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    "judges": [
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      "STATE OF NORTH CAROLINA v. ROGER DALE HOWELL, Dependant"
    ],
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      {
        "text": "HUDSON, Judge.\nOn 7 August 2000, Defendant Roger Dale Howell was indicted by a Gaston County Grand Jury on multiple counts of second-degree sexual exploitation of a minor. On 25 November 2002, a jury convicted defendant of 43 counts of third-degree sexual exploitation of a minor. Upon his convictions, Judge Patti sentenced defendant to six consecutive terms of imprisonment of six to eight years. These sentences were suspended and defendant was placed on supervised probation for 60 months. Defendant appeals his convictions and sentence, and for the reasons set forth below, we find no error.\nBACKGROUND\nThe evidence tends to show that in February or March 2000, defendant began communicating over the Internet with Jamie Renee Hammonds via instant messages. Although both lived in Gastonia, North Carolina, defendant and Ms. Hammonds were not acquainted. Ms. Hammonds testified that on 24 May 2000, she began posing online as \u201cSissy,\u201d Ms. Hammonds\u2019 fifteen-year-old babysitter. Initially, she posed as the babysitter to get defendant to leave her alone, but after conversing with defendant as \u201cSissy,\u201d Ms. Hammonds became suspicious of defendant\u2019s interest in the purported fifteen-year-old. Hammonds sent defendant a picture of her actual babysitter and testified that defendant later asked \u201cSissy\u201d to make a \u201cvery sexy picture that on a scale of 1 to 10 would be a 10.\u201d Hammonds testified that the two discussed meeting somewhere and that defendant again asked \u201cSissy\u201d to send a \u201csexy\u201d picture of herself. Hammonds continued communicating with defendant and contacted law enforcement authorities including Crimestoppers, the Missing and Exploited Children's hotline, and Detective Hawkins of the Gastonia Police Department.\nAfter further online conversations between Hammonds and defendant, Detective Hawkins went to Hammonds\u2019 house and viewed transcripts of her conversations with defendant, as well as photographs defendant had sent her. The police then set up an undercover meeting between \u201cSissy\u201d and defendant. A female officer went to Hammonds\u2019 house, where posing as \u201cSissy,\u201d she chatted with defendant online, spoke with him on the telephone, and set up a meeting. Defendant met the undercover officer at a local park, believing she was \u201cSissy,\u201d and asked her about the pictures she was supposed to bring to him. Officers arrested him in the park.\nPolice officers executed a search warrant at defendant's home and seized a computer, which was turned over to SBI Agent Mike Smith, an expert in computers and computer evidence of crimes against children. On the hard drive of the seized computer, Agent Smith found over 200 pictures depicting minors engaged in sexual acts. These images were received in five zip files, and then stored on the computer\u2019s hard drive in five separate directories.\nANALYSIS\nI.\nDefendant argues that the trial court erred when it denied his motion to dismiss some or all of the charges on grounds of double jeopardy and when it denied his motion to arrest judgment on all but one count. In these assignments of error, defendant contends that the charges against him were multiplicitous. Defendant asserts that the possession of photos on a single hard drive constitutes only one offense or, in the alternative, no more than five.separate counts, one for each downloaded zip file. We disagree.\nDefendant argues that the applicable statutory definitions do not support the multiple charges against him. Defendant was convicted of violating N.C.G.S. \u00a7 14-190.17A(a) (2000), which provides in pertinent part:\nA person commits the offense of third degree sexual exploitation of a minor if, knowing the character or content of the material, he possesses material that contains a visual representation of a minor engaging in sexual activity.\nId. N.C.G.S. \u00a7 14-190.13 (2000) defines \u201cmaterial\u201d as: \u201cPictures, drawings, video recordings, films or other visual depictions or representations but not material consisting entirely of written words.\u201d Id. Defendant suggests that because the definition of \u201cmaterial\u201d specifies items in the plural, the photographs found on his computer constitute only a single charge.\nIn support of this argument, defendant cites a Delaware case where the court held that multiple charges against a defendant who possessed multiple child pornography photographs were not multi-plicitous because the applicable statute referred to a singular \u201cvisual depiction.\u201d Fink v. State, 817 A.2d 781 (Del. 2003). Although not controlling, we read Fink as undermining rather than supporting d\u00e9fendant\u2019s argument. Defendant focuses solely on the plural form in the definition of material, in N.C.G.S. \u00a7 14-190.13, while ignoring the plain language of the statute under which he was convicted, N.C.G.S. \u00a7 14-190.17A(a). The latter section makes possession of material containing \u201ca visual representation,\u201d a violation of the law. N.C.G.S. \u00a7 14-190.17A(a) (emphasis added). Fink supports conviction on multiple counts where the statute proscribes possession of a singular visual depiction or representation, as it does here. Furthermore, we conclude that the listing of plural items in the definition of \u201cmaterial\u201d is merely a matter of style.\nAlthough North Carolina Courts have not previously addressed multiplicitous charges under these statutes, many jurisdictions have done so in similar cases. The Supreme Courts of Utah and South Dakota have held that their respective statutes, which, like North Carolina\u2019s, define \u201cmaterial\u201d in the plural, support multiple convictions for possession of child pornography downloaded to a defendant\u2019s computer. State v. Morrison, 31 P.3d 647 (Utah 2001); State v. Martin, 674 N.W.2d 291 (S.D. 2003). In addressing the issue of multiplicity, many courts have focused on whether the relevant statutes refer to \u201ca\u201d or \u201cany\u201d visual representation. While some jurisdictions conclude that the use of \u201cany\u201d is ambiguous and cannot support multiple charges for possession of multiple photographs on a computer hard drive or floppy disk, most construe \u201cany\u201d to support multiple convictions for possession of multiple images. See, e.g., U.S. v. Kimbrough, 69 F.3d 723 (5th Cir. 19950; State v. Parrella, 736 So. 2d 94 (Fla. App. 1999); American Film Distributors, Inc. v. State, 471 N.E.2d 3 (Ind. App. 1984) (all holding that \u201cany\u201d is ambiguous). But see Martin, 674 N.W.2d 291; State v. Mather, 646 N.W.2d 605, 616 (Neb. 2002); Morrison, 31 P.3d 547; State v. Multaler, 643 N.W.2d 437 (Wis. 2002); U.S. v. Esch, 832 F.2d 531 (10th Cir. 1987) (all holding that \u201cany\u201d supports multiple convictions). We have found no jurisdictions, however, which have held the use of the singular \u201ca\u201d, as appears in our statute, to be ambiguous. Indeed, an Alabama court stated:\nHow, then, should the unit of prosecution be described so that an intent to allow multiple convictions is clear and unequivocal? Instead of using the word \u201cany\u201d to describe the unit of prosecution, the singular word[] \u201ca\u201d . . . should be used.\nMcKinney v. State, 511 So.2d 220, 224 (Ala. 1987). Similarly, we conclude that the plain language of N.C.G.S. \u00a7 14-190.17A(a) supports multiple convictions here.\nDefendant also cites North Carolina cases in support of his argument. See State v. Smith, 323 N.C. 439, 373 S.E.2d 435 (1988); State v. Petty, 132 N.C. App. 453, 512 S.E.2d 428 (1999). Neither of these cases, however, involves violations of the child pornography statutes. Id. In Petty, the Court addressed whether a first-degree sexual offense is a single wrong for jury unanimity purposes and thus is inapposite. 132 N.C. App. at 460-61, 512 S.E.2d at 433. In its short discussion of multiplicity, the Petty Court noted that to avoid multiplicity in an indictment, \u201ca criminal pleading must contain ... [a] separate count addressed to each offense charged.\u201d Id. at 463, 512 S.E.2d at 435 (internal citations omitted). Defendant makes no argument regarding the number of indictments.\nIn Smith, the Court held that a single sale of multiple pornographic magazines could not yield multiple convictions. 323 N.C. at 444, 373 S.E.2d at 438. However, Smith is also easily distinguished from this case, as it involved the defendant\u2019s conviction under N.C.G.S. \u00a7 14-190.1(a), for intentionally disseminating obscenity. Id. The statute involved here, N.C.G.S. \u00a7 14-190.17A(a), differs from the one in Smith in two important ways. First, although enacted at the same time and under the same bill as N.C.G.S. \u00a7 14-190.17A(a), the statute in Smith makes it illegal to sell \u201cany obscene writing, picture or other representation or embodiment of the obscene.\u201d N.C.G.S. \u00a7 14-190.1(a)(l) (emphasis added). The Court reasoned that this language, using \u201cany\u201d rather than \u201ca,\u201d failed to indicate a \u201cclear expression of legislative intent to punish separately and cumulatively for each and every obscene item.\u201d Smith at 437, 373 S.E.2d at 441-42. By contrast, in N.C.G.S. \u00a7 14-190.17A(a), the legislature chose to use the term \u201ca\u201d visual depiction, thus indicating a different intent.\nBoth N.C.G.S. \u00a7\u00a7 14-190.1(a). and 14-190.17A(a) were enacted under a bill entitled, \u201cAn act to strengthen the obscenity laws of this State and the enforcement of these laws . . . and to stop the sexual exploitation . . . of minors\u201d (emphasis added). See Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 549, 351 S.E.2d 305, 309 (1986), aff\u2019d 320 N.C. 485, 358 S.E.2d 383 (1987). But, in the two statutes, the legislature addressed' two distinct societal problems. Obscenity laws, such as N.C.G.S. \u00a7 14-190.1(a), address the public or community morality and serve to \u201cprotect[]... society as a willing or unwilling audience from the corrupting effects of obscenity.\u201d Id. at 551-52, 351 S.E.2d at 311. Child pornography laws, such as N.C.G.S. \u00a7 14-190.17A(a), on the other hand, are designed to prevent the victimization of individual children, and to protect \u201cminors from the physiological and psychological injuries resulting from sexual exploitation and abuse.\u201d Id. This Court has noted that child pornography poses a particular threat to the child victim because \u201cthe child\u2019s actions are reduced to a recording [and] the pornography may haunt him in future years, long after the original misdeed took place.\u201d Id. at 568-69, 351 S.E.2d at 320 (citing New York v. Ferber, 458 U.S. 747, 759, 73 L.Ed. 2d 1113, 1124 (1982)). Intending to protect individual minors from harm, the General Assembly wrote N.C.G.S. \u00a7 14-190.17A(a) to support a charge for each image. In Smith, the statute was directed at the community morality concerns of obscenity, not to the victimization of individual children. We conclude, therefore, that the legislature intended by \u00a7 14-190.17A(a) that a defendant could be charged and convicted on multiple counts for the 43 child pornography images on his computer hard drive.\nWithout abandoning his argument that he should only have been convicted on one count of possession of child pornography, defendant argues alternatively that the evidence supports, at most, five counts, as there were five downloads of one zip file each. Although the State\u2019s evidence regarding the downloads is somewhat confusing, it did show five zip files on defendant\u2019s hard drive, each containing multiple compressed files with child pornography images. The State\u2019s witness, Agent Smith, testified that it appeared that defendant downloaded these files from the Internet. Defendant argues that each of the five downloaded zip files is the technological equivalent of a digital magazine. Accordingly, defendant asserts that as in Smith, where a magazine supported only one charge, we should treat each zip file as only one item, rather than allowing separate charges for each photo. We decline to do so.\nAs discussed, Smith does not apply here, as the intent of obscenity statutes is different from that of child pornography statutes. Furthermore, even if there were only five \u201cdownloads,\u201d the State\u2019s evidence tended to show that each of the two hundred individual photographs on defendant\u2019s computer, found within the five zip directories, had been opened on defendant\u2019s computer. As each of the images had been opened, and saved on defendant\u2019s hard drive (regardless of what \u201cdirectory\u201d they were in), we hold that the evidence supports the conclusion that defendant \u201cpossessed\u201d each of these 43 images, per N.C.G.S. \u00a7 14-190.17A(a).\nThus, we conclude that defendant\u2019s multiple convictions are consistent with the language and intent of the child pornography statutes and do not violate his right to be free from double jeopardy.\nII.\nDefendant also argues that the statutes under which he was convicted are unconstitutionally overbroad, in violation of the First Amendment of the United States and North Carolina Constitutions. Defendant asserts that the statutes which resulted in his conviction are unconstitutional both facially and as applied to him. However, both this Court, and our Supreme Court have previously addressed this very issue and concluded that the statutes are constitutional. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 352 S.E.2d 305 (1986), aff\u2019d 320 N.C. 485, 358 S.E.2d 383 (1987). Defendant has failed to cite to this controlling precedent or to distinguish his case. As explained below, we are bound to follow the sound rulings of the Cinema I cases.\nIt is well-established that obscenity is not protected expression. Cinema I, 83 N.C. App. at 565, 351 S.E.2d at 318. \u201cThe Supreme Court of the United States has ruled that it is constitutionally permissible to consider as without the protections of the First Amendment those materials classified as child pornography.\u201d Id. (citing Ferber, 458 U.S. at 764, 73 L. Ed. 2d at 1127, which held that pornography depicting actual children can be proscribed regardless of whether the images are obscene because of the State\u2019s paramount interest in protecting children exploited by the production process). Like the defendants in Cinema I, defendant here argues that N.C.G.S. \u00a7\u00a7 14-190.17A(a) and 14-190.13 are overbroad because they extend to images of minors which do not require a live minor for their production and because they prohibit material which is accepted by the community. Although a defendant ordinarily may challenge the constitutionality of a statute only if it is unconstitutional as applied to his prosecution, he may challenge its constitutionality regardless of its application to him if the statute, \u201cmay cause others not before the court to refrain from constitutionally protected speech or expression.\u201d Broadrick v. Oklahoma, 413 U.S. 601, 612, 37 L. Ed. 2d 830, 840 (1973). Thus, defendant\u2019s challenge on this basis is properly before the Court. But, our Courts determined, in the Cinema I cases, that the challenged statutes were not unconstitutionally overbroad. Supra.\nDefendant argues that N.C.G.S. \u00a7 14-190.17A(a) contains unconstitutionally overbroad statutory definitions. The statutory definitions to which defendant objects, include those of \u201cminor,\u201d \u201cmaterial,\u201d and \u201csexual activity,\u201d which appear in in N.C.G.S. \u00a7 14-190.13, as follows:\n(2) Material \u2014 Pictures, drawings, video recordings, films or other visual depictions or representations but not material consisting entirely of written words.\n(5) Sexual Activity. \u2014 Any of the following acts:\na. Masturbation, whether done alone or with another human or an animal.\nc. Touching, in an act of apparent sexual stimulation or sexual abuse, of the clothed or unclothed genitals, pubic area, or buttocks of another person or the clothed or unclothed breasts of a human female.\nId. Defendant argues that the United States Supreme Court\u2019s holding in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 152 L. Ed. 2d 403 (2002), supports his overbreadth argument. We disagree.\nIn Free Speech Coalition, the United States Supreme Court held that the Child Pornography Prevention Act of 1996 (CPPA) was unconstitutionally overbroad because it proscribed \u201cvirtual\u201d child pornography, as well as movies where adult actors play minor children, both of which depict minors but are produced without using real children. Id. at 241, 152 L. Ed. 2d at 415. The Court reasoned that because such depictions \u201crecord[] no crime and createf] no victims by [their] production, [they are] not \u2018intrinsically related\u2019 \u201d to the sexual abuse of children and thus do not fall under Ferber. Id. at 250, 152 L. Ed. 2d at 421. In his brief, defendant contends the State made no showing that the photographs involved depict actual children. We note that defendant did not raise this issue at trial, did not assign it as error on appeal, devotes only one sentence to this argument in his brief, and has never asserted that the children in the picture were other than actual children. Even if he had, however, Cinema I adequately disposes of defendant\u2019s argument.\nDefendant also argues that the statute in his case sweeps too broadly by criminalizing material that does not violate community standards. Specifically, defendant objects to the prohibitions found in N.C.G.S. \u00a7\u00a7 14-190.13 (5)(a) and (c), against depictions of masturbation and touching in an act of apparent sexual stimulation. Again, defendant relies on Free Speech Coalition, which held that the CPAA unconstitutionally proscribed\nthe visual depiction of an idea \u2014 that of teenagers engaging in sexual activity \u2014 that is a fact of modern society and has been a theme in art and literature throughout the ages. Under the CPAA, images are prohibited so long as the persons appear to be under 18 years of age.\n535 U.S. at 246-47, 152 L. Ed. 2d at 41849 (emphasis added). The crucial distinction between the CPAA and the North Carolina statutes is that the CPAA prohibits images in which the person only appears to be a minor, whereas our statutes prohibit only depictions which use an actual minor in their production. Thus, we conclude that Free Speech Coalition is inapposite.\nWe recognize and echo the concerns expressed by defendant and noted by the Cinema I Courts regarding this issue, but ultimately must conclude that the statutes are constitutional. In Cinema I, the Court agreed with plaintiffs that many \u201cPG\u201d and \u201cR\u201d rated films which are \u201c \u2018accepted entertainment\u2019 \u201d may fall within the ambit of N.C.G.S. \u00a7 14-190.13 (5)(c). The Court held, though, that\nwhatever value those . . . films may have, such value is overwhelmingly outweighed by the State\u2019s compelling interest in protecting its youth from the debilitating psychological and emotional trauma that are attendant with child pornography and bear so heavily and pervasively Upon the welfare of children. Our sentiment in this regard was aptly expressed by the Court in Ferber [], as follows:\nWe consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications.\n83 N.C. App. at 566, 351 S.E.2d at 319.. (internal quotations and citations omitted). Importantly, the Court further held that \u201cwhatever overbreadth may exist should be cured through a case-by-case analysis of fact situations to which its sanctions assertedly may not be applied.\u201d Id. Our Supreme Court, in affirming the Court of Appeals\u2019 Cinema I decision, reiterated that, \u201c[f]act situations are readily conceivable in which the statutes at issue, if improperly applied, would be unconstitutional.\u201d 320 N.C. at 491, 358 S.E.2d at 385. Here, while recognizing this possibility, we are bound by the Cinema I decisions that the statutes were not facially overbroad and we conclude that the statutes are constitutional as applied to defendant.\nHI\nDefendant also argues that the trial court erred by imposing consecutive probationary sentences, in violation of N.C. G.S. \u00a7 15A-1346 (2000). We disagree. Consecutive probationary sentences, would indeed violate N.C.G.S. \u00a7 15A-1346, which states that:\n(a) Commencement of Probation. \u2014 Except as provided in subsection (b), a period of probation commences on the day it is imposed and runs concurrently with any other period of probation, parole, or imprisonment to which the defendant is subject during that period.\n(b) Consecutive and Concurrent Sentences. \u2014 If a period of probation is being imposed at the same time a period of imprisonment is being imposed or if it is being imposed on a person already subject to an undischarged term of imprisonment, the period of probation may run either concurrently or consecutively with the term of imprisonment, as determined by the court. If not specified, it runs concurrently.\nId. This Court has held that imposition of consecutive terms of probation violates this statute and must be reversed. State v. Canady, 153 N.C. App. 455, 570 S.E.2d 262 (2002). We disagree, in that the defendant here did not receive consecutive probationary sentences.\nThe judgments indicate that the defendant is subject to six consecutive suspended sentences and a total of five years of probation, and that if defendant\u2019s probation is revoked, the trial court orders that he serve six consecutive sentences. The trial court may, in its discretion, sentence a defendant this way. State v. Moore, 162 N.C. App. 268; 592 S.E.2d 562 (2004). The court imposed 60 months of supervised probation only after making a finding that a longer period was necessary than that prescribed in N.C.G.S. \u00a7 15A-1343.2 (d) (2000) (which would have been not more than 30 months). As we conclude that defendant did not receive consecutive probationary sentences, we overrule this assignment of error.\nNo error.\nJudges TYSON and GEER concur.",
        "type": "majority",
        "author": "HUDSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.",
      "Leslie C. Rawls, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ROGER DALE HOWELL, Dependant\nNo. COA03-1491\n(Filed 15 March 2005)\n1. Sexual Offenses\u2014 third-degree sexual exploitation of minor \u2014 motion to dismiss \u2014 multiplicity of convictions\nThe trial court did not err in a multiple third-degree sexual exploitation of a minor case by denying defendant\u2019s motion to dismiss some or all of the charges on grounds of double jeopardy and by denying his motion to arrest judgment on all but one count arising from 43 child pornography images on defendant\u2019s computer hard drive, because: (1) the plain language of N.C.G.S. \u00a7 14-190.17A(a) supports multiple convictions, and the intent of the child pornography statutes is to prevent the victimization of individual children and to protect minors from physiological and psychological injuries resulting from sexual exploitation and abuse; and (2) even if there were only five downloads, the State\u2019s evidence tended to show that each of the two hundred individual photographs on defendant\u2019s computer, found within the five zip directories, had been opened, and saved on defendant\u2019s hard drive.\n2. Constitutional Law\u2014 overbreadth \u2014 child pornography statutes \u2014 case-by-case analysis of fact situations\nN.C.G.S. \u00a7\u00a7 14-190.17A(a) and 14-190.13 which protect against child pornography are not overbroad even though they extend to images of minors which do not require a live minor for their production and even though defendant contends they allegedly criminalize material that does not violate community standards, because: (1) both the Court of Appeals and our Supreme Court have addressed this very issue and concluded that the statutes are constitutional; and (2) whatever overbreadth may exist should be cured on a case-by-case analysis of fact situations to which their sanctions assertedly may not be applied.\n3. Sentencing\u2014 consecutive probationary sentences \u2014 sexual exploitation of minor\nThe trial court did not err in a multiple third-degree sexual exploitation of a minor case by allegedly imposing consecutive probationary sentences in violation of N.C.G.S. \u00a7 15A-1346, because: (1) defendant did not receive consecutive probationary sentences; (2) the judgment indicated that defendant was subject to six consecutive suspended sentences and a total of five years of probation, that defendant would serve six consecutive sentences if defendant\u2019s probation is revoked, and the trial court in its discretion may sentence a defendant this way; and (3) the trial court imposed 60 months of supervised probation only after making a finding that a longer period was necessary than that prescribed in N.C.G.S. \u00a7 15A-1343.2(d)..\nAppeal by defendant from judgments entered 3 January 2003 by Judge Timothy L. Patti in Gaston County Superior Court. Heard in the Court of Appeals 1 September 2004:'\nAttorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.\nLeslie C. Rawls, for defendant-appellant."
  },
  "file_name": "0058-01",
  "first_page_order": 88,
  "last_page_order": 98
}
