State v. Hansen

272 A.3d 1040

STATE

v.Madison HANSEN.

No. 2019-22-C.A.

P2/16-470A

Supreme Court of Rhode Island.

April 27, 2022

Owen Murphy, Department of Attorney General, for State.

Angela M. Yingling, Office of the Public Defender, for Defendant.

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

Justice Goldberg, for the Court.

This case came before the Supreme Court on December 1, 2021. The defendant, Madison Hansen (defendant or Hansen), appeals from a judgment of conviction of one count of possession of child pornography, following a bench trial. The trial justice found, beyond a reasonable doubt, that the defendant knowingly possessed digital images depicting minors engaging in sexually explicit conduct, in violation of G.L. 1956 § 11-9-1.3. The defendant asserts that the conviction violates his First Amendment right to free speech because, he contends, the images he possessed do not constitute child pornography. For the reasons stated in this opinion, the defendant's appeal is denied, and the judgment of conviction is affirmed.

Facts and Travel

The defendant's conviction arose from his knowing possession of computer hard drives or digital storage media containing seventeen computer files of images. The defendant stipulated prior to trial to the knowing possession of these materials. In April 2018 the case proceeded to a jury-waived trial; the sole issue before the Superior Court was whether the state had proven beyond a reasonable doubt that some or all of the digital images constituted child pornography in accordance with § 11-9-1.3.¹ The only evidence presented to the trial justice were the images that formed the basis of the charges and Hansen's stipulation that he knowingly possessed the images. After the parties rested, and prior to the trial justice's issuing a bench decision, the parties submitted written closing arguments.

On May 30, 2018, the parties reconvened for a bench decision. The trial justice found beyond a reasonable doubt that the images depicted minors and, after reviewing six of the seventeen images, concluded that those six images depicted minors engaging in sexually explicit conduct, as defined in § 11-9-1.3, amounting to a lascivious exhibition of the genitals or pubic area. The trial justice found it unnecessary to analyze the six images under any other definition of sexually explicit conduct and did not make any findings concerning the remaining eleven images. Based on the six images, Hansen was convicted of one count of possession of child pornography and sentenced to five years at the Adult Correctional Institutions, with one year to serve on home confinement and the balance suspended, with probation.² The defendant filed a timely appeal.

Standard of Review

Generally, "[a] judgment in a nonjury case will be reversed on appeal when it can be shown that the trial justice misapplied the law, misconceived or overlooked material evidence or made factual findings that were clearly wrong." Lamarque v. Centreville Savings Bank , 22 A.3d 1136, 1139-40 (R.I. 2011) (quoting Cathay Cathay, Inc. v. Vindalu, LLC , 962 A.2d 740, 745 (R.I. 2009) ).

"A mixed question of law and fact is one in which the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard." Johnston v. Poulin , 844 A.2d 707, 714 (R.I. 2004) (quoting Direct Action for Rights and Equality v. Gannon , 819 A.2d 651, 662 (R.I. 2003) ). While "[a] trial justice's findings on mixed questions of law and fact are generally entitled to the same deference as the justice's findings of fact[,]" Cummings v. Shorey , 761 A.2d 680, 684 (R.I. 2000), "we ‘review de novo * * * mixed questions of law and fact insofar as those issues impact * * * constitutional matters[.]’ " Foley v. Osborne Court Condominium , 724 A.2d 436, 439 (R.I. 1999) (quoting State v. Campbell , 691 A.2d 564, 569 (R.I. 1997) ); see State v. Lead Industries Association, Inc. , 951 A.2d 428, 464 (R.I. 2008) (employing de novo review to "mixed questions of fact and law that purportedly implicate a constitutional right").

Specifically, when a party raises a First Amendment challenge, we "make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Lead Industries Association, Inc. , 951 A.2d at 464 (quoting Bose Corporation v. Consumers Union of United States, Inc. , 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) ); see Roth v. United States , 354 U.S. 476, 497, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (Harlan, J., concurring in part and dissenting in part) (stating that "a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards"); see also United States v. Amirault , 173 F.3d 28, 33 (1st Cir. 1999) (applying de novo review to an image found to depict child pornography); Commonwealth v. Bean , 435 Mass. 708, 761 N.E.2d 501, 507 (2002) (recognizing that "cases involving speech under the First Amendment require independent appellate review of the offending material to ensure that protected speech is not infringed").

Discussion

Before this Court, defendant argues that the trial justice's decision, deeming the six images as depictions of lascivious exhibitions of genitals or pubic areas, "fell short of the constitutional mark because it unlawfully encroached upon the long-established prohibition of criminalizing non-sexualized images of the human body, a protected form of speech." Accordingly, the issue of whether defendant maintains a First Amendment right to possess the images at issue—that is, whether the images depict protected speech or they depict unprotected child pornography within the meaning of § 11-9-1.3—is a mixed question of law and fact that is entitled to our independent, de novo review.³ See Bean , 761 N.E.2d at 507 (conducting an independent, de novo review of the material in an appeal following a bench trial); see also Lead Industries Association, Inc. , 951 A.2d at 464 ; Johnston , 844 A.2d at 714.

AEvolution of the Prohibition of Child Pornography

The United States Supreme Court opinion in New York v. Ferber , 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), is the cornerstone to understanding whether a depiction falls within the meaning of a statute that prohibits the production, distribution, or possession of child pornography. See, e.g. , United States v. Frabizio , 459 F.3d 80, 83 (1st Cir. 2006) (considering the interpretation of a child pornography statute in the context of Ferber ). This benchmark holding firmly established that child pornography is "a category of material outside the protection of the First Amendment[.]" Ferber , 458 U.S. at 763, 102 S.Ct. 3348.

In Ferber , the United States Supreme Court declared that the government has a compelling interest—of "surpassing importance" to First Amendment protections—in "safeguarding the physical and psychological well-being of [children]" and in preventing sexual exploitation and abuse of children. Ferber , 458 U.S. at 756-57, 102 S.Ct. 3348. Precisely, the Supreme Court concluded that "the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake" as professed by the holder of child pornography.⁴ Id. at 763-64, 102 S.Ct. 3348. The Supreme Court also recognized that the distribution of child pornography created a permanent damning record of the child, which was exacerbated by the circulation of the material, such that in order to control production, the distribution network must be closed. Id. at 759, 102 S.Ct. 3348. Although the advertising, production, and distribution of child pornography are driven by economic motivations, id. at 761, 102 S.Ct. 3348, it is the possession of child pornography that creates the market demand assigning value up that supply chain. See United States v. Harris , 358 F.3d 221, 222 (2d Cir. 2004) (recognizing that the local production of child pornography "feeds the national market and stimulates demand" and its possession is indistinguishable).

Under Ferber , all child pornography is considered unprotected from the shield of free speech—"even that which is not obscene under the standard set forth in Miller v. California , 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) [.]" Frabizio , 459 F.3d at 84 (emphasis added) (citing Ferber , 458 U.S. at 761, 102 S.Ct. 3348 ). In Miller , the Supreme Court set forth basic guidelines for the trier of fact to determine whether material is obscene, including:

"(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller , 413 U.S. at 24, 93 S.Ct. 2607 (internal quotation marks and citations omitted).

After noting the substantial inapplicability of this test to the question of whether a depiction can be considered child pornography, the Supreme Court in Ferber drastically narrowed the Miller test as it relates to child pornography to sexual conduct "adequately defined by the applicable state law" and added an element of scienter. Ferber , 458 U.S. at 764, 765, 102 S.Ct. 3348 ; see also Bean , 761 N.E.2d at 507-08 (determining that the fact that an image is neither obscene nor pornographic "is not relevant on the question whether the nudity depicted falls within the scope of the statutory definition"). As a result, in the context of

"works that visually depict sexual conduct by children[,] * * * [a] trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a

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