State v. Ravell
| Decision Date | 19 April 2007 |
| Docket Number | No. 2006–040.,2006–040. |
| Citation | 922 A.2d 685,155 N.H. 280 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Nathan RAVELL. |
Kelly A. Ayotte, attorney general (Peter C.L. Roth, senior assistant attorney general, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, Nathan Ravell, appeals his conviction after a bench trial in Superior Court (O'Neill, J.) on nine counts of possession of child pornography in violation of RSA 649–A:3 (Supp.2006). We affirm.
The following appears in the record: The defendant was arrested when he was preparing to meet with someone whom he believed was a fourteen-year-old boy, but who was, in fact, an undercover police officer. At the time of his arrest, the defendant possessed a CD–ROM containing pornographic images of children in violation of RSA 649–A:3, I(e), which makes it a felony for a person to knowingly "buy [ ], procure[ ], possess[ ], or control[ ] any visual representation of a child engaging in sexual activity." After pleading guilty, the defendant was convicted in Cheshire County Superior Court and sentenced for possession of child pornography.
Subsequently, the defendant was charged in Carroll County with possessing pornographic images of children found on his home computer. Among those images were five that the Carroll County Superior Court found were "the same" as those on the CD–ROM that had been the basis for the Cheshire County convictions. The defendant moved to dismiss the Carroll County indictments, citing his right to be shielded from multiple punishments for the same offense under the Double Jeopardy Clauses of the Federal and State Constitutions. See U.S. CONST. amend. V ; N.H. CONST. pt. I, art. 16. The trial court denied this motion.
On appeal, the defendant argues that the trial court erred by denying his motion to dismiss. He urges us to vacate his convictions and sentences on the Carroll County indictments, arguing that they violate the prohibition against double jeopardy under the Federal Constitution. He does not advance a double jeopardy argument under the State Constitution.
The Double Jeopardy Clause of the Federal Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V ; see Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). It State v. Bailey, 127 N.H. 811, 814, 508 A.2d 1066 (1986) (quotation omitted); see United States v. Ursery, 518 U.S. 267, 273, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). The defendant asserts a violation of the third category of protections. To the extent that he asserts a violation of the second category of protections, this argument is not developed, and we decline to review it. In the Matter of Hampers & Hampers, 154 N.H. 275, 291–92, 911 A.2d 14, 30 (2006). We therefore focus our discussion upon whether, by denying his motion to dismiss the Carroll County indictments, the trial court subjected the defendant to multiple punishments for the same offense.
To determine whether a defendant is subject to multiple punishments for the same offense, we must determine the "unit of prosecution" intended by the legislature. State v. Cobb, 143 N.H. 638, 647, 732 A.2d 425 (1999) (); see Sanabria v. United States, 437 U.S. 54, 69–70, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). "We give the language of a statute its commonsensical meaning." Cobb, 143 N.H. at 647, 732 A.2d 425 (quotation omitted).
RSA 649–A:3, I(e) pertains to "any visual representation of a child engaging in sexual activity." "Visual representation" is further defined as "any pose, play, dance or other performance, exhibited before an audience or reproduced in or designed to be reproduced in any book, magazine, pamphlet, motion picture film, photograph or picture." RSA 649–A:2, IV (1996).
We have already held that this language "shows a legislative intent that the displaying or possessing of each photograph constitutes a separate offense." Cobb, 143 N.H. at 647, 732 A.2d 425 (emphasis added). "The legislature intended the unit of prosecution to be each separate book, magazine, pamphlet, motion picture film, photograph, or picture." Id. at 647–48, 732 A.2d 425. Put another way, the legislature intended the unit of prosecution to be each separate visual representation or each image. Here, therefore, it did not violate the Federal Double Jeopardy Clause to punish the defendant for each image he possessed. Consistent with the legislature's intent, he could be punished in Cheshire County for the five images he possessed on the CD–ROM and punished in Carroll County for the identical five images he possessed on his computer hard drive without violating double jeopardy.
We find support for our interpretation of the statute in RSA 649–A:1 (1996), the legislature's statement of intent. RSA 649–A:1 reads in pertinent part:
The purpose of the statute, therefore, is to prevent the proliferation of child pornography through the aggressive enforcement of the statute's provisions. It is consistent with this intent to punish the defendant separately for each image possessed on his CD–ROM and computer hard drive. Given this intent, "it is unreasonable to suggest that the legislature intended a single penalty without regard for the volume of child pornography ... [and] the number of separate volitional acts required to obtain and store it." State v. Multaler, 252 Wis.2d 54, 643 N.W.2d 437, 451 (2002) (). By using the word "any," "a term of great breadth" which, "[r]ead naturally ... has an expansive meaning," United States v. Ickes, 393 F.3d 501, 504 (4th Cir.2005) (quotation omitted), the legislature gives this statute great reach, consistent with its stated intent. The small unit of prosecution was intended to stop proliferation in each and every instance.
Courts in other jurisdictions have similarly interpreted their analogous state statutes. In Multaler, for instance, the court construed a statute that criminalized the possession of "any undeveloped film, photographic negative, photograph, motion picture, videotape or other pictorial reproduction ... of a child engaged in sexually explicit conduct." Multaler, 643 N.W.2d at 450 (quotation omitted). The court ruled that the legislature's use of the word "any" evinced its intent to prosecute for "each photograph or pictorial reproduction." Id. at 451. The court concluded that "each image [the defendant] possessed could be prosecuted separately" and punished separately. Id.
The defendant contends that the legislature intended each "distinct visual representation" to be the unit of prosecution and that the prohibition against double jeopardy is triggered by punishment for "duplicate copies of the same visual representation." He asserts that because the images on the CD–ROM and on his hard drive were identical, he could not be punished separately for possessing each image. We disagree. The statutory language at issue unambiguously demonstrates that the possession of "any" visual representation constitutes a separate offense, regardless of whether that visual representation is a duplicate copy of another visual representation. "If the legislature had intended possession, regardless of the number of [visual representations], to be the unit of prosecution, it could have phrased the statute accordingly; e.g., ‘it is unlawful to possess one or more [visual representations of a child engaging in sexual activity].’ " State v. Stratton, 132 N.H. 451, 455, 567 A.2d 986 (1989). The legislature's intent was to combat the proliferation of child pornography by targeting any visual representation of a child engaged in sexual activity. To interpret the statute in the way the defendant suggests would dilute this far-reaching proscription.
The defendant also argues that because the statute is ambiguous, the rule of lenity applies. The rule of lenity "forbids interpretation of a federal criminal statute so as to increase the statutory penalty where Congress' intent is unclear"; it "is applicable only where statutory ambiguity has been found." Cobb, 143 N.H. at 647, 732 A.2d 425 (quotations omitted). Because we hold that the statute is unambiguous, the rule of lenity does not apply.
Additionally, the defendant asserts that our interpretation of the statute will lead to absurd results such as permitting multiple punishments of a defendant for multiple images contained on a computer hard drive, where the hard drive has backed up those images automatically. Such a result may well be distinguishable, however this case is not before us.
Therefore, for all of the reasons set forth above, we conclude that the trial court did not err when it denied the defendant's motion to dismiss the Carroll County indictments. Subjecting him to punishment for these indictments did not violate the Federal Double Jeopardy Clause's protection against multiple punishments for the same offense.
Affirmed.
I would hold that the statute is ambiguous, apply the rule of lenity, and vacate the defendant's convictions. Accordingly, I respectfully...
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