2017-0280, The State of New Hampshire v. Robert Norman

reasonable doubt, that the images associated with the seven in dictments depict images. He also argues that the evidence was insufficient to prove, beyond a probable cause that his electronic devices would contain child sexual abuse submitted in support of the search warrant application failed to establish by denying his motion to suppress in which he argued that the affidavit RSA 649 - A:3, I(a) (2016). On appeal, he argues that the superior court erred following a bench trial on stipulated facts in Superior Court (Brown, J.). See convictions on seven counts of possession of child sexual abuse images HANTZ MARCONI, J. The defendant, Robert Norman, appeals his

brief and orally, for the defendant. Thomas Barnard, senior assistant appellate defender, of Concord, on the

on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Katherine A. Triffon, attorney,

No. 2017 - 0280 Hillsborough - n orthern j udicial d istrict

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, Concor d, 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 p. 2 22 as 2

television shows . . . so that the downloads would not be traced back to him.” Nashua L ibrary to access the Torrent website to download movies and up his c omputer,” and that he “used the public access wifi service at the also stated that he used the external hard drive found in his vehicle “to back images.” He denied that his cell phone contained pornography. The defendant contained pornography” and “estimated that there were approximately 500 computer. He told the police that “there were some folders o n his laptop which the defendant was questioned further about the images observed on his and an external hard drive that they found in the vehicle. At the police station, lewdness. See RSA 645:1 ( p. 2 2016). The police seized his cell phone, his laptop, The defendant was subsequently arrested for indecent exposure and

to have images of younger females if they were wearing pantyhose or tights.” mem bers on his computer. The defendant also “admitted that he was inclined not have any nieces or nephews and that there were no photographs of family outfits.” When questioned about the images, the defendant stated that he did children were in sundresses,” and “[t]he teenage females were in cheerleader the officers estimated were “between the ages of 6 and 15.” “The younger of the positions.” Interspersed among those images were images of children whom folders . . . which contained images of women in various stages of undress and his laptop, cell phone, and vehicle. On the laptop, t he police found “numerous After some discussion with the defendant, he consented to a search of

position. laptop computer displaying a partially nude adult female in a provocative and that his genitals were exposed. They f urther observed a cell phone, a nd a defendant sat up. They noticed that his pants were pulled down to his ankles Upon reaching the vehicle, the officers knocked on the window, and the

approached the vehicle. of his pick - up truck. Concerned that he migh t have overdosed, they identified as the defendant, who appeared to be passed out in the driver’s seat the Wal - Mart parking lot in Amherst. The officers observed a man, later Hillsborough County Street Crimes Task Force were conducting surveillance in the search warrant application. In February p. 2 2016, mem bers of the The following facts are drawn from the affidavit submitted in support of

A. Affidavit

I. Motion to Suppress

and remand. with them do not depict a child. See RSA 649 - A: p. 2 2, I (2016), : p. 3 3, I (a). We reverse challenges three of the indictmen ts on the ground that the images associated sexually explicit conduct. See RSA 649 - A:2, III (2016), :3, I (a). He further 3

from . . . fantasies they may have [when] viewing children engaged in sexual individuals: (1) “may receive sexual gratification, stimulation, and satisfaction individuals who . . . possess . . . child pornography.” He averred that such has] had discussions, [he] know[s] there are certa in characteristics common to training, and the experience of other law enforcement officers with whom [he investigative experience related to child pornography investigations, [his] and experience of the officer - a ffiant. He averred that, “[b]ased on [his] previous the search warrant application contained information based on the training In addition to the information recounted above, the affidavit supporting

for evidence of the crime of possession of child sexual abuse images. warrant to search the defendant’s laptop, external hard drive, and cell p hone were banking records on his computer.” The police thereafter applied for a request by the police to provide the password to his laptop, stating that “there Near the end of the February 2016 interview, the defendant refused a

evidence that he had been found in possession of child pornography. been fully forthcoming in his d escription of his Salem arrest, it provided no his laptop. Although this information established that the defendant had not in a parked vehicle in a similar state of undress, viewing adult pornography on and lewdness as well as disorderly conduct in August 2014, after he was found repo rted that the defendant had actually been arrested for indecent exposure the middle finger. The interviewing detectives contacted the Salem police who was arrested by the Salem police for disorderly conduct after giving someone similar situation” that had occurred in Salem. The defendant claimed that he During the interview, the police questioned the d efendant about “a

himself.” “admitted that his laptop was open with one of his images to ‘stimulate’ preparing to change his underwear when his girlfriend called,” but later truck. He initially told the police that “his pants were down as a result of The defendant was also questioned about his conduct in the pick - up

prelude to sexually explicit images of children.” “[t]hes e types of images are referred to as child erotica, which is typically a officers observed mixed within the adult pornography observed,” and that for the search warrant averred that “[t]his description matches that of what to be a tease, not nude, but suggestive.” The officer - affiant who later applied “added that he likes ‘cheesecake pictures,’” which are “imag es that are meant his knowledge, none of the images were “of someone who is pre - teen.” He fetishes[:] pantyhose, legs, and/or feet.” The defendant told the police that, to defendant] stated that the images so metimes appear when he searches for his “When asked specifically about the images of the children, [the

pornograph y”; instead, he “uses Google and Yahoo!” to search for pornography. The defendant told the police that he does not use “the Torrent network for p. 4 4

without the observance of contraband at the place to be searched, to meet 213, 238 (1983). Although an affidavit may establish probable cause to search in a particular place.” Id. (q uotation omitted); see Illinois v. Gates, p. 4 462 U.S. there is a fair probability that contraband or evidence of a crime will be found decision whether[,] given all the circumstances set forth in the affidavit. . ., The task of the issuing magistrate “is to make a practical, common - sense

and will aid in a particular apprehension or conviction.” Id. would justifiably believe that what is sought will be found through the search 207 (2012). Probable cause to search exists “if a person of ordinary caution be issued only upon a finding of probable cause. State v. Ball, 16 p. 4 4 N.H. 204, Part I, Article 19 of the State Constitution requires that search warrants

to aid our analysis. State v. Ball, 12 p. 4 4 N.H. 226, 231 - 33 (1983). defendant’s claim un der the State Constitution and rely upon federal law only CONST. pt. I, art. 19; U.S. CONST. amends. IV, XIV. We first address the probable cause, in violation of the State and Federal Constitutions. See N.H. The defendant argues that the search warrant was not supported by

B. Analysis

would be found on [the] defendant’s computer and hard drive.” the affidavit established “a fair probability that evidence of child pornography probable cause. The superior court denied the motion, after determining that that the affidavit supporting the search warra nt application failed to establish devices. Before trial, the defendant moved to suppress the images, arguing was based upon a separate di gital image found on the defendant’s electronic basis for the charges of possession of child sexual abuse images. Each charge laptop and external hard drive revealed the images that later served as the based upon the submitted affidavit. A forensic examination of the defendant’s The Circuit Court (Ryan, J.) granted the search warrant application

to be without their child pornography for a prolonged time period.” based locations involved with child pornography”; and (7) “typically prefer not (6) “generally have knowledge about how to access hidden and secretive cloud meet others to share information and materials” related to child pornography; private environment, such as a computer”; ( p. 5 5) “may correspond with and/or pornography images in a digital or electronic format in a safe, secure and . . . child erotica, and videotapes for many years”; ( p. 4 4) “often maintain their child and security of their home” and “typically retain pictures, films, photographs, maintain their ‘hard copies’ of child pornographic material . . . in the privacy their o wn sexual arousal and gratification”; (3) “almost always possess and sexually explicit or suggestive materials” and “often use these materials for visual media, or from literature describing such activity”; (2) “may collect activity or in sexually suggestive poses, . . . in person, in photographs, or other 5

sundresses and teenagers in cheerleader outfits, or images of “younger inclination to view pornographic images of adult women, i mages of girls in Cir. 201 p. 5 5). On appeal, the State does not contend otherwise. The defendant’s abuse images. See United States v. Edwards, 813 F.3d 953, 963, 965 (10th not allege that any of the images the police viewed constituted child sexual in sundresse s, and female teenagers in cheerleader outfits. The affidavit did laptop were of adult women “i n various stages of undress and positions,” girls devices. In this case, the images that the officers viewed on the defendant’s that child sexual abuse images would be found on the defendant’s electronic did not have a substantial basis for finding that there was a fair probability totality of the circumstances set forth therein, we conclude that the magistrate Viewing the affidavit in a common - sense mann er and considering the

649 - A:2, III. or opposite sex”; and “any lewd exhibitions” of the buttocks or genitals. RSA perverted” sexual intercourse, “whether alone or between memb ers of the same “in the context of a sexual relationship”; actual or simulated “normal or includes: masturbation; touching one’s own “sexual organs” or those of another younger than 18 years of age. RSA 649 - A:2, I. “Sexually explicit conduct” engaged in “sexually explicit conduct.” RSA 649 - A:3, I(a). A “child” is a person abuse images. A child sexual abuse image is an image that depicts a child defendant’s laptop, cell phone, or external hard drive contained child sexual with a substantial basis for finding that there was a fair probability that the The issue in this case is whether the affidavit provided the magistrate

regarding the sufficiency of the affidavit de novo. See id. N.H. at 207 (quotation omitted). We review the superior court’s decision “reflected an improper analysis of the totality of the circumstances.” Ball, 164 warrant is invalid because the magistrate’s probable cause determination 236. Nevertheless, under th is standard, we may properly conclude that a accorded to warrants.” Id. at 208 (quotation omitted); see Gates, 462 U.S. at hypertechnical sense,” and we resolve “close cases by the preference to be Id. We “will not invalidate warrants by reading the supporting affidavit in a Like the magistrate, we review the affidavit in a common - sense manner.

Ball, 164 N.H. at 207. information set forth in the affidavit supporting the warrant application. See brought to the magistrate’s attention, which in this case is restricted to the 164 N.H. at 207. In so doing, we may consider only the information that was Gates, 462 U.S. at 238 - 39 (quotation, ellipsis, and brackets omitted); see Ball, magistrate had a substantial basis for concluding that probable cause existed.” determination. Id. at 208. Our task on appeal is “to ensure that the We afford much deference to the magistrate’s probable cause

objects and the place to be searched. Ball, 1 p. 6 64 N.H. at 207. constitutional muster, it must evince a sufficien t nexus between the illicit 6

phone. See id. at 9 p. 6 64 - 69. would be found on the defendant’s laptop, external hard drive, and/or cell abuse images sufficient to establish a fair pr obability that such illegal images pornography and so - called “child erotica” and the possession of child sexual conclude that it fail ed to provide a link between the viewing of legal adult insight provided by the officer - affiant’s law enforcement experience, we (quotations omitted). However, even when we view the affidavit through the lens of those versed in the field of law enforcement,” Edwards, 813 F.3d at 965 necessary to support a finding of probable cause when examined through the “innocent or legal conduct may be infused with the degree of su spicion particular types of non criminal acts,” Gates, 462 U.S. at 243 n.13, and that conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that atta ches to We acknowledge that “the relevan t inquiry is not whether particular

inclined to engage in criminal conduct.” Id. danger of assuming that legal conduct standing alone suggests the actor is also 9 p. 6 64 (citations omitted). “Nevertheless, we find its reasoning instructive on the required for proof beyond a reasonable doubt at trial.” Edwards, 813 F.3d at entrapment but also because . . . [it] concerns the quantum of evidence “Admittedly, Jacobson is dis tinguishable not only because of its focus on

the law even wh en they disapprove of it.” Id. at 551. what is now illegal, for there is a common understandin g that most people obey what once was lawful is not, by itself, sufficient to show predisposition to do the Government’s coaxing.” Id. at 55 1 n.3. “Evidence of predisposition to do he would have been predisposed to commit the crime charged independent of inclinations is not sufficient evidence to prove beyond a reasonable doubt that engaged in legal conduct and possessed certain generalized personal entrapment defense. Id. at 554. As the Cou rt explained, “proof that petitioner pornography “independent of the Government’s acts,” as required to defeat his magazines could not establish his predisposition to receive or possess child lawful. Jacobson, 5 03 U.S. at 551. The Court ruled that his receipt of the “sexually explicit depictions of children” because, at the time, that conduct was petitioner was “acting within the law” when he received magazines containing an entrapment defense case, the United States Supreme Court found that the particular legal activity.” Edwards, 813 F.3d at 9 p. 6 64. In Jacobson, for example, inclined to engage in certain illegal activity based on having engaged in a “In other contexts, courts are reluctant to presume that persons are

503 U.S. 540, 551 (19 92). electronic devices would contain such images. See Jacobson v. United States, would commit the crime of possessing child sexual abuse images and that his females” in pantyhose or tights is insufficient to support the inference that he p. 7 7

those characteristics. See Edwards, 813 F.3d at 969. abuse images do not establish a fair probability that the defendant share d assertions about the common characteristics of those who possess child sexual States v. Falso, 544 F.3d 110, 122 (2d Cir. 2008). In short, t he officer - affiant’s [the defendant’s] computer might contain images of child pornography.” United simply is nothing in this statement indicating t hat it is more (or less) likely that “often maintain their child pornography images” in a computer suffic e. “There affidavit’s general statement that individuals who possess child pornography collected such materials or that he used them to seduce children. Nor does the they are attempting to seduce,” yet there were no allegations that t he defendant and gratification” or use such “materials to lower the inhibitions of children explicit or sug gestive materials” featuring children for “their own sexual arousal averred that individuals who possess child pornography may collect “sexually children or that he fantasized about children. Similarly, the officer - affiant poses.” Y et, there were no allegations that the defendant had any contact with [when] viewing children engaged in sexual activity or in sexually sugges tive gratification “from contact with children” or “from fantasies they may have of individuals who possess child pornography is that they receive sexual For example, the officer - affiant aver red that one common characteristic

basis for believing that the defendant actually exhibited those characteristics. However, the affidavit fail ed to allege any facts that would provide a substantial pornography” and that th e defendant “likely displays” those characteristics. characteristics common to individuals who. . . possess. . . images of child 1990). The office r - affiant averred that he knew that “there are certain defendant in mind.” United States v. Weber, 923 F.2d 1338, 1345 (9th Cir. allegations were “not drafted with the facts of this case or this parti cular characteristics of individuals who possess child pornography. However, those In addition, the affidavit included allegations about the common

basis on which t o assess the accuracy of that assertion. children “typically” also possess child pornography, the affidavit provided no meant, however, was that people who possess only non - pornographic images of police were hoping to learn by obtaining the warrant. If what the officer - affiant that the defendant possessed child porno graphy — instead, that was what t h e “typically” be true. However, the problem here is that there was no evidence possessing the child pornography, we have no reason to question that this may child pornography have been shown to have possess ed “child erotica” before erotica, for many years. If the officer - affiant meant that people who possess have sexual images of children typically retain those images, including c hild foundation for t his statement. Rather the affidavit posited that individuals who explicit images of children.” However, t he affi ant did not provide any the affiant ’s aver ment that “child erotica . . . is typically a prelude to sexually possession of “child erotica” with the possessio n of child sexual abuse images: The affidavit contained only one allegation purporting to link the p. 8 8

We note that “child erotica” is a legally inexact term. 1

objectively review the record to determine whether a rational trier of fact could When considering a challenge to the sufficiency of the evidence, we

years”). of age. See RSA 64 9 - A:2, I (defining “[c]hild” as “any person under the age of 1 p. 8 8 images associated with them do not depict a n individual younger than 18 years I(a). He further challenges three of the indictments on the ground that the the seven indictments depict “sexually explicit conduct.” See RSA 649 - A:2, III, :3, insufficient to prove, beyond a reasonable doubt, that the images associated with conduct.” RSA 649 - A:3, I(a). The defendant argues that the evidence was possess . . . any visual representation of a child engaging in sexually explicit RSA 649 - A:3 states, in relevant part, that “[n]o person shall knowi ngly ...

the evidence”). consider this evidence in assessing the defendant’s challenge to the su fficiency of evidence seized during the search . . . should not have been admitted at trial, we see State v. Morrill, 169 N.H. 709, 71 p. 8 8 (2017) (explaining that “although the consider all of the evidence, including that which was erroneously admitted. Id.; (2011) (quotation omitted). When analyzing the sufficiency of the evidence, we Constitut ions would preclude a new trial.” State v. Gordon, 161 N.H. 410, 418 “the Double Jeopardy Clauses of both the New Hampshire and United States whether it intends to retry him, and because, if the evidence was insufficient, the evidence was insufficient to convict him because the State has not indicated should have been suppressed at trial, we address the defendant’s argument that Although we conclude that the evidence obtained from the search warrant

II. Sufficiency of the Evidence

N.H. at 237. we need not reach his argument under the Federal Constitution. Se e Ball, 124 contrary. Because the defendant has prevailed under the State Constitution, pornograph y). Accordingly, we reverse the superior court’s conclusion to the molestation were insufficient to support probable cause to search for child pornographic images” and two 20 - year - old convictions for incest and child Cir. 2017) (holding that the defendant’s “legal possession of two non abuse ima ges. See United States v. Perkins, p. 8 850 F.3d 110 p. 9 9, 1120, 1122 (9th for the magistrate to find probable cause that it also contained child sexual pornographic images of “younger females” did not provide a substantial basis defendant’s laptop contained pornographic images of adult women and non not aver that they constitute child sexual abuse images. The fact that the although the officer - affiant describes those images as “child erotica,” he does 1 were of girls in sundresses and female teenagers in cheerleader outfits, and, women, not of children. The other images the officers viewed on his laptop In this case, the defendant was viewing pornographic images of adult 9

RSA 64 p. 9 9 - A: 3, I(a). “Sexually explicit conduct” is statutorily defined as: associated with the seven indictments depict “sexually explicit conduct.” See rational trier of fact to have found, beyond a reasonable doubt, that the images The defendant also contends that the evidence was insufficient for a

B. Sexually Explicit Condu ct

18 years of age. found, beyond a reasonable doubt, that th ese image s depict girl s younger than conclude that the evidence was sufficient for a rational trier of fact to have Viewing th ese image s in the light most favorable to the State, we

indicators that she has started puberty. indictment appears to be a young child. She is small in stature. There are no Indictment 124014 p. 9 9C: The girl in the image associated with this

devel opment suggest s that she has not completed pubert y. this indictment appears to be that of a younger teenager. Her lack of body Indictment 1240148C: The face of the girl in the image associated with

puberty. Her face is that of a young child. indictment is v ery small in stature and appears to have no indicators of Indictment 1240145C: The girl in the image associated with this

the subject is under the age of 18.” Id. (quotation omitted). everyday experiences, a trier of fact can determine from a photograph whether and brackets omitted). “In determining child pornography, based upon its observations and common experiences.” Houghton, 168 N.H. at 272 (quotation the subjects in a photograph is for the trier of fact, relying on everyday years of age. “We have previously observed that the determination of the age of 1240145C, 1240148C, and 124014 p. 9 9C depict an individual younger than 18 beyond a reasonable doubt, that the images associated with indictments The defendant co ntends that the evidence was insufficient to prove,

A. Age

omitted). and examine each evidentiary item in context, not in isolation.” Id. (quotation however, we still consider the evidence in the light most favorable to the State Lopez, 162 N.H. 15 3, 155 (2011) (quotation omitted). “Under this standard, circumstantial, it must exclude all rational conclusions except guilt.” State v. the age of the individuals depicted. See id. “When the evidence is solely W e will assume, without deciding, that the images are circumstantial evidence of light most favorable to the State. State v. Houghton, 168 N.H. 26 p. 9 9, 271 (2015). considering all of the evidence and all reasonable inferences therefrom in the have found the essential element s of the crime beyond a reasonable doubt, p. 10 10

her genitals. a naked, prepubescent girl lying on her side displaying her buttocks as well as Indictment 1240143C: The image associated with this indictment depicts

Her pose is unnatural; one of the cheeks of her buttocks is exposed. a naked, prepubescent girl with strappy high heels and flowers in her hair. Indictment 1240142C: The image associated with this indictment depicts

that a visual depiction is a lewd exhibition. Id. Id. (quotation omitted). Not all of these factors must be present to conclude

sexual response in the viewer. 6) whether the visual depiction is intended or designed to elicit a

willingness to engage in sexual activity; [and] 5) whether the visual depiction suggests sexual coyness or a

4) whether the child is fully or partially clothed, or nude;

inappropriate attire, considering the age of the child; 3) whether the child is depicted in an unnatural pose, or in

i.e., in a place or pose generally associated with sexual activity; 2) whether the setting of the visual depiction is sexually suggestive,

genitalia or pubic area; 1) whether the focal point of the visual depiction is on the child’s

constitutes “a lewd exhibition of the geni tals”: following factors as “instructive” in determining whether a visual depiction buttocks or genitals. See Lopez, 162 N.H. at 156. In Lopez, we identified the The legislature h as not defined what constitutes a lewd exhibition of the

seven images is a n alleged lewd exhibition of the buttocks or genitals. RSA 649 - A:2, III. The specific sexually explicit conduct at issue with these

perverted. appea rance of the consummation of sexual intercourse, normal or simulated when it depicts explicit sexual intercourse that gives the genitals, flagellation, bondage, or torture. Sexual intercourse is humans and animals, or any lewd exhibitions of the buttocks, alone or be tween members of the same or opposite sex or between intercourse actual or simulated, normal or perverted, whether sexual organs in the context of a sexual relationship, sexual human masturbation, the touching of the actor ’s or other person’ s p. 11 11

LYNN, C.J.