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The State of New Hampshire v. Jonathan Ball

September 28, 2012

THE STATE OF NEW HAMPSHIRE
v.
JONATHAN BALL



The opinion of the court was delivered by: Dalianis, C.J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: June 13, 2012

The defendant, Jonathan Ball, appeals his conviction,

following a bench trial upon stipulated facts, on one felony count of possessing child sexual abuse images (child pornography). See RSA 649-A:3, I(a) (Supp. 2011). On appeal, he argues that the Superior Court (Smukler, J.) erred when it denied his motion to suppress evidence derived from the search of his home computer. We affirm.

I. Background

The following facts are derived primarily from the affidavit submitted to support the warrant to search the defendant's computer. On July 29, 2009, the Concord police received a complaint that a man with a vehicle bearing New Hampshire license plate "WOODFLR" had masturbated in front of the complainant, showed the complainant numerous digital images of female children engaged in sexual activity, and asked the complainant if he would like to have sex with minor girls. The man also told the complainant that he had been having sex with his fifteen-year-old step-daughter since she was ten years old.

After running the license plate number through the New Hampshire

Division of Motor Vehicles' computer system, the police discovered that the plate was registered to Robert Johnston. On July 31, 2009, the police executed a warrant to search his home. While there, the police interviewed his step- daughter, who confirmed that Johnston had been sexually abusing her since she was in sixth grade. The step-daughter told the police that "at some point," Johnston took nude photographs of her and sent them to others using his cellular telephone; she said that some of these photographs were sexually explicit.

The step-daughter also described engaging in sexual activity with Johnston on July 28, 2009, in the presence of a man named "John."

Specifically, she described performing oral sex on Johnston in his parked vehicle while John stood outside the vehicle and masturbated. She stated that then John inserted his hand in her vagina. She told the police that on that same day, she and Johnston went to John's house in Pembroke and had sexual intercourse in John's bedroom. The step-daughter said that John joined her and Johnston on the bed and masturbated while he watched them have sex.

The step-daughter told the police that John's bedroom is located on the second floor and that to access it one has to walk through a sitting room in which there is a computer. The step-daughter told the police that on July 31, 2009, she observed John and Johnston "exchange[ ] messages by phone." The step-daughter said that John drove a yellow SUV with the license plate "AJ- WINGS."

On August 3, 2009, the police learned that a yellow SUV with the license plate "AJ-WINGS" is registered to the defendant. The police also found the defendant's Pembroke address. Based upon all of this information, the police submitted an application for a warrant to search the defendant's home, computer, and cell phone for evidence of child pornography. The Hooksett District Court granted the application on August 4, 2009.

The search of the defendant's computer revealed one computer file containing four images and two videos of children engaging in sexual acts. The search also revealed e-mails between the account on the defendant's computer and another online account describing sexual encounters involving a female of unknown ...


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