Moore v. State

RAKER, J. The question we must decide in this case is whether a person who downloads onto a computer visual representations of a minor engaged in obscene acts or sexual conduct violates Md.Code (2002, 2004 Cum.Supp.), § ll-207(a)(3) of the Criminal Law Article 1 proscribing the “use [ofj a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct.” We shall answer that question in the negative and reverse. I. Moore was indicted by the Grand Jury for St. Mary’s County in a two count indictment, alleging violations of § 11— 207(a)(3) and § ll-208(a) respectively. Count I alleged that Moore had “us[ed] a computer to depict and describe a minor engaging in an obscene act, sadomasochistic abuse, and sexual conduct” in violation of § ll-207(a)(3). Count II alleged that Moore “knowing[ly] possess[ed] a film, videotape, photograph, and other visual representation depicting an individual under the age of 16 years .. . engaged in sexual conduct” in violation of § ll-208(a).

Before the Circuit Court on June 21, 2004, Moore entered a plea of not guilty and proceeded on an agreed statement of facts. The State read the following agreed statement of facts into the record: “[0]n or about October 7, 2003 a search and seizure warrant was served on the defendant’s residence located at apartment 1012 Valley Court, Lexington Park, Saint Mary’s ⁴⁵⁰ County. The defendant, Jonathan G. Moore, was present when the warrant was served. He would be identified as the gentleman on my left.

Upon entering the home, Detective Hall read Mr. Moore his Miranda rights. Mr. Moore acknowledged that he understood his rights and voluntarily waived those rights. The detective located a computer in the residence, which the defendant identified as being his computer. The defendant then voluntarily assisted the detectives in examining the computer.

The defendant opened a file under My Documents named ‘Cuts’, quote unquote. The detective observed numerous photographic images in this file which included females who appeared to be under the age of 16. One file showed a female who appeared to be approximately three to five years old being penetrated in her vagina by a penis from an adult male. The defendant then opened the Windows Media Player on his computer, which listed numerous video files.

He stated he knowingly down loaded from a web site named Kazza, KA-Z-Z-A, dot com. Detectives then viewed the video file, and I will describe one of them, I think [defense counsel] and I agreed there are several others of this ilk, rather than go through them all. I will describe one of them. It was titled ‘Four Year Old Refusal Come Shot.’ The three second video shows an adult male ejaculating on the face and mouth of a nude white female who appears to be three to four years old. “A further search of the residence revealed computer printouts near the defendant’s bed.

Many of the images on the printouts were females who appeared to be under the age of 16 and engaged in sexual intercourse and various sex acts. “The defendant stated he printed those pictures from various web sites. A green, unlabeled floppy disc was also recovered from the home. The disc contained a file named ‘cuts.’ Inside the file were 11 photographs, some of which showed females who appeared to be under age of 16 years old engaged in sexual intercourse and various sex acts. ⁴⁵¹ “The computer and other described items were seized by the detective. The computer case sent to the Computer Crimes Unit of the Maryland State Police Crime Lab where it was examined by a computer technician.

An examination of the defendant’s computer revealed it had two hard drives. An examination of the first hard drive revealed the following, 47 images of individuals who appeared to be under the age of 16 engaged in sexual intercourse and various sex acts, 32 images of individuals who appeared to be under the age of 16 in various stages of undress. “Examination of the second hard drive revealed the following, 28 images of individuals who appeared to be under the age of 16 engaged in sexual intercourse and various sex acts, 13 images of individuals who appeared to be under the age of 16 and in various stages of undress, 11 video clips showing individuals who appeared to be under the age of 16 and engaged in intercourse and various sex acts. “The defendant was interviewed at his house himself and gave a voluntary statement to the detectives. He stated that he downloaded the material from a web site named Kazza dot com, he stated he had not distributed the material to anyone nor has he engaged in making any pictures from the videos himself. He stated he began down loading the child pornography from late August of 2003 and that he used it for his own sexual gratification.

The parties agreed to stipulate that the — a finder of fact would determine the age of all of the individuals on the pictures and videos and were engaged in sexual intercourse and sexual acts would be under 16 years old. “The State is not alleging the defendant was involved in the taking — in the taking of the pictures or videos recovered. The State is not alleging the defendant distributed any of the recovered images or videos or that the defendant did possess them with the intent to distribute them. “The computer which contained the aforementioned images or photos and images were recovered from the defendant’s residence which was located in Saint Mary’s County.” ⁴⁵² Moore moved for a judgment of acquittal as to Count I, arguing that his conduct was not prohibited by § ll-207(a)(3). The court denied the motion and found Moore guilty of both counts in the indictment. The court reasoned that the ordinary, plain meaning of the statutory language proscribed the conduct at issue and that Moore’s acts fell within the intended scope of the statute.

The court merged the two counts for sentencing purposes and sentenced Moore to a term of three years incarceration on Count I, with all but nine months suspended. 2 Moore noted a timely appeal to the Court of Special Appeals. Before that court considered the case, we granted certiorari on our own initiative to consider the following question: “Does a person who downloads visual representations of a minor engaged in obscene acts or sexual conduct from a computer violate Md. Crim Law, § ll-207(a)(3)’s proscription against ‘us[ing] a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse or sexual conduct?’ ” 385 Md. 511 , 869 A.2d 864 (2005).

II

Under § ll-207(a)(3), a person may not “use a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct....” To resolve the issue before us, we must interpret the phrase “to use a computer to depict or describe.” Interpretation of a statute is a question of law, and, therefore, we review de novo the decision of the Circuit Court. See Collins v. State, 383 Md. 684, 688 , 861 A.2d 727, 730 (2004). The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature. Piper Rudnick v. Hartz, 386 Md. 201, 218 , 872 A.2d 58, 68 (2005). ⁴⁵³ In ascertaining legislative intent, we first examine the plain language of the statute, and if the plain language of the statute is unambiguous and consistent with the apparent purpose of the statute, we give effect to the statute as it is written.

Id. When there is more than one reasonable interpretation of a statute, the statute is ambiguous. Comptroller v. Phillips, 384 Md. 583, 591 , 865 A.2d 590, 594 (2005). If the statutory language is ambiguous, we resolve that ambiguity in light of the legislative intent, considering the legislative history, case law, and statutory purpose.

See id. We consider not only the ordinary meaning of the words, but also how that language relates to the overall meaning, setting, and purpose of the act. See Deville v. State, 383 Md. 217, 223 , 858 A.2d 484, 487 (2004). We take into account the history of the statute, the evils or mischief the Legislature sought to remedy, and the “prevailing mood of the legislative body with respect to the type of criminal conduct involved.” Gargliano v. State, 334 Md. 428, 436 , 639 A.2d 675, 678 (1994) (quoting Randall Book Corp. v. State, 316 Md. 315, 327 , 558 A.2d 715, 721 (1989)).

We seek to avoid construction of a statute that is unreasonable, illogical, or inconsistent with common sense. See Gwin v. MVA, 385 Md. 440, 462 , 869 A.2d 822, 835 (2005). We construe a statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory. Phillips, 384 Md. at 591 , 865 A.2d at 594 .

III

The federal government and almost every state in the country have enacted laws related to child pornography. See New York v. Ferber, 458 U.S. 747, 758 , 102 S.Ct. 3348, 3355 , 73 L.Ed.2d 1113 (1982) (stating that “virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating ‘child pornography’ ”); Outmezguine v. State, 97 Md.App. 151, 162 , 627 A.2d 541, 546 (1993), aff'd, 335 Md. 20 , 641 A.2d 870 (1994) (noting that by ⁴⁵⁴ 1982, the federal government and forty-seven states had enacted statutes specifically addressing child pornography). The Supreme Court has recognized that “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Ferber, 458 U.S. at 757 , 102 S.Ct. at 3355 . In Ferber , the Court discussed extensively the danger of child pornography and the detrimental effect it has on children.

The Court stated as follows: “The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies.

While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Thirty-five States and Congress have concluded that restraints on the distribution of pornographic materials are required in order to effectively combat the problem, and there is a body of literature and testimony to support these legislative conclusions.” Id. at 759-60 , 102 S.Ct. at 3355-56 (footnotes omitted). In Maryland, two statutes target child pornography specifically.

Section ll-207(a), provides as follows: “(a) Prohibited — A. person may not: ⁴⁵⁵ “(1) cause, induce, solicit, or knowingly allow a minor to engage as a subject in the production of obscene matter or a visual representation or performance that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct; “(2) photograph or film a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct; “(3) use a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct; “(4) knowingly promote, distribute, or possess with the intent to distribute any matter, visual representation, or performance that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct; or “(5) use a computer to knowingly compile, enter, transmit, make, print, publish, reproduce, cause, allow, buy, sell, receive, exchange, or disseminate any notice, statement, advertisement, or minor’s name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for the purpose of engaging in, facilitating, encouraging, offering, or soliciting unlawful sadomasochistic abuse or sexual conduct of or with a minor.” A violation of this section is a felony, and, upon conviction, the defendant is subject to imprisonment not exceeding ten years and a fine for the first offense, and imprisonment not exceeding twenty years and a fine for each subsequent violation. § ll-207(b). Possession of child pornography is prohibited by § 11-208(a), which provides as follows: “(a) Prohibited. — A person may not knowingly possess a film, videotape, photograph, or other visual representation depicting an individual under the age of 16 years: “(1) engaged as a subject of sadomasochistic abuse; “(2) engaged in sexual conduct; or “(3) in a state of sexual excitement.” ⁴⁵⁶ Violation of this section is a misdemeanor. § 11 — 208(b). Upon conviction, the defendant is subject to imprisonment not exceeding one year and a fíne for the first offense, and imprisonment not exceeding two years and a fine for each subsequent offense. Id.

Before this Court, Moore argues that his conduct of downloading the prohibited materials onto his computer did not violate § 11 — 207(a)(3) because the statute criminalizes the creation of obscene materials using a computer, not mere possession of such materials obtained through the use of a computer. Moore argues that the statute is ambiguous because the operative word “depict” is subject to two or more reasonable meanings. He concedes that one interpretation includes simply using a computer to download an image generated by someone else and posted on the Internet. He asserts, however, that “use a computer to depict or describe” also means to create the visual representation.

Moore then argues that the legislative history indicates that the General Assembly did not intend to criminalize the downloading and mere possession of child pornography under § 11-207, that having been covered by § ll-208(a). The State argues that the statute is unambiguous and that there is no need to consider legislative intent in enacting the statute. The State maintains that the plain language of the statute proscribes the use of a computer to download child pornographic images. Even if the statute were ambiguous, the State contends that the legislative history indicates that the Legislature intended the scope of § 11-207 to be expansive, thus separately criminalizing Moore’s conduct.

IV

A. Section 11-207 does not define the phrase “use a computer to depict or describe.” As with all legislation in this sensitive area that lies outside the protection of the First Amendment of the United States Constitution, the conduct to be prohibited must be defined adequately by the statute, as ⁴⁵⁷ wiitten or authoritatively construed. See Ferber, 458 U.S. at 764 , 102 S.Ct. at 3358 . Moore’s interpretation of the statutory phrase “use a computer to depict or describe” as “use a computer to create” is consistent with the ordinary usage of “depict” and “describe.” “Depict” is defined as either “to form a likeness of by drawing or painting” or “to represent, portray, or delineate in other ways than in drawing or painting.” Webster’s Third New International Dictionary 605 (1961) [hereinafter “Webster’s’]; see also Kelly v. William Morrow & Co., 186 Cal.App.3d 1625 , 231 Cal.Rptr. 497, 500 (1986) (quoting Webster’s); Funk & Wagnalls New Standard Dictionary of the English Language 683 (1952) [hereinafter “Funk & Wagnalls”] (defining “depict” as “[t]o portray or picture, as in words; describe or represent vividly” and “to portray or paint in colors”). “Describe” means “to represent by words written or spoken for the knowledge or understanding of others.” Webster’s, supra, at 610; see also Funk & Wagnalls, supra, at 687 (defining “describe” as “[t]o give the characteristics of, as in words or by signs, so that another may form a mental image or idea”). The definitions indicate that the terms denote creative acts.

Artists and artisans form a likeness by drawing or painting'— they depict. Poets, narrators, and orators represent, portray, or delineate — they depict — and represent by words — they describe. A person who photographs or films pornographic images of a child, who captures such images directly into a computer by means of a digital camera or who first translates a motion picture or photograph of such images into a computer file is engaged in a creative act even though the perverse, heinous, and cruel nature of this creative act differentiates it from the creative acts that society values and tolerates. To the contrary, the State’s interpretation of “use a computer to depict or describe” as “use a computer to download” does not accord with the ordinary usages of depict and describe.

The definition of “download” is different than the definitions of “depict” and “describe.” “Download” means to transfer or copy a file. See Darrel Ince, A Dictionary of the Internet 98 ⁴⁵⁸ (2001) (defining “download” as “[t]he copying of a file or collection of files from one computer to another”); The Random House Dictionary of the English Language 590 (2d ed.1987) (defining “download” as “to transfer (software, data, character sets, etc.) from a distant to a nearby computer, from a larger to a smaller computer, or from a computer to a peripheral device”). The definition of “download” makes clear that to download is a different act than to depict and describe. The person who captures an image directly into a computer by means of a digital camera or who first converts the motion picture or photograph into a computer file has depicted that image.

The person who downloads that image merely has copied and saved the file — i.e. has taken possession of the file. The grammatical form of “depict or describe” further evidences that the meaning of the statute is to use a computer to create, not to use a computer to download. Section 11-207(a)(3) states “to use a computer to depict or describe,” employing the verb forms of “depict” and “describe.” Moore’s interpretation of “depict or describe” as “to create” conforms with the verb forms of the terms. The State’s interpretation conforms with the use of depict or describe either in the passive form, such as “that depict” or “that describe,” or in the nominalized form (i.e. as abstract nouns), such as “depiction” or “description.” See Joseph M. Williams, Style: Ten Lessons in Clarity & Grace 43-44 (4th ed.1994) (discussing nominalizations).

The person who downloads a picture transfers and copies a depiction or a file that depicts — the image already has been depicted when the person downloads it. The act of downloading is covered by § 11-208, which prohibits a person from knowingly possessing a “visual representation depicting an individual under the age of 16 years” (emphasis added). Section 11-208 prohibits the possession of an image that already has been depicted, or created. Thus, the possession statute employs the nominalized, gerund form of the verb depict.

See id. Similarly, § ll-207(a) uses the passive form of depict in two other provisions. A person may not “cause, induce, solicit, or knowingly allow a minor to engage as a subject in the produc ⁴⁵⁹ tion of obscene matter or a visual representation or performance that depicts a minor ....“ § ll-207(a)(l) (emphasis added). A person may not “knowingly promote, distribute, or possess with the intent to distribute any matter, visual representation, or performance that depicts a minor ....“ § 11-207(a)(4) (emphasis added).

These two provisions do not concern