Opinion
No. CR 03 0216984 S
February 28, 2005
MEMORANDUM OF DECISION MOTION TO DISMISS
The defendant has filed a motion to dismiss claiming that General Statutes § 53a-193(13) is unconstitutional in that it is overbroad because in defining child pornography § 53a-193(13) impinges upon a significant amount of protected speech, namely the possession of pornographic material produced without using actual children. Additionally, the defendant claims that § 53a-193(13) is void for vagueness because its reference to "other visual reproductions" is so unclear that it does not put a reasonable person on notice as to what conduct is prohibited.
A summary of the facts reveals that on March 6, 2004, an Ohio undercover police officer accessed an America Online (AOL) chat room that was suspected for being used by individuals exchanging child pornography. The officer received an e-mailed photograph from HART06514 that depicted a female under 16 years of age, totally nude and exposing her genital area.
On March 7, 2003, an undercover Texas police officer logged onto an AOL chat room also suspected as being a member-created website used by persons illegally trading child pornography. The officer typed the command "list me," and he received a photograph of a nude prepubescent girl lying on a bed with a nude adult. The girl depicted in the photograph appeared to be 6 to 7 years old. She was holding the nude male's penis in her mouth with her right hand and she held a pink cylinder in her vagina with her right hand. The individual who had sent the photograph had logged onto the chat room under the screen name HART06514. A subsequent inquiry relating to the AOL subscriber HART06514 revealed that the account belonged to the defendant, with a listed address of 65 Sanford Street, Hamden, Connecticut.
On April 21, 2003, the Hamden Police, having received the foregoing information, executed a search and seizure warrant at the defendant's residence. Three computers were seized, including one that was in operation at the time. The computer that was in operation had a photograph on the screen depicting two females, approximately 10 years of age, engaged in a sexual act.
The defendant then voluntarily gave an audio-taped statement informing the police that he had received approximately 100 photos of naked minors from ages 9 and 10 to teenagers, all of whom were engaged in sexual acts. He viewed these photos and shared them with others through the internet. He stated that he had no contact with any of the minors depicted in the photos.
The defendant's computers and hard drives were examined by the Connecticut State Police Computer Crimes Laboratory and the photo sent to the Texas undercover police officer was recovered from the defendant's computer hard drive. Thereafter, on May 8, 2003, the defendant was arrested and charged with Possession of Child Pornography, General Statutes § 53a-196d.
On November 19, 2003, the defendant submitted a motion to dismiss the complaint against him pursuant to Practice Book § 41-8(8), which reads: "The law defining the offense charged is unconstitutional or otherwise invalid." The defendant complains that language in § 53a-196d "other visual reproductions," as it relates to the definition of child pornography, is overbroad, and impinges on a "significant amount of protected speech."
In challenging the constitutionality of § 53a-196d which includes the statutory definition of child pornography, as set forth in § 53a-193(13), the defendant primarily relies upon the United States Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The defendant claims that § 53a-193(13) is overbroad in violation of the First Amendment to the United States Constitution. General Statutes § 53a-196d(a) states that "a person is guilty of possessing child pornography when he knowingly possesses child pornography, as defined in subdivision (13) of § 53a-193." Possession of child pornography is a class D felony. General Statutes § 53a-193(13) defines child pornography as "any material involving a live performance or photographic or other visual reproduction of a live performance which depicts a minor in a prohibited sexual act." The terms "minor" and "prohibited sexual act" are defined in General Statutes § 53a-193(2)(3). Section 53a-193(2)(A) defines "minor" as "any person less than seventeen years old as used in § 53a-196 and less than sixteen years old as used in Sections 53a-196a, 53a-196b and 53a-196c," and Subdivision (3) of § 53a-193 defines "prohibited sexual act" as "erotic fondling, nude performance, sexual excitement, sado-masochistic abuse, masturbation or sexual intercourse."
General Statutes § 53a-196d has since been repealed and has been replaced by P.A. 04-139(4)(2) (Effective Oct. 1, 2004).
General Statutes § 53a-193 has since been repealed and has been replaced by P.A. 04-139(2) (Effective Oct. 1, 2004).
Child pornography is an exception to First Amendment freedoms because it exploits and abuses children. New York v. Ferber, 458 U.S. 747, 762 (1982). The United States Congress enacted the Child Pornography Prevention Act of 1996 (CPPA) to fight against the sexual exploitation of children. See 18 U.S.C. §§ 2252, 2252A (2000). Virtual child pornography does not use real children or images of real identifiable children. In Ashcroft v. Free Speech Coalition, supra, 535 U.S. 234 (2002), the Supreme Court held that the government may not criminalize the possession and production of virtual child pornography if no child is used in the production of pornography and the images are completely fictional. The reasoning set forth was that production of virtual child pornography does not sexually abuse an actual child. Id. at 250. Virtual child pornography must therefore, be distinguished from actual child pornography in order to be protected by the First Amendment. "The Supreme Court held the CPPA to be unconstitutional by making the distinction between `virtual' and actual child pornography, and by doing so, expanded the field of free speech." 2002 Duke L. Tech. Rev. 0019 (Sept. 23, 2002). Ashcroft invalidated on First Amendment grounds two provisions of the Child Pornography Prevention Act of 1996. Both of these provisions were aimed at stemming the increasing proliferation of virtual child pornography. First, the Court rejected § 2256(8)(B), which criminalized a visual depiction that "is, or appears to be, of a minor engaging in sexually explicit conduct." Second, the Court disapproved § 2256(8)(D), the so-called "pandering" prohibition, which criminalized a visual depiction that is marketed in a manner that "conveys the impression" that the material depicts a minor engaging in sexually explicit conduct. The Court determined that each of these prohibitions were substantially overbroad and unconstitutional.
18 U.S.C. §§ 2256(8)(B). Subsection (8)(B) prohibits "any visual depiction, including any photograph, film, video, picture or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct." To ensure that defendants possessing child pornography using real minors cannot evade prosecution, Congress extended the ban to virtual child pornography. "In sum," the court said, "§§ 2256(8)(B) covers material beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment. The provision abridges the freedom to engage in a substantial amount of lawful speech. For this reason, it is overbroad and unconstitutional.
18 U.S.C. §§ 2256(S)(D). Subsection (8)(D) defines child pornography to include any sexually explicit image that was "advertised, promoted, presented, described or distributed in such a manner that conveys the impression it depicts "a minor engaging in sexually explicit conduct." This second provision prevents child pornographers and pedophiles from exploiting prurient interests in child sexuality and sexual activity through the production or distribution of pornographic material which is intentionally pandered as child pornography. The determination turns on how the speech is presented, not on what is depicted. The provision prohibits a sexually explicit film containing no youthful actors, just because it is placed in a box suggesting a prohibited movie. Possession is a crime even when the possessor knows the movie was mislabeled.
The crucial factor in the Supreme Court's decision in Ashcroft v. Free Speech Coalition, supra, 535 U.S. 234, was the distinction between actual child pornography, using real children and virtual child pornography, in which children were not employed in the process of production. "Although the Supreme Court reaffirmed that legally obscene virtual child pornography could be proscribed without affronting the First Amendment, the Court also reaffirmed that the key to allowing the proscription of child pornography that was not legally obscene was the presence of an actual child in the production process." United States Senate Committee on the Judiciary (Oct. 2, 2002). Without the exploitation of a real child in the production of such material, the requirements of existing obscenity laws could not be circumvented, nor could the requirements of child pornography law as established by New York v. Ferber, 458 U.S. 747, 762 (1982), be satisfied. Ashcroft v. Free Speech Coalition, supra.
It is with this information in mind that the court addresses the defendant's motion to dismiss.
I ASHCROFT V. FREE SPEECH COALITION
The Ashcroft v. Free Speech Coalition, supra 535 U.S. 234, decision to find the CPPA unconstitutional protects the right of producers to create child pornography using computer-generated images if those images are not "obscene" under Miller v. California, 413 U.S. 15 (1973), or produced using real children. See New York v. Ferber, 458 U.S. 747 (1982). The standard in Miller v. California "requires the government to prove that the work in question, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political or scientific value." Ashcroft v. Free Speech Coalition, supra at 246. In New York v. Ferber, supra, 458 U.S. 747, the courts upheld the prohibition on the use of children to create pornographic images. In Ashcroft, supra at 240, Justice Kennedy said "As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California, 413 U.S. 15 (1973)." The decision in New York v. Ferber "recognized that the Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children." Id. In Ashcroft the Supreme Court stated that by prohibiting child pornography that does not depict an actual child, the statute goes beyond New York v. Ferber, Id. at 250. Like the law in Ferber, the CPPA seeks to reach beyond obscenity, and makes no attempt to conform to the Miller standard. The principal question to be resolved, then, is whether the CPPA is constitutional where it proscribes a significant universe of speech that is neither obscene under Miller nor child pornography under Ferber. Ashcroft v. Free Speech Coalition, supra, 535 U.S. 240.
Prior to 1996, Congress defined child pornography as the type of depictions at issue in New York v. Ferber, images made using actual children. The CPPA retained that prohibition and added three other categories of speech. The first, 18 U.S.C. §§ 2256(8)(B), and the third, §§ 2256(8)(D), were at issue in Ashcroft v. Free Speech Coalition and are the two specific sections declared overbroad and unconstitutional.
The defendant claims that words "visual reproduction" in General Statutes § 53a-193(13) are overbroad in violation of the First Amendment to the United States Constitution in light of Ashcroft v. Free Speech Coalition, supra, 535 U.S. 234 (2002). In Ashcroft, the Court struck down language in 18 U.S.C. §§ 2258(8)(B) which "prohibited `any visual depiction,' including any photograph, film, video, picture or computer or computer-generated image or picture that is, or appears to be of a minor engaging in sexually explicit conduct." The Court held that this language was overbroad because this section did not specify how the image was produced. The Ashcroft Court did not strike down U.S.C. § 2256(8)(A), which prohibited pornographic images using real children. The defendant in the present case suggests, therefore, that the pornography he is charged with possessing may have been created without the use of real children and is protected speech. Pursuant to Ashcroft, computer generated images or pictures known as "virtual child pornography" is protected speech under the First Amendment.
The State of Connecticut contends that the term "visual reproduction," as defined in General Statutes § 53a-193(13) is not equivalent to computer-generated "virtual child pornography" that was struck down in Ashcroft. The state argues that the terms in § 53a-193(13) require child pornography be produced using real children, which is consistent with the language in 18 U.S.C. § 2256(8)(A), which Ashcroft did not strike as unconstitutional.
II OVERBREADTH CLAIM CT Page 3706
The first issue requires the court to pass upon the facial validity of the statute against a challenge that it violates the defendant's First Amendment rights of free speech. Connecticut courts have not hesitated to consider facial challenges premised upon free speech claims. See, e.g., State v. Linares, 232 Conn. 345, 363-87, 655 A.2d 737 (1995). They have done so to vindicate two substantial interests: (1) eliminating the statute's `chilling effect' on others who fear to engage in the expression that the statute unconstitutionally prohibits; and (2) acknowledging that every defendant has the right not to be prosecuted for expression under a constitutionally overbroad statute. Ramos v. Vernon, 254 Conn. 799, 811-12, 761 A.2d 705 (2000); State v. Linares, supra, 364. Our Supreme Court in Connecticut has considered such facial challenges premised upon free speech rights guaranteed under both the state; id. at 812; see State v. Linares, supra, 232 Conn. 377-87; and the federal constitution. See State v. Linares, supra, 363-76.
The court begins its consideration of this claim with a discussion of the general principles of constitutional adjudication relevant to an overbreadth challenge. "The essence of an overbreadth challenge is that a statute that proscribes certain conduct, even though it may have some permissible applications, sweeps within its proscription conduct protected by the freedom of speech." Ramos v. Vernon, supra, 254 Conn. 799, 812. "Free speech scrutiny, in order to protect expression adequately, must be triggered by a threshold finding that particular government regulation has the incidental effect of burdening expression." Id. at 813. "Thus, although consideration of particular expressive conduct's effect on the legislature is relevant to determine, under the rubric of free speech analysis, whether the government may constitutionally prohibit that conduct, such consideration of the effect cannot be used to preclude the constitutional inquiry from ever taking place." State v. Linares, supra, 232 Conn. 364-65 n. 15. "A single impermissible application of [an ordinance], however, will not be sufficient to invalidate the [ordinance] on its face; rather, to be invalid, [an ordinance] must reach a substantial amount of constitutionally protected conduct." Ramos v. Vernon, supra, at 813, citing State v. Linares, supra, 232 Conn. 364. In all constitutional challenges a party attacking the constitutionality of a validly enacted statute bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt. Id. at 814; State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989); Zapata v. Burns, 207 Conn. 496, 507-08, CT Page 3707 542 A.2d 700 (1988). The court will indulge in every presumption in favor of the statute's constitutionality; Ramos v. Vernon, supra, at 814, citing State v. Breton, supra at 269. "[W]hen called upon to interpret a statute, the court searches for an effective and constitutional construction that reasonably accords with the legislature's underlying intent." Ramos v. Vernon, supra at 814; see also, State v. Floyd, 217 Conn. 73, 79 (1991). "The court has the power to construe statutes narrowly to comport with the constitutional right of free speech." Id.
The United States Supreme Court has ruled that the First Amendment's overbreadth doctrine must only be applied as a last resort, even when statutory language may be overbroad beyond constitutional interpretation. "When a federal court is dealing with a federal statute challenged as overbroad, it should, of course, construe the statute to avoid constitutional problems, if the statute is subject to such a limiting construction." New York v. Ferber, supra, 458 U.S. 769 n. 24; citing Crowell v. Benson, 285 U.S. 22, 62 (1932). However, ". . . if the federal statute is not subject to a narrowing construction and is impermissibly overbroad, it nevertheless should not be stricken down on its face; if it is severable, only the unconstitutional portion is to be invalidated." New York v. Ferber, supra, 458 U.S. 769 n. 24, citing U.S. v. Thirty-Seven Photographs, 402 U.S. 363 (1971).
The law in Connecticut is clear that the possession of child pornography defined in § 53a-1939(13) is not protected by the First Amendment. A person has no right to possess child pornography when the person depicted is younger than 16 years of age. State v. Ehlers, 252 Conn. 579, 587-88, 750 A.2d 1079 (1999); see also Ferber v. New York, supra, 456 U.S. 747. In deciding State v. Ehlers, supra, the Court applied a narrow construction of § 53a-193(13) in defining the term "audience."
"The meaning of the term audience is a question of statutory interpretation, and our review is, therefore, plenary." Wright Bros. Builders, Inc. v. Dowling, supra, 247 Conn. 226. "It is well settled that statutory construction involves a reasoned search for the legislature's intent, focusing on the language of the statute, [and] its legislative history, including the purpose and policies behind its enactment . . ." Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 346, 736 A.2d 824 (1999). We are required to "construe a statute in a manner that will not thwart [the legislature's] intended purpose or lead to absurd results . . . We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve . . . If there are two possible interpretations of a statute, we will adopt the more reasonable construction over one that is unreasonable." (Internal quotation marks omitted.) State v. Ehlers, supra, 252 Conn. 593, quoting, Badolato v. New Britain, 250 Conn. 753, 757, 738 A.2d 618 (1999).
In Ehlers, Court found that the legislative intent of § 53a-193(13) was to protect real children from the harm caused to them by being used as the subjects of child pornography. The court interpreted the term "audience" as follows:
"Accordingly, we conclude that the requirement in § 53a-196d, through its incorporation of § 53a-193(11) and (13), that the live performance depicted in the materials be "performed before an audience"; General Statutes § 53a-193(11); means that there must be some recording or viewing of, or listening to, a live performance, or a reproduction of a live performance, by a person or persons other than the person or persons simultaneously engaged in the performance. The number of such persons recording, viewing or listening to the performance and whether they actually are present at the live performance or depicted in reproductions of it are irrelevant for purposes of determining whether an audience exists. Thus, an audience, for the purposes of § 53a-196d, could consist of a single photographer of the live performance, whether or not he or she actually was present at the performance or ever viewed the photographs, or a single person viewing photographs of the performance, whether or not any spectator was present at the live performance or depicted in the photographs. This common sense interpretation of the statute advances the legislative purpose of protecting children by targeting the market for child pornography."
State v. Elders, supra, 595-96.
"The defendant has admitted to possessing photographs depicting persons under the age of sixteen years engaged in prohibited sexual acts. The photographs necessarily were taken by a photographer, who would constitute an audience under our reading of § 53a-196d. Therefore, there is ample evidence that the statutory requirement of the existence of an audience has been met. Accordingly, we conclude that the trial court properly denied the defendant's motion to dismiss on the ground that there was insufficient evidence of the existence of an audience."
Id.
In State v. Sorabella, Superior Court, judicial district of New Britain, Docket No. CR 00 188041 (Oct. 23, 2002, Shortall, J.), 33 Conn. L. Rptr. 386, the court considered the defendant's claim that § 53a-193(13), was overbroad and would permit prosecutions similar to those prohibited by Ashcroft v. Free Speech Coalition, supra, 535 U.S. 234. The court reviewed the legislative history of the statute and rejected the defendant's motion to dismiss. The court noted that Ashcroft only severed 18 U.S.C. § 2258(8)(B) that banned "virtual child pornography `that appears to depict minors' but is produced by means other than using real children, by using youthful-looking adults or computer imaging technology." Id., citing Ashcroft v. Free Speech Coalition, supra. Judge Shortall in Sorabella, noted that Ashcroft upheld the decision in New York v. Ferber, supra 458 U.S. 747. Ferber upheld a New York statute that prohibited the distribution and sale of child pornography that was produced using real children. The Sorabella court relied on the analysis in New York v. Ferber, supra, and held that § 53a-193(13) limits prosecutions involving child pornography to those in which real children are used in the production process, as required by New York v. Ferber, supra.
"It is apparent from a reading of the definition of child pornography in Public Act No. 85-496, now codified in General Statutes § 53a-193(13), that it limits prosecutions involving child pornography to those in which real children are used in the production process, as required by Ferber. And, it was intended to do just that. In the House of Representatives, when the amendment including this definition was adopted, Rep. Fleming stated that "the language involving a live performance or photographic or other visual reproduction of a live performance . . . was taken from the Ferber decision . . ." in order to address "concerns which were expressed by some of the members of the Chamber concerning the constitutionality of the bill . . ." 28 H.R. Proc., Pt. 29, 1985 Sess., p. 10699-700. See New York v. Ferber, supra, 458 U.S. 764-65 ("We note that the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection.")
The statute under which the accused is charged does not permit his prosecution for importing into this state any child pornography other than that in which real minors were used in the production process, as required by the Ferber and Ashcroft decisions. Therefore, it does not suffer from the same deficiencies that led the Supreme Court to strike down the federal statute at issue in Ashcroft."
State v. Sorabella, supra.
General Statutes § 53a-193(13) and its definition of child pornography is not overbroad. It limits prosecutions to child pornography that is produced by using real children, depicted performing live sexual acts.
The court notes that § 53a-193 has been repealed and replaced by Public Act 04-139 Sec. 2. (effective July 1, 2004). Public Act 04-139 Sec. 2(13) defines "child pornography" as meaning "any visual depiction including any photograph, film videotape, picture or computer-generated image or picture, whether made or produced by electronic, mechanical or other means, of sexually explicit conduct, where the production of such visual depiction involves the use of a person under sixteen years of age engaging in sexually explicit conduct, provided that whether the subject of the visual depiction was a person under sixteen years of age at the time the visual depiction was created is a question to be determined by the trier of fact." Public Act 04-1395 Sec. 2(15) defines "visual depiction" as including "undeveloped film and video tape and data . . . that is capable of conversion into a visual image and includes encrypted data." A review of the legislative debate in the House of Representatives and the Senate surrounding passage of HB5043 and its amended counterpart in the Senate, SB makes it clear that the legislature in passing PA04-139 was re-emphasizing and confirming the requirement that "visual depiction" must use an actual person under sixteen years of age.
There is no doubt that the legislature felt a need to clarify the definition of "child pornography" due its concerns regarding the constitutional issues raised in Ashcroft v. Free Speech Coalition, supra. However, this court finds that the definitions set forth in Public Act 04-139 Sec. 2(13) and (15) are not inconsistent with the former § 53a-193(13), which defined "child pornography" as "any material involving a live performance or photographic or other visual reproduction of a live performance which depicts a minor in a prohibited sexual act. Both Public Act 04-139 and § 53a-193(13) require the use of actual children under the age of sixteen in "visual reproductions" and "visual depictions." Therefore, the defendant's overbreadth challenge must be denied.
III VAGUENESS CLAIMS A. FACIAL VAGUENESS CLAIM
The defendant argues the terms "other visual reproduction" and "minor engaged in a sexual act" are facially vague under § 53a-193(13), and that the statute does not provide a reasonable person notice of the conduct proscribed by the statute. The defendant also claims that the terms, as defined, interfere with his First Amendment right of free speech by prohibiting possession of computer generated child pornography.
The vagueness doctrine requires "that a statute provide fair notice of the conduct to which they pertain and establish minimum guidelines to govern law enforcement." State v. Indrisano, 228 Conn. 795, 640 A.2d 986 (1994). The standards for evaluating vagueness were enunciated in Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972):
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.
Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.
(Footnotes omitted.) Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186 reh. denied, 456 U.S. 950, 102 S.Ct. 2023 (1982).
"The most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of a constitutionally protected right. If . . . the law interferes with the right of free speech or association, a stringent facial vagueness should apply." Id. 499; see also State v. Williams, 205 Conn. 456; 534 A.2d 230 (1987).
The State contends that the plain meaning of the terms "live performance" in § 53a-193(13) requires the court to find that the legislative intent in enacting the statute was to prohibit child pornography that was produced using actual children. The State relies upon State v. Elhers, 252 Conn. 579, which held, "There is no first amendment right to possess materials otherwise covered by the definition of child pornography set forth in § 53a-193(13) when the person depicted is younger than eighteen years." The statutory analysis by the Elhers court found that the legislature enacted the statute to protect victims of child pornography and that such laws do not violate the first amendment. Id., citing, New York v. Ferber, supra, 458 U.S. 747.
The State points out that the defendant, in his memorandum of law, concedes that § 53a-193(13) provides sufficient notice to prohibit the possession of a videotape depicting a fifteen-year-old girl having sex with an eighteen-year-old man. In light of this concession and State v. Ehlers, supra, 252 Conn. 579, the facial vagueness challenge to § 53a-193(13) fails. "A determination that the statute is not vague with respect to at least one application will defeat a facial challenge." State v. Wilchinski, 242 Conn. 211, 700 A.2d 1 (1997), citing Benjamin v. Bailey, 234 Conn. 455; 662 A.2d 1226 (1995). "The rule of federal vagueness jurisprudence is that prior judicial decisions interpreting a state statute are authoritative if they are decisions of a court of statewide jurisdiction, the decisions of which, are binding upon all trial courts in the absence of a conflicting decision of the [state] Supreme Court." State v. Indrisano, 228 Conn. 795 (1994).
The defendant's memorandum of law sets forth the following:
If Ron had a videotape of a fifteen-year-old girl having sex with a eighteen-year-old man, he would possess a visual reproduction of a minor engaged in a sexual act. If Ron gives Ralph a copy of his videotape, then Ralph is in possession of a reproduction of child pornography. If Ralph swapped a color copy of a naked twelve-year old for Ron's video, then Ron now possesses a visual reproduction of a minor engaged in a sexual act.
B. "AS APPLIED" VAGUENESS
The defendant specifically claims that the terms "other visual reproduction" and "minor engaged in a sexual act" used to define child pornography in § 53a-193(13) are vague as applied to the photographs on the defendant's computer. The defendant relies on an assumption that the numerous photographs he collected on his computer are computer-generated, and that computer-generated images of children cannot engage in a sexual act as defined by the statute.
The defendant also maintains that the term "other visual reproduction" is synonymous with the term "any visual depiction including any photograph, film, video, picture, or computer-generated image or picture that is, or appears to be of a minor engaging in sexually explicit conduct" contained in U.S.C § 2258(8)(B) and held to be constitutionally overbroad and vague in Ashcroft v. Free Speech Coalition, supra, 535 U.S. 234. The court disagrees. The statutory analysis conducted in State v. Elders, supra, 252 Conn. 589-92, confirms that the definition of child pornography in § 53a-193(13), as applied to § 53a-196, conforms to the decision in Ashcroft v. Free Speech Coalition, supra. This statutory analysis in State v. Ehlers, supra, confirms that the Connecticut legislature intended to prohibit the possession of materials produced using real children and excluded language held constitutionally vague in Ashcroft v. Free Speech Coalition, supra.
"When a defendant challenges a statute on the facts as applied to his case, the defendant must show that a reasonable person could not have foreseen that the statute would be applied to his conduct or that he was the victim of arbitrary enforcement practices." State v. Indrisano, supra, 228 Conn. 795. The court agree with the State that a reasonable person who received the numerous photographs over the internet, as the defendant did, could foresee that the photographs depicted actual children engaged in sexual acts with adults.
Additionally, the crime of Possession of Child Pornography § 53a-196d requires the State to prove that a person "knowingly" possess child pornography. "[A] statute's scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the defendant that his conduct is proscribed." State v. Indrisano, supra, 228 Conn. 795. General Statutes § 53a-196b defines "knowingly" as follows: "knowingly" means having general knowledge of or reason to know or a belief or ground for belief which warrants further inspection or inquiry as to (1) the character and content of any material or performance which is reasonably susceptible of examination by such person and (2) the age of the minor employed."
A review of the allegations against the defendant reveals that the defendant took three affirmative steps to obtain the photographs on his computer. First, he accessed websites identified as being used to trade child pornography. Second, on two separate dates, he sent photographs depicting child pornography to two different individuals. Third, he downloaded approximately 100 photographs onto his computer. These affirmative acts are sufficient to hold that the defendant "knowingly" possessed child pornography, and that his home computer was under his dominion and control. When a court is presented with a motion to dismiss any information, the proffered proof must be viewed most favorably to the state. State v. Morrill, 193 Conn. 602; 478 A.2d 994 (1984). The question of whether the photographs on the defendant's computer depict real children is a question of fact, not law, and it is appropriate for the trier of fact to determine this question. See, U.S. v. Reardon, 349 F.3d 608 (9th Cir. 2003). The mere speculation of the defendant that the photographs that he downloaded onto his computer may have been computer-generated is insufficient to dismiss the information against him. U.S. v. Vig, 167 F.3d 443 (8th Cir. 1994). The State has alleged sufficient facts to satisfy the requirement of scienter, and a jury could reasonably infer that the photographs depict real children.
After Ashcroft v. Free Speech Coalition, supra, the government must prove that an image depicts actual children to sustain a conviction. U.S. v. Hilton, No. 03-1741 (Sept. 27, 2004) (1st Cir. 2004); see also, U.S. v. Slanina, 359 F.3d 356 (5th Cir. 2004); U.S. v. Ellyson, 326 F.3d 522 (4th Cir. 2003).
IV CONCLUSION
The court having reviewed the decisions in Ferber v. New York, supra, 458 U.S. 747 and State v. Ehlers, 252 Conn. 579, as well as, having determined the plain meaning of § 53a-193(13) finds that the allegations regarding the defendant's conduct are outside the protection of the First Amendment. The court rejects the defendant's argument that the language in § 53a-193(13) "visual reproduction of a live performance" is the same as the language "computer-generated image or picture" and "is or appears to be" in 18 U.S.C. 2256(8)(B) which was declared unconstitutional in Ashcroft v. Free Speech Coalition, supra, 535 U.S. 234. Whether or not the images on the defendant's computer are actual or real children will be left to the trier of fact. See, U.S. v. Richardson, 304 F.3d 1061 (11th Cir. 2002); see also, U.S. v. Bender, 290 F.3d 1279 (11th Cir. 2002); U.S. v. Vig, supra, 167 F.3d 443; U.S. v. Nolan, 818 F.2d 1015 (1st Cir. 1987).
Accordingly, the defendant's motion to dismiss is hereby denied.
THE COURT
By
Arnold, J.