2006-040, STATE OF NH v. NATHAN RAVELL

The defendant, Nathan Ravell, appeals his conviction after

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Peter C.L. Roth, senior assistant to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes No. 2006-040 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Carroll Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as pose, play, dance or other performance, exhibited before an audience or p. 2 State Constitutions. engaging in sexual activity.” “Visual representation” is further defined as “any for the same offense under the Double Jeopardy Clauses of the Federal and

protections, this argument is not developed, and we decline to review it. jeopardy argument under the State Constitution.

RSA 649-A:3, I(e) pertains to “any visual representation of a child County indictments, citing his right to be shielded from multiple punishments (quotation omitted). protections. To the extent that he asserts a violation of the second category of the language of a statute its commonsensical meaning.” Cobb, 143 N.H. at 647 analysis); double jeopardy under the Federal Constitution. He does not advance a double see Sanabria v. United States, 437 U.S. 54, 69-70 (1978). “We give legislature. State v. Cobb, 143 N.H. 638, 647 (1999) (federal double jeopardy protects against multiple punishments for the same offense.” the same offense, we must determine the “unit of prosecution” intended by the To determine whether a defendant is subject to multiple punishments for

multiple punishments for the same offense. or limb.” U.S. CONST. amend. V; the Carroll County indictments, the trial court subjected the defendant to therefore focus our discussion upon whether, by denying his motion to dismiss Matter of Hampers & Hampers, 154 N.H. ___, ___, 911 A.2d 14, 30 (2006). We Cheshire County convictions. The defendant moved to dismiss the Carroll In the were “the same” as those on the CD-ROM that had been the basis for the U.S. 267, 273 (1996). The defendant asserts a violation of the third category of Among those images were five that the Carroll County Superior Court found 127 N.H. 811, 814 (1986) (quotation omitted); Carroll County indictments, arguing that they violate the prohibition against see United States v. Ursery, 518 motion to dismiss. He urges us to vacate his convictions and sentences on the State v. Bailey, against a second prosecution for the same offense after a conviction. Third, it second prosecution for the same offense after an acquittal. Second, it protects It “protects a defendant’s rights in three ways: First, it protects against a

person shall “be subject for the same offense to be twice put in jeopardy of life The Double Jeopardy Clause of the Federal Constitution provides that no

possessing pornographic images of children found on his home computer.

On appeal, the defendant argues that the trial court erred by denying his possession of child pornography. The trial court denied this motion.

Subsequently, the defendant was charged in Carroll County with

defendant was convicted in Cheshire County Superior Court and sentenced for representation of a child engaging in sexual activity.” After pleading guilty, the volitional acts required to obtain and store it.” p. 3 regard for the volume of child pornography . . . [and] the number of separate unreasonable to suggest that the legislature intended a single penalty without

possessed on his CD-ROM and computer hard drive. Given this intent, “it is

state statutes. In

is consistent with this intent to punish the defendant separately for each image proliferation in each and every instance.

expansive meaning,” provisions of this chapter. 3 drive without violating double jeopardy. word “any,” “a term of great breadth” which, “[r]ead naturally . . . has an

photograph, motion picture, videotape or other pictorial reproduction . . . of a criminalized the possession of “any undeveloped film, photographic negative, performances. . . .

Multaler, for instance, the court construed a statute that

Courts in other jurisdictions have similarly interpreted their analogous

part: pornography through the aggressive enforcement of the statute’s provisions. It with its stated intent. The small unit of prosecution was intended to stop (quotation omitted), the legislature gives this statute great reach, consistent

Carroll County for the identical five images he possessed on his computer hard 437, 451 (Wis. 2002) (quotation, brackets and ellipsis omitted). By using the

exploitation of children through their use as subjects in sexual

(1996), the legislature’s statement of intent. RSA 649-A:1 reads in pertinent The purpose of the statute, therefore, is to prevent the proliferation of child

II. . . . [T]he legislature urges law enforcement officers to County for the five images he possessed on the CD-ROM and punished in Consistent with the legislature’s intent, he could be punished in Cheshire Double Jeopardy Clause to punish the defendant for each image he possessed. I. The legislature finds that there has been a proliferation of

We find support for our interpretation of the statute in RSA 649-A:1 the displaying or possessing of

representation or each image. Here, therefore, it did not violate the Federal legislature intended the unit of prosecution to be each separate visual picture film, photograph, or picture.” Id. at 647-48. Put another way, the the unit of prosecution to be each separate book, magazine, pamphlet, motion offense.” Cobb, 143 N.H. at 647 (emphasis added). “The legislature intended

We have already held that this language “shows a legislative intent that

motion picture film, photograph or picture.” RSA 649-A:2, IV (1996). reproduced in or designed to be reproduced in any book, magazine, pamphlet, statute accordingly;

p. 4 representations], to be the unit of prosecution, it could have phrased the legislature had intended possession, regardless of the number of [visual representation is a duplicate copy of another visual representation. “If the

representation constitutes a separate offense, regardless of whether that visual be distinguishable, however this case is not before us. hard drive has backed up those images automatically. Such a result may well

punishments for the same offense.

unambiguously demonstrates that the possession of “any” visual defendant for multiple images contained on a computer hard drive, where the

not violate the Federal Double Jeopardy Clause’s protection against multiple County indictments. Subjecting him to punishment for these indictments did is unclear”; it “is applicable only where statutory ambiguity has been found.” court did not err when it denied the defendant’s motion to dismiss the Carroll criminal statute so as to increase the statutory penalty where Congress’ intent Therefore, for all of the reasons set forth above, we conclude that the trial

for possessing each image. We disagree. The statutory language at issue would dilute this far-reaching proscription. ROM and on his hard drive were identical, he could not be punished separately will lead to absurd results such as permitting multiple punishments of a of child pornography by targeting same visual representation.” He asserts that because the images on the CD- Additionally, the defendant asserts that our interpretation of the statute

is unambiguous, the rule of lenity does not apply. Cobb, 143 N.H. at 647 (quotations omitted). Because we hold that the statute

rule of lenity applies. The rule of lenity “forbids interpretation of a federal The defendant also argues that because the statute is ambiguous, the

in sexual activity. To interpret the statute in the way the defendant suggests

N.H. 451, 455 (1989). The legislature’s intent was to combat the proliferation against double jeopardy is triggered by punishment for “duplicate copies of the representations of a child engaging in sexual activity].’” State v. Stratton, 132

visual representation” to be the unit of prosecution and that the prohibition The defendant contends that the legislature intended each “distinct

could be prosecuted separately” and punished separately. Id. Id. at 451. The court concluded that “each image [the defendant] possessed evinced its intent to prosecute for “each photograph or pictorial reproduction.” (quotation omitted). The court ruled that the legislature’s use of the word “any” child engaged in sexually explicit conduct.” Multaler, 643 N.W.2d at 450 determination, we construe Criminal Code provisions according to the fair

p. 5 defendant can be punished separately under the statute. In making this

five images at issue to constitute different “units of prosecution” for which the question requires a determination as to whether the legislature intended the question presented by this appeal, however, is whether it did. Answering this

lenity to resolve the ambiguity.

to the legislature.” power to define criminal offenses and prescribe punishments . . . belongs solely

picture – whether an identical copy of another picture or not – a crime. The To be sure, the legislature could make the possession of each individual

State v. Bailey, 127 N.H. 811, 814 (1986).

is ambiguous or legislative intent is unclear, courts should apply the rule of States v. Verrecchia, 196 F.3d 294, 297-98 (1st Cir. 1999). Where the statute appropriate unit of prosecution is a matter of statutory interpretation. United Clause on multiple punishment claims derives from the principle that the Sanabria, 437 U.S. at 69-70 (quotations and citations omitted). Identifying the prosecution, that prescription determines the scope of protection afforded . . . .” than the legislature intended.” has defined a statutory offense by its prescription of the allowable unit of (1978); State v. Stratton, 132 N.H. 451, 455 (1989). “[O]nce [the legislature] successive proceedings.” legislature as the punishable act. Sanabria v. United States, 437 U.S. 54, 69 offense, courts must inquire what “unit of prosecution” was intended by the that he is being punished multiple times under the same statute for the same punishment.” Where, as here, a defendant asserts a double jeopardy violation, arguing all additional sanctions that could, in common parlance, be described as

Cir. 2004) (quotation omitted). “The limited effect of the Double Jeopardy respectfully dissent. United States v. Patel, 370 F.3d 108, 114 (1st more than prevent the sentencing court from prescribing greater punishment

punishments for the same offense, and then only when such occurs in omitted). Instead, it “protects only against the imposition of multiple criminal

Hudson v. United States, 522 U.S. 93, 98-99 (1997) (quotations

The Federal Double Jeopardy Clause “does not prohibit the imposition of

apply the rule of lenity, and vacate the defendant’s convictions. Accordingly, I DUGGAN, J., dissenting. I would hold that the statute is ambiguous,

BRODERICK, C.J., joined, dissented. GALWAY and HICKS, JJ., concurred; DUGGAN, J., with whom to do so in clear and plain language.

p. 6 wanted to penalize conduct involving copies of pornographic images, it was able each identical copy contains the same identical pose. Where the legislature identical copies of pictures are not separate visual representations because

holds, each individual picture. It could, however, be read to mean that

intent that all of the contraband be viewed in the

disk. performance” is ambiguous. On one hand, it could mean, as the majority RSA 649-A:2, IV (1996). The phrase “any pose, play, dance or other any book, magazine, pamphlet, motion picture film, photograph or picture.” “any” is used, the courts have discerned a legislative

universally held position. For example, one court held:

unit of prosecution to be one charge for each disk, not for each image on a

exhibited before an audience or reproduced in or designed to be reproduced in basis for a separate unit of prosecution; if the word However, it is not clear from the opinion in legislative intent that each item of contraband be the

If the word “a” is used, the courts have discerned a

Furthermore, the majority’s interpretation of the word “any” is not a

Id. at 448.

argued, in regard to his multiplicity claim, that the legislature intended the be each separate visual representation or image,” identical copies of the same photograph. Rather, in Multaler the defendant there was being punished, as in Cobb, for different photographs or, as here, for representation is defined as “any pose, play, dance or other performance, Multaler whether the defendant support for the position that a unit of prosecution is each separate image. statute, the “unit of prosecution” is any “visual representation.” A visual representation of a child engaging in sexual activity.” Thus, pursuant to the The majority also cites State v. Multaler, 643 N.W.2d 437 (Wis. 2002), as

punished. at issue is identical to another for which the defendant already had been different.” Cobb, 143 N.H. at 647. Here, by contrast, each of the photographs because in that case, the court specifically noted that “[e]ach photograph is

support for the position that “the legislature intended the unit of prosecution to While the majority cites State v. Cobb, 143 N.H. 638, 647-48 (1999), as

Here, it did not.

649-A:3, I(e) (Supp. 2006) provides, “A person is guilty of a felony if such The plain language of the statute does not provide a clear answer. RSA

Porelle, 149 N.H. 420, 424 (2003). import of their terms and to promote justice. RSA 625:3 (1996); State v. the provisions of this chapter.

p. 7 turn to the rule of lenity.

performances. aggressively seek out and prosecute those who violate children from exploitation through sexual

this issue. Thus, since the phrase “visual depiction” is ambiguous, we must

and the legislature urges law enforcement officers to public policy of the state demands the protection of

example, four. Nor, upon review, does the legislative history shed any light on copies of an image to be a more serious offense than the possession of, for whether the legislature viewed the possession of, for example, five identical

whether the visual representations are legally obscene; network based upon the exploitation of children. The 16 engaged in sexual activity illegal irrespective of of visual representations of children under the age of

interest in protecting children from exploitation, neither sheds any light upon seizing everything from which aid can be derived, [the court] can make no more “The rule of lenity is not to be applied lightly: it applies only if, after

those who seek to profit through a commercial children is a sacred trust and should not be abused by York v. Ferber, this chapter makes the dissemination use as subjects in sexual performances. The care of

Although both of these paragraphs emphasize the indisputably important

the United States Supreme Court’s decision in New proliferation of exploitation of children through their manner specified in paragraph I. In accordance with prosecution of those who exploit children in the II. It is the purpose of this chapter to facilitate the

statute. It provides: (1996) sets forth the legislature’s statement of its purposes in enacting the what “unit of prosecution” the legislature intended to punish. RSA 649-A:1

Declaration of Findings and Purposes.

Nor does the statutory scheme, when viewed in its entirety, make clear

State v. Farnham, 752 So. 2d 12, 14 (Fla. Dist. Ct. App. 2000).

intended. episodic sense with only a single unit of prosecution pornography through computerized means,

p. 8 a separate mechanism for punishing individuals who reproduce child

separately from possession.

been punished.

convictions. The legislature has created other means to punish this conduct.

such conduct should be punished. Likewise, since our legislature has created

those copies to other individuals, our statute punishes sales and distribution

possession of identical copies of an image for which a defendant already has Accordingly, lenity requires that a “unit of prosecution” does not include lenity applies and we should resolve the statute in the defendant’s favor. possesses three or four identical images receives only three or four such punished with five separate felony convictions, while another defendant who sense for a defendant who possesses five identical copies of an image to be who sell or distribute child pornography, it is through that mechanism that

possesses multiple copies of an image will sell or distribute at least some of

copies of an image does not appeal to a sense of fairness. It would make little ambiguity or uncertainty in the statute. Since our legislature has created a separate mechanism to punish individuals

For example, although it is a very real concern that a defendant who

in a defendant being subjected to significantly higher punishment depending defendant[ ] in th[is] case[ ].”). Furthermore, because this ambiguity can result of lenity would compel us to construe the statute in favor of . . . [the] criminal Using a possession offense to punish a defendant for possessing identical Rather, the rule only applies if there is a grievous rule, for most statutes are ambiguous to some degree.

however, is not sufficient to warrant application of that IV

above, neither the plain language of the statute, nor its legislative history

(1984) (“If the legislative history fails to clarify the statutory language, our rule

Here, the statute contains textual ambiguity and, for the reasons stated

16, 2007). citations omitted); see also State v. Parker, 154 N.H. ___, ___ (decided March United States v. Councilman, 418 F.3d 67, 83 (1st Cir. 2005) (quotations and

statute is resolved in the defendant’s favor. The Under the rule of lenity, grievous ambiguity in a penal

468 F.3d 75, 80 (1st Cir. 2006) (quotation omitted). than a guess as to what [the legislature] intended.” United States v. Rolfsema, distribution of controlled substances. p. 9 criminalizing possession of, possession with intent to distribute, and

and double jeopardy issues in drug cases prosecuted under statutes bringing a state constitutional claim in a future case.

firearms by a convicted felon because “proof of the elements of the crimes

approach is consistent with how courts have analyzed “unit of prosecution” Constitution. Nothing in today’s opinion prevents another defendant from A:3, I(a) or for reproducing images contrary to RSA 649-B:3, I(b). This example, a prosecution for selling or delivering pornography under RSA 649-

BRODERICK, C.J., joins in the dissent.

respectfully dissent. Sanchez, 152 N.H. 625, 630 (2005). Accordingly, for the foregoing reasons, I charged [would] in actuality require a difference in evidence”); see also State v.

454 (upholding prosecution on six indictments for possession of six different

Finally, the majority’s holding is decided solely under the Federal images, the quantity of images can be used as evidence in connection with, for

sell controlled substances). where it simply does not fit. N.E.2d 1036, 1041-43 (Mass. 2000) (involving charges for sale of and intent to

To the extent a defendant has a large quantity of identical pornographic

conduct at issue here, while grave, seems to have been cabined into a crime that mechanism that such conduct could also potentially be punished. The