2009-234, State of New Hampshire v. Bryan T. Farr

Michael A. Delaney

No. 2009-234

Cheshire

convictions, following a bench trial in Superior Court (Arnold BRODERICK, C.J. The defendant, Bryan T. Farr, appeals his

alleged that the defendant knowingly “possessed and/or had under his control ___________________________ delivering child pornography. The indictment for possessing child pornography The defendant was indicted on one count of possessing and one count of

Stephanie Hausman

in sexual activity, see RSA 649-A:3, I(e) (2007) (amended 2008). We remand. count of possessing or controlling any visual representation of a child engaging sexual activity, see RSA 649-A:3, I(a) (2007) (amended 2008), and one felony count of delivering or providing any visual representation of a child engaging in

brief and orally, for the defendant.

assistant attorney general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. 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 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 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as necessarily include [the] [d]etective[’s] . . . saved portion of the video clip.” By p. 2 webcam to [the] [d]etective . . . on July 13, 2005. Such evidence would be required to present evidence of the defendant sending the picture via his and occurred on different dates: “For the delivery indictment, the State would defendant for both offenses because the two charges required different evidence The trial court ruled that it did not violate double jeopardy to punish the

the video clip contained on his compact disc. possessing child pornography was based upon the defendant’s possession of his webcam and the Internet. The trial court found that the indictment for was based upon the defendant’s delivery to the detective of the video clip via The trial court found that the indictment for delivering child pornography

defendant had previously transmitted to the detective. entitled “2 cute little boys having fun.” This was the same video clip that the discovered numerous pornographic images and videos, including the video clip containing a compact disc labeled “Porn.” Upon review of the disc, the police the defendant’s Swanzey residence and, among other items, seized a computer The next day, the Keene Police Department executed a search warrant at

playing in real time on his computer. detective testified that it was not possible to save the entire video clip as it was State and Federal Constitutions. See screen, and then saved the picture to a Microsoft Word document. The punishments for the same offense under the Double Jeopardy Clauses of the clicked the “Print Screen” button, which captured a picture of the image on his that to prosecute him for both violated his right to be shielded from multiple Before trial, the defendant moved to dismiss these charges on the ground

screen. When the image appeared on the detective’s computer screen, he Internet, and the video clip was then displayed on the detective’s computer having fun.” The defendant transmitted the video clip to the detective via the with another child.” it was playing on his computer. The video clip was entitled “2 cute little boys During the conversation, the defendant used his webcam to film a video clip as little boys having fun), of a child engaged in the sexual act of masturbation The defendant was in his home in Swanzey, while the detective was in Keene. representation, in the form of a computer image/picture (file name: 2 cute conversation with Detective James McLaughlin of the Keene Police Department. it heard evidence that on July 13, 2006, the defendant had an online amends. V, XIV. The State objected, and the trial court held a hearing at which

over the Internet via real-time chat (video conferencing), a visual pornography alleged that the defendant knowingly “delivered and/or provided, masturbation with another male.” The indictment for delivering child cute little boys having fun), of a child engaged in the sexual act of a visual representation, in the form of a computer image/picture (file name: 2 of an element that the other does not.” State v. McGurk p. 3 considered the same for double jeopardy purposes unless each requires proof Under the New Hampshire Constitution, “[t]wo offenses will be

conviction; and (3) it protects against multiple punishments for the same review and compare the statutory elements of the charged offenses in light of (2) it protects against a second prosecution for the same offense after evidence. State v. Ford (1) it protects against a second prosecution for the same offense after acquittal;, 144 N.H. 57, 65 (1999). “In making this inquiry, we elements of the crimes as charged will in actuality require a difference in crime or offense.” This provision protects a defendant’s right in three ways: (2008) (quotation and brackets omitted). We focus upon whether proof of the that “[n]o subject shall be liable to be tried, after an acquittal, for the same Part I, Article 16 of the State Constitution provides, in pertinent part,, 157 N.H. 765, 773

younger than sixteen years of age. See (2007). The defendant asserts a violation of the third category of protections. issue for trial was whether the males depicted in the video clip actually were representation were younger than sixteen years of age. Accordingly, the only constitutional law, which we review de Petition of State of N.H. (State v. Johanson), 156 N.H. 148, 156 defendant also stipulated that he believed that the males depicted in the visual denying his motion to dismiss. This argument presents a question of he delivered and/or provided this same representation over the Internet. The On appeal, the defendant first argues that the trial court erred by a male engaged in the sexual act of masturbation with another male and that stipulated that he possessed or had under his control a visual representation of For the purposes of the bench trial and this appeal, the defendant

jurisdictions for guidance only, id. at 233. State v. Ball, 124 N.H. 226, 231 (1983), citing opinions from federal and state (2009). We first address the defendant’s claim under the State Constitution,

under the age of sixteen, and, thus, that the State had met its burden of proof. review of the video, however, the court found that it depicted at least one child testimony was inadmissible and declined to consider it. Relying upon its own as well as the testimony of an expert. The trial court ruled that the expert’s To meet its burden of proof on this issue, the State offered a copy of the video

dismiss, and the case proceeded to a bench trial. Federal Constitutions. The court, therefore, denied the defendant’s motion to offenses did not violate his rights against double jeopardy under the State and indictment” and vice versa, punishing the defendant for committing both supporting the possession indictment would not sustain the delivery discovered on July 14, 2005.” The trial court ruled that because “the facts be required to introduce the compact disc containing the video clip, which was contrast, the trial court noted, “[f]or the possession indictment, the State would delivery charge. See p. 4 or controlled it, the possession charge is a lesser included offense of the that he delivered the video clip necessarily constitutes proof that he possessed possessing or controlling it. In other words, if, as the defendant argues, proof

the defendant contends, delivering pornography necessarily encompasses charge is a lesser included offense of the delivering pornography charge if, as stipulated, among other things, that he delivered and/or provided the very Internet via real time chat (video conferencing). The possessing pornography “controlled.” Moreover, for purposes of both trial and appeal, the defendant issue and the other required proof that he delivered or provided it over the charged with “delivering” the same video clip that he “possessed” and/or that the defendant possessed or controlled the specific visual representation at a lesser included offense of the delivery charge. Here, the defendant was The only difference between the two charges is that one required proof We agree with the defendant that the possession charge in this case was

derive from the same criminal act. See State v. Constant, 135 N.H. 254, 256-57 (1992). is a lesser included offense of the delivery offense as charged and both offenses same for double jeopardy purposes because the possession offense as charged

any visual representation of a child engaging in sexual activity. See State had to prove, beyond a reasonable doubt, that he delivered or provided To convict the defendant of the delivering child pornography charge, the computer image/picture, of a child engaging in sexual activity. (video conferencing); (4) a specific visual representation, in the form of a (1) knowingly; (2) delivering or providing; (3) over the Internet via real time chat The defendant argues that the possession and delivery charges are the little boys having fun).” The elements of this offense as charged were thus: representation was “in the form of a computer image/picture (file name: 2 cute “over the Internet via real-time chat (video conferencing)” and that the visual the defendant knowingly delivered and/or provided the visual representation A:3, I(a). As charged in the indictment, the State specifically had to prove that

a computer image/picture, of a child engaging in sexual activity. (2) possessing or controlling; (3) a specific visual representation, in the form of fun).” Thus, the elements of the offense as charged were: (1) knowingly; the form of a computer image/picture (file name: 2 cute little boys having knowingly possessed and/or had under his control “a visual representation, in I(e). As charged in the indictment, the State had to prove specifically that he visual representation of a child engaging in sexual activity. See RSA 649-A:3, beyond a reasonable doubt, that he possessed or had under his control any defendant of the possessing child pornography charge, the State had to prove, (2001); see also Brown v. Ohio, 432 U.S. 161, 168 (1977). To convict the

726, 730 (1998) (quotation omitted). the actual allegations contained in the indictments.” State v. Liakos, 142 N.H. contraband on different dates.” Fulcher v. Com. p. 5 conduct, precluding convictions of multiple offenses for possession of the same over a period of time is but one offense constituting a continuing course of jurisdictions have held that uninterrupted possession of the same contraband Although this is an issue of first impression in New Hampshire, “other

possession and delivery offenses derive from the same criminal act. the next day were not separate volitional acts. Therefore, he reasons, the 5 possession on the day he delivered the video clip and his continued possession He further asserts that possession is a continuing offense in that his original single criminal act, delivering a video clip that he possessed and controlled. 2004). United States v. Jones, 533 F.2d 1387 (6th Cir. 1976), cert. denied, 431 The defendant argues that, in this case, he is charged with committing a, 149 S.W.3d 363, 376 (Ky.

pornography under RSA 649-A:3, I(e) is always

greater offense only if both derive from the same criminal act. Ford violates double jeopardy to punish a defendant for both a lesser included and This does not conclude our double jeopardy analysis, however, for it

constitute an offense.” Id. at 66. A criminal act “consists of the sum of discrete actions that together We need not decide whether possession and/or control of child , 144 N.H.

stipulated evidence. See Constant, 135 N.H. at 256-57. issue in light of the manner in which the State charged the offenses and the possession charge at issue is a lesser included offense of the delivery charge at (theft is a lesser included offense of robbery). Rather, we hold only that the delivering child pornography under RSA 649-A:3, I(a). Cf. Ford, 144 N.H. at 66

denied, 8 p. 6 61 N.E.2d 658 (Ill. 2006). prosecuting defendant for both acts does not violate double jeopardy), appeal drive for more than month are separate and distinct acts of possession; thus, (transferring image via e-mail attachment and retaining copy of image on hard possessing it); cf. People v. Flaar, 852 N.E.2d 338, 341-42 (Ill. App. Ct. 2006) presented, it was impossible to disseminate child pornography without first pornography is lesser included offense of disseminating it because under facts Kamaka, 277 S.W.3d 807, 815 (Mo. Ct. App. 2009) (possessing child minor was lesser included offense of disseminating same work); State v. N.W.2d 660, 664-66 (Minn. 2006) (possession of pornographic work involving the lesser offense.”), cert. denied, 490 U.S. 1049 (1989); State v. Bertsch, 707 inasmuch as it is impossible to commit the greater offense without committing drug is an inherently included lesser offense of dealing a narcotic drug, See Mason v. State, 532 N.E.2d 1169, 1172 (Ind.) (“Possession of a narcotic established that he possessed or had under his control the same video clip. that the defendant delivered or provided the video clip necessarily also Thus, in this case, according to the indictments and stipulated evidence, proof same visual representation that he possessed and/or had under his control. 6

differentiated by time, location, or intended purpose.” Rashad v. Burt cf violate the Double Jeopardy Clause if the possessions are sufficiently. Bertsch, 707 N.W.2d at p. 6 664 (inquiry into whether two offenses are separate intended for future sales; possessions differentiated by location and purpose); separate convictions for possession of the same controlled substance will not actively sold to buyers, and possessing cocaine in his motel room, which he When a controlled substance is involved, courts “have determined that violation to punish defendant for possessing cocaine in his home, which he Com. v. Rabb, 725 N.E.2d 1036, 1043-44 (Mass. 2000) (no double jeopardy sale and another supply for personal use), cert. denied, 506 U.S. 1070 (1993); punishments warranted for defendant’s possession of one narcotic supply for United States v. Johnson, 977 F.2d 1360, 1374 (10th Cir. 1992) (separate Johnson v. Morgenthau limited by United States v. Forman, 180 F.3d 766, 769-70 (6th Cir. 1999); see aluminum foil “boat” before and after arrest constitute separate offenses); F.3d 677, 681 (6th Cir. 1997), cert. denied, 522 U.S. 1075 (1998), holding

Substantive Criminal Law § p. 6 6.1(e) at 430 n.46 (2d ed. 2003). 1998) (possession of marijuana is continuing offense); 1 W. LaFave, prosecution for criminal possession); State v. Zele, 716 A.2d 833, 837 (Vt. possession of weapon over six days is continuous offense supporting one

a single item constitutes one continuous offense. See legal process; because appellant’s arrest was legal process, possession of Several jurisdictions have similarly held that uninterrupted possession of conduct may be carved into separate offenses only if it has been interrupted by Fulcher, 149 S.W.3d at 377 (under Kentucky statute, continuing course of punishments violated double jeopardy), cert. denied, 479 U.S. 938 (198 p. 6 6); department of defense patch was one continuous offense; thus, multiple 781 F.2d 1247, 1254 (7th Cir. 1985) (five-day period of unlawfully possessing possession of firearm constitutes single offense); United States v. Kimberlin, States v. Horodner, 993 F.2d 191, 193 (9th Cir. 1993) (uninterrupted possession into separate offenses.”), cert. denied, 517 U.S. 1250 (1996); United same weapon is interrupted, the Government may not arbitrarily carve 77 F.3d 1348, 1351 (11th Cir.) (“Where there is no proof that possession of the

imprisoned for the rest of his life. Id. “with possession on more than 1100 separate days” and could have been reasoned that were the rule otherwise, the defendant could have been charged continued possessory interest in a firearm.” Id. at 1391. The Sixth Circuit punish as one offense all of the acts of dominion which demonstrate a conduct, not an act,” and that “by prohibiting possession Congress intended to 533 F.2d at 1389-92. The Sixth Circuit held that “[p]ossession is a course of one date in 1970 and for possessing the same firearm three years later. Jones, double jeopardy for the defendant to be punished for possessing a firearm on the United States Court of Appeals for the Sixth Circuit ruled that it violated U.S. 9 p. 6 64 (1977), is “[t]he most often cited case on [this] issue.” Id. In Jones, defendant delivered and/or provided the video clip to the detective constituted p. 7 Accordingly, because we conclude that, in this case, proof that the

the defendant’s home. indictments as charged and the stipulated evidence, the compact disc was in that the compact disc changed locations; at all times relevant to the day when the disc was found in his computer. Further, there is no evidence disc on the day he delivered the video clip to the detective and on the following defendant had a different intent with regard to his possession of the compact

the stipulated evidence, the same compact disc forms the basis of both the the compact disc the next day. According to the indictments as charged and to when he transmitted the video clip to the detective and when the police seized differentiate the defendant’s possession of the video clip on his compact disc and, thus, his possession was a continuing offense. There is nothing to Here, the defendant’s possession of the video clip was uninterrupted,

dividing a single crime into a series of temporal or spatial units,” Brown guarantee that prosecutors can avoid its limitations by the simple expedient of Keeping in mind that “[t]he Double Jeopardy Clause is not such a fragile

corroborative of unitary conduct.” Id. possessions were separate, “but, in the absence of other factors, is strongly representation is not necessarily fatal to the determination that the separate intent or purpose with regard to his possessions of the single visual conduct.” Id. Likewise, lack of evidence indicating that the defendant had a concurring). Close proximity in space and time “is indicative of unitary See State v. Quick, 206 P.3d 985, 992 (N.M. 2009) (Maes, J., specially space or time or that they were intended for different purposes or transactions. possessions only if the evidence indicates that the possessions are separated in pornography, here the video clip of the two males, may be considered separate this appeal and hold that possessing a single visual representation of child U.S. at 169, we, nonetheless, adopt the Rashad We applied a similar formulation in Ford formulation for the purposes of , 432

N.H. at 67. involved different property and were separated in time and space. Ford, 144 clerk and theft from the store constituted two distinct acts because each offenses occurred during a single event, we concluded that the robbery of the jewelry from the store derived from the same criminal act. Although the determining whether the defendant’s robbery of a store clerk and theft of

one determinative factor.” Rabb, 725 N.E.2d at 1043. single criminal objective). These factors are “meant to be disjunctive, with no time, place and whether segment of conduct was motivated by effort to obtain single behavioral incident under Minnesota statute; factors to examine include criminal acts is analogous to inquiry into whether multiple offenses constitute p. 8 Remanded

DALIANIS, DUGGAN, HICKS and CONBOY, JJ., concurred.

age of sixteen. We remand for further proceedings consistent with this opinion. child under the age of sixteen. See support the trial court’s finding that the video clip depicted a child under the have found beyond a reasonable doubt that the video clip depicted an actual and possessing the video clip at issue but that the evidence was sufficient to reasonable inferences from it in the light most favorable to the State, could Constitution for the defendant to have received punishments for both delivering must prove that no rational trier of fact, viewing all of the evidence and all In sum, we hold that it violated the Double Jeopardy Clause of the State To prevail upon his sufficiency of the evidence argument, the defendant

evidence was sufficient to support the trial court’s finding on this issue. clip depicted a child younger than sixteen. Accordingly, we hold that the favorable to the State, could have found beyond a reasonable doubt that the all of the evidence and all reasonable inferences from it in the light most Having viewed the video clip, we conclude that a rational trier of fact, viewing

actual person younger than sixteen years of age. See had to prove, beyond a reasonable doubt, that the images at issue depicted an sixteen. To convict the defendant of the child pornography charges, the State the trial court’s finding that the video clip depicted a child under the age of The defendant next asserts that the evidence was insufficient to support rather than virtual child). evidence beyond images themselves to prove that pornography depicts real themselves. See Clark, 158 N.H. at 18 (holding that State need not produce younger than sixteen years of age, the State had only to produce the images without deciding, that to prove that the images depicted an actual person 158 N.H. at 15. Because the defendant does not argue otherwise, we assume,

See State v. Pepin, 155 N.H. 364, 368 (2007). we need not decide whether his federal constitutional rights were also violated. Having concluded that the defendant’s state constitutional rights were violated, to multiple punishments for delivering and possessing the same video clip. offense, it violated the State Double Jeopardy Clause to subject the defendant that, in this case, the defendant’s possession of the video clip was a continuing proof that he possessed and/or controlled it, and because we also conclude