Argued: June 24, 2015
Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.
Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.
Following a jury trial in Superior Court (Smukler, J.), the defendant, James F. Houghton, was convicted on 23 charges of possession of child pornography. See RSA 649-A:3, I(a) (Supp. 2014). On appeal, the defendant argues that the evidence at trial was insufficient to prove beyond a reasonable doubt that: (1) 15 of the charges involved depictions of individuals under the age of 18; and (2) one of the charges involved a depiction of "sexually explicit conduct." Id. We conclude that, as to nine of the charges, the evidence was insufficient to prove beyond a reasonable doubt that the individuals depicted in the photographs were under the age of 18. Accordingly, we affirm in part, and reverse in part.
The jury could have found, or the record establishes, the following facts. In August 2011, three police officers with the Henniker Police Department executed a search warrant at the defendant's residence. As a result of the search, officers seized a laptop computer belonging to the defendant. The defendant was indicted on 23 charges of possession of child pornography. See id. Each charge is based upon a single digital image or movie file found on the defendant's computer.
At trial, the State introduced 23 images or movie files into evidence as numbered exhibits 1 through 23. At the close of the State's case, the defendant moved to dismiss the indictments that were based upon exhibits 11, 13, and 15, arguing that, because "[y]ou cannot see the faces of the individuals, " the jury "will not be able to make a determination that they were . . . images of child pornography." The trial court denied the motion. The jury subsequently convicted the defendant on all 23 charges. This appeal followed.
On appeal, the defendant argues that the evidence was insufficient for the jury to have concluded beyond a reasonable doubt that the charges based upon exhibits 1 through 15 depicted individuals under the age of 18. The defendant does not challenge his convictions on the charges based upon exhibits 16 through 23, conceding that the individuals depicted in those exhibits "are sufficiently youthful to exclude any reasonable possibility that they are eighteen or older." In addition, the defendant argues that the evidence was insufficient to convict him on the charge based upon exhibit 3, because the photograph does not depict "sexually explicit conduct." See RSA 649-A:2, III (Supp. 2014). The State argues that the evidence was sufficient to convict the defendant of all 15 charges on appeal.
When considering a challenge to the sufficiency of the evidence, we objectively review the record to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, considering all the evidence and all reasonable inferences therefrom in the light most favorable to the State. State v. Francis, 167 N.H. ___, ___, 117 A.3d 158, 163 (2015). "Because a challenge to the sufficiency of the evidence raises a claim of legal error, our standard of review is de novo." State v. Kay, 162 N.H. 237, 243 (2011). Further, because the defendant argues - and the State does not contest - that the State relied solely upon circumstantial evidence to prove that the individuals depicted were under the age of 18, we will assume, without deciding, that the images are circumstantial evidence of the age of the individuals depicted. "When the evidence is solely circumstantial, it must exclude all reasonable conclusions except guilt." State v. Zubhuza, 166 N.H. 125, 130 (2014) (quotation omitted). Thus, we evaluate the evidence in the light most favorable to the State and determine whether the alternative conclusion is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Id.
RSA 649-A:3, I(a) states that "[n]o person shall knowingly . . . [b]uy, procure, possess, or control any visual representation of a child engaging in sexually explicit conduct." "Child" is defined as "any person under the age of 18 years." RSA 649-A:2, I (Supp. 2014). Thus, the State had the burden of proving beyond a reasonable doubt that the subjects depicted in the exhibits were "under the age of 18 years." Id.
We have previously observed that "[t]he determination of the age of the subjects in [a] photograph is for the trier of fact, relying on everyday observations and common experiences." State v. Cobb, 143 N.H. 638, 646 (1999) (quotation omitted) (decided under prior version of RSA 649-A:3). "In determining child pornography, based upon its everyday experiences, a trier of fact can determine from a photograph whether" the subject is under the age of 18. Id. (quotation and brackets omitted); see also State v. Clark, 158 N.H. 13, 18 (2008) (holding that State is not required to produce evidence beyond images themselves to prove that pornography depicts real, rather than virtual, children).
The defendant challenges the sufficiency of the evidence with regard to the age of individuals depicted in exhibits 1 through 15. He acknowledges, however, that at trial he moved to dismiss only those charges that were based upon exhibits 11, 13, and 15. Accordingly, we first address his sufficiency of the evidence challenge regarding the charges based upon exhibits 11, 13, and 15 utilizing our sufficiency standard of review. We use our plain error standard of review with regard to the remaining charges. See State v. Guay, 162 N.H. 375, 380 (2011).
After a review of exhibits 11, 13, and 15, we conclude that, even viewing the images in the light most favorable to the State, the photographic evidence was insufficient for a jury to conclude beyond a reasonable doubt that exhibits 11 and 15 depict individuals "under the age of 18 years." RSA 649-A:2, I. Because the face of the individual in exhibit 11 is almost completely obscured, we cannot conclude that a rational trier of fact could have found, beyond a reasonable doubt, that the individual was less than 18 years old. Moreover, the individual in exhibit 11 appears to have undergone puberty. Exhibit 15 is so heavily pixelated that we can discern very little that might be relevant to a determination of the age of the individual in the photograph. Therefore, because the images do not ...