2008-019, STATE OF NH v. PETER CLARK

regularly via internet “chats,” or instant, real time, messaging. These defendant and Detective McLaughlin, as the fictitious child, communicated

Department, whom the defendant believed to be a fourteen-year-old boy. The

communications with Detective James McLaughlin of the Keene Police defendant became the subject of an investigation involving his internet

The following facts are supported by the record. In 2002 and 2003, the

trial in Superior Court (O’Neill, J.) We affirm. possession of child pornography, see RSA 649-A:3 (2007), following a bench GALWAY, J. The defendant, Peter Clark, appeals his convictions for

the defendant. Kissinger, Jr. and Michael J. Murphy on the brief, and Mr. Kissinger orally), for Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (John C.

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

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2008-019 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Carroll Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 reasonable doubt that real children were depicted. We disagree. p. 2 “grids of individually colored pixels,” making it impossible to conclude beyond a by three inches in size,” “somewhat grainy and unclear,” and consisting of

introduced as exhibits at trial, were “strikingly small, approximately two inches

State, could have found guilt beyond a reasonable doubt.”

the images themselves. He further contends that the images in this case, as differentiating between virtual and real images,” necessitating evidence beyond “[g]iven the current state of technology, ordinary people have difficulty in 2256(8)(B) of the Child Pornography Prevention Act of 1996,

evidence and all reasonable inferences from it in the light most favorable to the

knowingly possessed child pornography. We address each argument in turn. be, of a minor engaging in sexually explicit conduct.” Id. at 241 (quotation §§ 2251 et seq., which prohibited any visual depiction that “is, or appears to insufficient to prove that actual children were depicted. He asserts that, see 18 U.S.C. States Supreme Court declared unconstitutional as overbroad section the basis for the underlying indictments. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the United a forensic examination of the computer, which exposed the ten images that are

namely, the testimony of Agent Murphy. however, that the State had provided additional competent expert evidence; the defendant must prove that “no rational trier of fact, viewing all of the

evidence that: (1) the images were of real minor children; and (2) that he

The defendant argues that the images in this case, standing alone, were possession of child pornography. 156 N.H. 803, 804 (2008). forensic specialist for the United States Secret Service, subsequently conducted State v. MacDonald,

testimony beyond the images themselves to meet its burden of proof.” It noted, In order to prevail upon his challenges to the sufficiency of the evidence,

On appeal, the defendant argues that the State presented insufficient

under the age of 16,” and found the defendant guilty of ten counts of subject images in this matter are beyond a reasonable doubt, of real children residence, seizing his computer. Special Agent Andrew Murphy, a computer The trial court concluded that “the

required, as a matter of law, to present any additional evidence or expert images. The defendant objected. The trial court ruled that, “the State is not images depicted real children under the age of sixteen based solely upon those At trial, the State moved to allow the fact finder to determine whether the

Following his arrest, police executed a search warrant at the defendant’s

during his attempt to meet the fictitious child. conversations were of a graphic sexual nature. The defendant was arrested defendant’s possession of more than ten such images.

testimony in addition to the images themselves, in order to prove beyond a

observed that, in

and the government sought a sentence enhancement based upon the

previously “rejected a per se rule that the government must produce expert testimony as to each of the ten images as a matter of law under United States v. Nolan, 818 F.2d 1015 (1st Cir. 1987), it had prove beyond a reasonable doubt real child was depicted). The court first Thus, we look to other jurisdictions for guidance. child, but failed to ask the expert’s opinion as to the remaining images. Pacheco for proposition that government need not provide expert testimony to petition for cert. filed, (U.S. Aug. 11, 2008) (No. 08-58 p. 3 31)(citing Rodriguezour analysis here. Cf. United States v. Wilder, 526 F.3d 1, 11 (1st Cir. 2008) context of a sentence enhancement, the First Circuit’s reasoning is helpful to pled guilty to possession of at least one image constituting child pornography, Although the case was decided under a lesser burden of proof in the that a pornographic image depicted a real child. In that case, the defendant sentence enhancement. the government was not required to present expert testimony in order to prove Id. The First Circuit agreed. image omitted from the expert’s opinion depicted a real child, and imposed the 438. The district court disagreed, and concluded upon its own review that the

The defendant argued that the government was required to present expert

evidence, beyond the images, is necessary to prove the depiction of a real child. government presented expert evidence that nine of the images depicted a real content.” Id. at 4 p. 3 36. The

harm to children resulting from their “use as subjects in sexual performances.”

conduct under RSA 649-A: p. 3 3. 2007), the United States Court of Appeals for the First Circuit determined that of the New Hampshire Constitution and within the confines of prohibited In United States v. Rodriguez-Pacheco, 475 F.3d 434, 438 (1st Cir.

N.H. 125, 1 p. 3 34 (2007), petition for cert. filed, (U.S. Nov. 7, 2007) (No. 07-7577).

(2007). However, we have never had occasion to address whether additional its interest in “stamping it out without regard to any judgment about its Zidel, 156 N.H. at 69 p. 3 3 (quotation omitted) (plurality opinion); RSA 649-A:1

(plurality opinion). This is so because the purpose of RSA 649-A: p. 3 3 is to prevent

depict an actual child in order for its possession to fall outside the protections Consistent with Ashcroft, we have stated that child pornography must

production.” Id. at 250. issue prohibits speech that “records no crime and creates no victims by its

Id. at 249. The Court recognized that the statutory provision at

pornography, that is, the abuse of real children, which provides the State with Id. The Court reasoned, in part, that it is the method of producing the child ‘virtual child pornography,’ which include computer-generated images . . . .” omitted). This “section capture[d] a range of depictions, sometimes called of fact. This does not shift the burden of proof.

p. 4 government ran the risk of not persuading the trier expert to explain why the image was real, the

. . . .”

testimony, and had the government not called an

child. Juries are still capable of distinguishing between real and virtual images

defense of this type and presented such expert

real child, observing: “We conclude that [

evidence of identity, an expert must testify that the unlawful image is of a real

children. If defendant had chosen to mount a

expert testimony is not required for purposes of establishing the depiction of a one could have been made without using real an expert to testify as to how photographs like this

United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir.), cert. denied,

categorical requirement that, in every case on the subject, absent direct

The United States Court of Appeals for the Tenth Circuit also holds that used other than real subjects. He could have called Id. at 444 (quotation, citation, and brackets omitted).

government’s having that burden and

between real and virtual images, without expert assistance.” prove the pornographic image is of a real child.

evidence of his own suggesting that the picture

to exclusive use of virtual pornography.” obligation to do so, was free to have presented

statement that the defendant, while under no

There is nothing inconsistent between the

. . . .

“universally accept the proposition that juries are capable of distinguishing The burden of proof remains on the government to

concluded:

basis to assume that the producers of child pornography have widely converted observation about the market for child pornography is still correct. There is no improvements may eventually be made in technology, the Supreme Court’s Reaffirming its conclusion in Nolan, the First Circuit stated, “Whatever

(quotation omitted).

children,” and recognized that other circuits that have addressed this issue is required to prove that the prohibited images are of real, not virtual, absolute requirement that, absent direct evidence of identity, expert testimony Pacheco, 475 F.3d at 439. It noted that Ashcroft did not “lay down the reasonable doubt that the images depicted are of real children.” Rodriguezcircumstances under which the trial court may find expert testimony helpful.

p. 5 establish that a real child is depicted. That is not to say that there are no

children if fictional, computerized images would suffice.” substitutes. Few pornographers would risk prosecution by abusing real State is not required to present evidence beyond the images themselves to

virtual,” necessitating an expert to prove the depiction of a real child.

illegal images would be driven from the market by the indistinguishable We find the majority view persuasive, and similarly conclude that the

signs of manipulation and computer-generation.” which would “surely not go unnoticed”). showing that a visual observer can reliably evaluate the relevant pictures for child pornography sufficed, there would be a dramatic change in the market, of virtual pornography.”); Phillips, 831 N.E.2d at 586 (if a legal substitute for that the producers of child pornography have widely converted to exclusive use evolved. See Rodriguez-Pacheco, 475 F.3d at 443 (“There is no basis to assume 254. There is no indication that the market for child pornography has thus and that even experts have difficulty determining what is real and what is Ashcroft, 535 U.S. at images themselves. We are of the same view.” (footnote omitted));

observed, “If virtual images were identical to illegal child pornography, the by the dissent in 158. We do not agree with this view. As the United States Supreme Court

real child after concluding “the government ha[d] not made the threshold Frabizio, the court excluded expert testimony on the issue of the depiction of a Rodriguez-Pacheco, 475 F.3d at 460 (Torruella, J., dissenting). Similarly, in

asserted that “virtual and real child pornography images are indistinguishable, real, as opposed to virtual, merely by allowing the fact finder to examine the clarified, 463 F. Supp. 2d 111 (D. Mass. 2006). In his dissent, Judge Torruella dissenting), and United States v. Frabizio, 445 F. Supp. 2d 152 (D. Mass.),

Rodriguez-Pacheco, 475 F.3d at 446 (Torruella, J.,

The defendant argues that we should accept the minority view espoused

evidence is not required to prove a real child is depicted). McIntyre v. State, 897 A.2d 296, 310-11 (Md. Ct. Spec. App. 2006) (expert present any additional evidence to demonstrate images depict real children); dismissed in part, 872 N.E.2d 1213 (Ohio 2007) (state is not required to Huffman, 847 N.E.2d 58, 69 (Ohio Ct. App. 2006), aff’d in part and appeal

address the issue has held that a state may prove that images of children are Alinas, 171 P.3d 1046, 1051 (Utah 2007) (“[E]very federal circuit court to have addressed this issue have ruled in a similar fashion. See, e.g., State v. Phillips, 831 N.E.2d 574, 585 (Ill. 2005). Indeed, the majority of courts that legal computer-generated images for illegal child pornography.” People v. unacceptable risk that the trial judge, unaided by expert testimony, mistook virtual child pornography exists and was so readily available as to create an upon Ashcroft: “[I]n this case we find little or no reason to fear that realistic 540 U.S. 1083 (2003). Likewise, the Supreme Court of Illinois declared, relying were created or last accessed.

p. 6 which prevented Agent Murphy from determining details such as when they

been deleted. Exhibits ten through fourteen were found in unallocated space, date the file was created, when it was last accessed, and that each file had allocated space. For these exhibits, Agent Murphy was able to testify as to the

Exhibits six through nine were temporary internet files and were also located in

space on the defendant’s hard drive, and was not a temporary internet file. According to Agent Murphy, one image, exhibit five, was found in allocated Web page, making a return to that Web page much faster in the future. alleged in the indictment. was deleted, and, thus, there was no evidence that he possessed it on the date

is a file that has been downloaded to the computer upon being viewed on a

temporary internet file nor unallocated space, the defendant contends that it

permanently delete the images and he did not knowingly possess or have those

Temporary Internet Files.” He further explained that a temporary internet file

knowingly possess them. With respect to the one image that was neither in a

through fourteen, “it is reasonable to conclude that [he] had attempted to

pushed off to when it’s deleted or it’s an overflow area for things like the unallocated space is the “residual part of [the] hard drive where data is often unsolicited “pop-ups” that he immediately deleted, and, thus, that he did not would be immediately accessible to the user, such as word documents, while testimony, that it is reasonable to conclude that these images were the result of to nine of the ten images, the defendant contends, based upon Agent Murphy’s

The defendant asserts that, based upon the location of exhibits six fact could find the images depicted real children.

unallocated space. He explained that allocated space contains files which

located in either deleted files or in unallocated hard drive space. With respect

the evidence before the trial court, we cannot conclude that no rational trier of required to do so, the State did present expert testimony in this regard. Given impossible. Furthermore, as the trial court noted in its decision, although not

space on the defendant’s hard drive, while the remainder were found in Agent Murphy testified that exhibits five through nine were found in allocated knowingly possessed the pornographic images because all of the images were testimony. At trial, the images were admitted as exhibits five through fourteen. We begin with a brief review of the evidence and Agent Murphy’s

such inferior quality or insufficient size as to make this determination

The defendant next argues that the State failed to prove that he

contrary to the defendant’s assertion, the exhibits admitted at trial were not of each image depicted a real child without the aid of expert testimony. Indeed, 806 (1996). In this case, the trial court could reasonably have concluded that court’s sound discretion. See Bronson v. The Hitchcock Clinic, 140 N.H. 798, However, the admission or exclusion of expert testimony is within the trial was his possession of additional child pornography, specifically, exhibit five,

p. 7 supporting the defendant’s knowing possession of exhibits six through fourteen

pornography with him when he and the fictitious child met. Further evidence The defendant also indicated he would bring a CD containing child pornography, but that he was afraid to send them for fear of being detected.

communicated with the fictitious child about sending images constituting child

pornography. Specifically, Detective McLaughlin testified that the defendant defendant’s own statements to Detective McLaughlin that he possessed child the claim that the images were a result of unwanted “pop-ups” were the

some control over them,

drawn therefrom.

whether the defendant knowingly possessed the images, in that he exerted

isolation.

beyond a reasonable doubt, that the defendant knowingly possessed the

disagree. facts found as a result of other inferences, provided they can be reasonably under [his] knowing possession or control.” Given the evidence in this case, we images in remote and inaccessible parts of the computer does not render them seeking out or downloading the image. The relevant inquiry thus becomes

examine each evidentiary item in the context of all the evidence, not in

We hold that there was sufficient evidence for the trial court to find, inquiry is a question of fact.

fact may draw reasonable inferences from facts proved and also inferences from support a finding of guilty beyond a reasonable doubt. Id. Further, the trier of maintains: “Simply because a computer forensic expert was able to find these files or unallocated space may not always be the result of the computer user Crie, 154 N.H. at 406. Circumstantial evidence may be sufficient to because, as Agent Murphy testified, the images contained in temporary internet Thus, we turn to the evidence in this case. In reviewing the evidence, we issue). We acknowledge that reliance upon such a record is problematic

questions are left to the fact finder). App. 2005), rev. denied, 136 P.3d 758 (Wash. 2006) (inadvertent viewing

the presence of the images on his computer was merely inadvertent. This

had permanently deleted, and, thus, did not knowingly possess. The defendant been the result of an unsolicited and unwanted “pop-up,” which he believed he internet files or in unallocated space, the presence of each image could have 1046, 1050-51 (Ariz. Ct. App. 2008) (discussing division in authority on this user, constitutes possession of those images. See State v. Jensen, 173 P.3d of images merely viewed on a computer, irrespective of any prompting by the There is a split among courts as to whether the automatic record created

that because exhibits six through fourteen were either deleted temporary images under his control.” Relying upon Agent Murphy’s testimony, he argues date alleged in the indictment.

p. 8 fatal to the State’s case, as long as possession could be found on or about the

of the crime. Therefore, any discrepancy as to the date of possession is not

finding that the defendant knowingly possessed exhibit five. combined with the other evidence presented at trial, supports the trial court’s 2003, prior to the indictment date and within the statute of limitations. This,

fact could find knowing possession beyond a reasonable doubt.

alleged in the indictment. However, under RSA 649-A:3, time is not an element May 5, 2003, and, thus, he did not possess the image on August 9, 2003, as Specifically, the defendant contends that the deleted image was last viewed on

Here, the defendant does not dispute that this image was last viewed on May 5,

computer. Given this evidence, we cannot conclude that no rational trier of

BRODERICK, C.J.