the sexual exploitation ... of minors" (emphasis added). See Cinema I Video, Inc. v. Thornburg, 83 N.C.App. 544, 549, 351 S.E.2d 305, 309 (1986), aff'd 320 N.C. 485, 358 S.E.2d 383 (1987). But, in the two statutes, the legislature addressed two distinct societal problems. Obscenity laws, such as N.C.G.S. § 14-190.1(a), address the public or community morality and serve to "protect[] ... society as a willing or unwilling audience from the corrupting effects of...