Outmezguine v. State

WILNER, Chief Judge. Appellant was convicted by a jury in the Circuit Court for Montgomery County of child pornography, for which he was sentenced to eight years in prison. He raises three issues on appeal: I. Whether the trial court erred in ruling that Md.Ann. Code, art. 27 § 419A(c) imposed strict liability and in therefore refusing to instruct the jury regarding a mens rea for that crime.

II

Whether the trial court erred in ruling that the exemptions of art. 27, § 423 did not apply to § 419A and in refusing to instruct the jury with regard to those exemptions.

III

Whether the trial judge improperly considered at sentencing a victim impact statement. Background The victim, Jennifer, was a troubled and vulnerable child. She had begun abusing alcohol when she was about nine and ¹⁵³ drugs when she was 14. In December, 1990, when she was 15 and a high school student, she was on cocaine and was sexually promiscuous.

According to Jennifer, appellant called her at home, told her that he knew her sister, and asked her to pose for him for $150. He said she would not have to pose in the nude. Jennifer agreed, and soon after, on December 21, 1990, he picked her up, stopped at a liquor store to get some wine coolers, and then took her to his house, where she drank some of the coolers. He gave her items of underwear and lingerie to wear, instructed her in various poses, and took a series of photographs that Jennifer identified in court.

Jennifer returned to pose twice more in January, 1991, once with a girlfriend. She said that she had various forms of sexual relations with appellant on a number of occasions, some at his home during a photo session, some in a car. Appellant had promised her money and drugs for the posing and the sex but provided neither. Jennifer’s mother had been concerned about the child for some time.

One day, she came across Jennifer’s diary, read it, and realized that prompt professional intervention was necessary. Jennifer was soon placed in an inpatient treatment program for drug and alcohol abuse. During a counselling session, she mentioned the episodes with appellant, and that led to the involvement of the police. A search warrant for appellant’s house was obtained, and, in the course of executing it, the police discovered cameras, lingerie, and a suitcase that appellant admitted belonged to him.

In the suitcase, among other things, were many photographs — some loose, some in an album — of Jennifer, which Jennifer testified appellant took at his home. In some of the pictures, Jennifer is touching her bare breast or buttocks. In one, she is spreading apart her vagina, which she claimed appellant instructed her to do. Appellant, who was about 25 at the time, said that he had been in the home improvement business but took pictures as a hobby.

Some of his photographic work involved taking pictures of female dancers. He claimed that he met Jennifer as ¹⁵⁴ she was hitchhiking, that he took her to work with him and then dropped her off near where he met her. A few days later, she called and arranged for her and her boyfriend, one R.C., to perform some additional work for appellant. During one of these trips, Jennifer noticed a photo album in appellant’s van and commented that she could pose as well.

On one later occasion, after completing a job, appellant, Jennifer, and Jennifer’s boyfriend R.C. repaired to appellant’s house where appellant allowed the boyfriend to use appellant’s camera and equipment to take pictures of Jennifer wearing appellant’s sister’s “clothing.” Appellant denied having taken any pictures of Jennifer; he also denied having had sexual relations with her. The jury did not believe him. Requirement of Mens Rea Appellant was prosecuted under Md.Code art. 27, § 419A(c). Section 419A is part of the subtitle of article 27 dealing generally with “Obscene Matter,” but it is not entirely an “obscenity” statute.

It deals with child pornography — the production and dissemination of material depicting children engaged in either “obscene” conduct or other defined sexual conduct that may, but need not, be legally “obscene.” For purposes of that section, “minor” is defined as “an individual under 18 years of age.” § 419A(a). The term “obscene” is not statutorily defined but partakes the definition Constitutionally allowable. See 400 E. Baltimore St. v. State, 49 Md.App. 147 , 431 A.2d 682 , cert, denied, 291 Md. 772 -74, 778, 780, 782 (1981), cert, denied, 455 U.S. 940 , 102 S.Ct. 1431 , 71 L.Ed.2d 650 (1982). “Sexual conduct” is defined in § 416A(d) as including “any touching of or contact with the genitals, pubic areas, or buttocks of the human male or female, or the breasts of the female.” Incorporating those definitions, § 419A proscribes three different forms of child pornography. Subsection (b) makes it unlawful for a person to solicit, cause, induce, or knowingly permit a minor to engage as a subject in the production of obscene matter or visual representation or performance that depicts a minor engaged as a subject in sexual conduct. ¹⁵⁵ Subsection (c), under which appellant was prosecuted, provides that “[e]very person who photographs or films a minor engaging in sexual conduct” is subject to criminal penalty.

Subsection (d) makes it unlawful for a person knowingly to promote, distribute, or possess with intent to distribute any matter or visual representation or performance that depicts a minor engaged as a subject in sexual conduct. As indicated, the word “knowingly” appears in subsections (b) and (d), but not in (c). No evidence was produced during the State’s case-in-chief as to whether appellant knew how old Jennifer was in 1990-91. At the conclusion of the State’s case, appellant moved for judgment of acquittal, arguing, in part, that, although § 419A(b) did not expressly require knowledge that the victim was a minor, the law implied such a requirement.

The State argued to the contrary — that, while the Legislature had required knowledge in other parts of the statute, it had not imposed that requirement with respect to subsection (c), and that the court ought not to do so. The court said that it was “going to adopt the argument taken by the State” and thus denied the motion. Appellant then testified, thereby effectively withdrawing his motion. Md.Rule 4-324(c).

In his case, appellant asserted that Jennifer had not told him that she was 15 and that he did not know she was 15. He did not say what he thought her age was or whether he knew or suspected that she was under 18. In rebuttal testimony, Jennifer stated that she had told appellant that she was 15 and what school she was attending. She made clear “he knew my age.” At the end of the case, appellant renewed his motion for acquittal for the reasons cited in his earlier motion.

The motion was summarily denied, without explanation. Appellee then submitted four proposed jury instructions dealing with the requirement of knowledge. The principal ones were that “[a]ll the acts described in this Section are made criminal only if they are committed knowingly” and that “knowledge must be proven by the State.” None of the proposed instructions ¹⁵⁶ indicated specifically that the defendant must know that the person being photographed or filmed was under 18; from the brief discussion on the motion for acquittal at the end of the State’s case, however, we assume that is what appellant had in mind. 1 The court denied those requests and essentially read § 419A(c) to the jury as it is written. Although the question of appellant’s state of knowledge as to Jennifer’s age was not argued to the jury by either side, the jury apparently had some concern about ij.

During deliberation, it sent out a note, which, despite the court’s direction that it be filed, we cannot find in the record. The only reference to it in the transcript is this statement from defense counsel: “There was a note that was delivered and the Court answered the note. Both answers were no in regards to whether the defendant need know about the child, whether the child be 18, and did he need to know. As I indicated, I thought that both answers should be answered yes. [The prosecutor] thought no.

Your Honor said no. I take exception to that note, okay, the answers to the note.” The deceptively simple question here is whether, to convict appellant under § 419A(c), the State must prove that he had knowledge that Jennifer was under 18 when the photographs were taken. The State says “no” because the statute does not require knowledge as an element. Its position is that the Legislature had the opportunity to add the requirement on several occasions, that it, in fact, added the requirement in other subsections of § 419A, and that the omission from subsection (c) was deliberate.

Appellant, relying principally on Dawkins v. State, 318 Md. 638 , 547 A.2d 1041 (1988), State v. McCallum, 321 Md. 451 , 583 A.2d 250 (1991), and New York ¹⁵⁷ v. Ferber, 458 U.S. 747 , 102 S.Ct. 3348 , 73 L.Ed.2d 1113 (1982), as well as some other out-of-State cases, urges that the requirement must be read into the statute despite its omission by the General Assembly. We agree with the State. Mr. Dawkins was convicted of possessing a controlled dangerous substance and controlled paraphernalia. Those items were found inside a tote bag that had been in his possession.

Dawkins claimed, and offered evidence to show, that the bag belonged to his girlfriend and that he was unaware of its contents. The issue was whether knowledge is an element of the possession offenses — whether the State had to prove that he had knowledge that the bag contained contraband items. The statutes, as written, did not make knowledge an element of the offense, and in an earlier case (Jenkins v. State, 215 Md. 70 , 137 A.2d 115 (1957)), the Court, construing a predecessor statute, had held that the defendant’s knowledge of the contents of a package in his possession was not an element of the offense. Distinguishing, and in effect overruling, Jenkins , the Court held that knowledge that the item possessed is contraband is an element of the offense.

In reaching that conclusion, the Court recounted that at common law a crime occurred only when, in addition to the criminal act, there was a “guilty state of mind.” 313 Md. at 643 , 547 A.2d 1041 . During the 19th century, it noted, legislatures began to enact “strict liability” offenses “designed to protect the public health and welfare.” Id. at 644, 547 A.2d 1041 . Those offenses initially involved the sale of alcohol or adulterated foods but later covered traffic regulations, the sale of misbranded articles, and trafficking in narcotics. They normally involved penalties so light that “the courts can afford to disregard the individual in protecting the social interest.” Id., quoting from Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55, 70 (1933).

Although the Maryland statute did not expressly contain the element of knowledge, the Court observed that the Uniform Controlled Substances Act, upon which the Maryland law was largely based, did contain that element, that comparable stat ¹⁵⁸ utes in most other States also contained it, and that, even where comparable statutes did not expressly contain the element, the courts had, “by judicial decision, determined that knowledge is an element of the crime of possession.” Id. 313 Md. at 646-47 , 547 A.2d 1041 . With this background, the Court noted that the Maryland statute proscribing the possession of controlled substances defined “possession” as the exercise of actual or constructive “dominion or control” over a thing, and concluded that “[knowledge of the presence of an object is normally a prerequisite to exercising dominion and control.” Id. at 648-49, 547 A.2d 1041 . A similar approach was taken with respect to the paraphernalia offense: possession is unlawful only if the person intends to use the item for the illegal administration of a controlled substance, and “[a]n individual can hardly intend to use an object in his possession if he is unaware that he possesses it.” Id. at 649, 547 A.2cl 1041. As a matter of statutory construction, therefore, the Court concluded that knowledge was an element of both offenses.

Jenkins was cast aside as involving a different statute enacted before the trend, embodied in the Model Penal Code, away from strict liability public welfare offenses. The issue in McCallum was whether mens rea was required for the offense of driving on a suspended license — whether the State had to show that the defendant was, or should have been, aware that his license had been suspended and whether the defendant was entitled to an instruction to that effect. We held that mens rea was an element (McCallum v. State, 81 Md.App. 403 , 567 A.2d 967 (1990)), and, in a per curiam Opinion, the Court of Appeals affirmed. The Court of Appeals used the analysis set forth in Dawkins to reach the conclusion that driving on a suspended license was not in the nature of a public welfare offense that could be based on strict liability.

In that regard, it held that, while many motor vehicle offenses are purely regulatory in ¹⁵⁹ nature, this one also had a punitive aspect to it, and, because it carried a possible jail sentence of up to two years for a repeat offender, “the Legislature did not intend this to be a ‘public welfare’ offense.” 321 Md. at 457 , 583 A.2d 250 (emphasis added). The “most important consideration” in the analysis, said the Court, quoting from Dawkins, was whether “ ‘regardless of the defendant’s state of mind, the defendant is generally in a position to prevent the violation from occurring.’ ” Id. at 457, 583 A.2d 250 . To that, the Court responded: “McCallum would have no reason to avoid driving and no reason to suspect that he was endangering the public by driving if he had no knowledge that his driving privileges were suspended.” Id. These cases, and those upon which the Court relied in them, are statutory construction cases: the issue was simply whether the Legislature, despite omitting to add the element of knowledge expressly, nevertheless intended to require it.

The Dawkins analysis and the experience in other States were used as aids in construing the statute. Appellant here posits as an additional consideration the need for precision in this offense because of its nexus to First Amendment concerns. It is in that context that he cites New York v. Ferber, supra, 458 U.S. 747 , 102 S.Ct. 3348 , where the Supreme Court upheld the constitutionality of a New York child pornography statute but noted in passing, at 765, 102 S.Ct. at 3358 , that “[a]s with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant.” Although States have long had laws prohibiting the display or distribution of various forms of “obscenity,” including specifically the distribution of obscene materials to minors and the employment of minors in the distribution of such material, it was not until the mid-1970’s that a need was perceived to focus more particularly on the use of children as the subjects of pornographic material. Citing the interstate nature of traffic in child pornography, “State and local officials called upon Congress to enact Federal criminal child protection ¹⁶⁰ laws.” H.R.Rep.

No. 98-586 (1984), accompanying P.L. 98-292, U.S.Code Cong. & Admin.News 1984, p 492. Congress responded initially in 1977 with the enactment of P.L. 95-225 — the Protection of Children Against Sexual Exploitation Act of 1977. In its Report accompanying that Act, the United States Senate found “a close connection between child pornography and the equally outrageous use of young children as prostitutes,” that the children recruited for this lucrative enterprise “are highly vulnerable children in the first place,” frequently the “victims of child abuse, or of broken homes, or of parents who simply do not care,” and that encounters of this kind “cannot help but have a deep psychological, humiliating impact on these youngsters and jeopardize the possibility of healthy, affectionate relationships in the future.” S.Rep. No. 95-438 (1977), U.S.Code Cong. & Admin.News 1978, pp. 40, 46.

The Senate lamented that only six States then had statutes proscribing the use of children in the production of pornographic material and that no Federal law then dealt directly with “the abuse of children that is inherent in the production of such materials.” The Act, passed by Congress in February, 1978, added §§ 2251-2253 to title 18 of the U.S.Code. Section 2251 punished the inducement or employment of minors — defined then as children under 16 — to engage in “sexually explicit conduct” for the purpose of producing for pecuniary profit any visual or print medium depicting such conduct. The term “sexually explicit conduct” was defined in § 2253 as sexual intercourse, bestiality, masturbation, sado-masochistic abuse, and lewd exhibition of the genitals or pubic area. Section 2252 prohibited the distribution of “obscene” visual or print medium depicting children engaging in such conduct.

The limitation of § 2252 to “obscene” material arose from Congressional concern at the time that proscriptions on the distribution of material could not Constitutionally extend beyond that which was legally obscene under prevailing standards. The actual offense enacted as § 2251 was as follows: “Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit ¹⁶¹ conduct for the purpose of producing any visual or print medium depicting such conduct, shall be punished as provided under subsection (c), if such person knows or has reason to know that such visual or print medium will be transported in interstate or foreign commerce or mailed, or if such visual or print medium has actually been transported in interstate or foreign commerce or mailed.” 2 It is evident at a glance that, while Congress required, as an element of the crime stated in § 2251, knowledge that the material would likely be mailed or distributed in interstate or foreign commerce, it did not require knowledge that the person photographed was a minor. Section 2252, on the other hand, did require that the distribution of such material, or the receipt of such material for distribution, be knowing. One had to “knowingly” transport or receive the material.

The omission of scienter as to the age of the child in § 2251 was deliberate. As pointed out in U.S. v. U.S. Dist. Court for Cent. Dist. of Cal, 858 F.2d 534 , 538 (9th Cir.1988), the original version of the bill would have made it unlawful for a person “knowingly” to employ, entice, or coerce a minor to engage in sexually explicit conduct for the purpose of producing or promoting a film or other print.

The Department of Justice urged deletion of “knowingly” to “avoid the