Moore v. State

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In the Circu it Court for S t. Mary s Co unty Criminal Action K04-68 IN THE COURT OF APPEALS OF MARYLAND No. 143 September Term, 2004 JONATHAN GEORGE MOORE v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Raker, J. Filed: August 11, 2005 The question we must decide in this case is whether a person who downlo ads onto a computer visual representations of a minor engaged in obscene acts or sexual conduct violates Md. Code (2 002, 200 4 Cum . Supp.), § 11 -207(a)(3) o f the Crim inal Law Article 1 proscribing the use [of] a comp uter to depict or describe a minor engaging in an obscene act, sadomasochistic abu se, 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 § 11-208(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 conduc t in violation of § 11-207 (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 v iolation of § 11-208(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: 1 Unless otherwise indicated, all future statutory references will be to Md. Code (2002, 2004 Cum. Supp.), Criminal Law Article. [O]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 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, D etective Hall read M r. Moore his Miranda rights. Mr. M oore acknowledged that he understood his rights and v oluntarily waiv ed those rights. The detective located a computer in the residence, which the defendant identified as being his computer. The defendant then volun tarily assisted the detectives in examining the computer. The defendant opened a file under My Do cuments nam ed Cuts , quote unquo te. The detective observed numero us photog raphic images in this file which included females who appeared to be under the age of 16. One file show ed a fem ale who ap peared 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, K-A-Z-Z-A, dot com. 2 Detectives then viewed the video file, and I will describe one of them, I think [defense cou nsel] and I agreed there are several others of this ilk, rather than go thro ugh them all. I will describe one of them. It was titled Four Y ear Old Refu sal Com e Shot. The three second v ideo show s an adult male ejaculating on the face and mou th 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 def endan t 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 photogra phs, some of whic h showed females who appeared to be un der age of 16 years old engaged in sexual intercourse and various sex acts. The computer and o ther described items w ere seized by the detectiv e. The computer case sent to the Computer Crimes Unit of the Maryland State Police Crime Lab where it was 3 examined by a compu ter 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 f rom a w eb 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 lo ading the c hild porno graphy from late 4 August of 2003 and that he used it for his own sexual gratification. The parties agreed to stipulate that the a finder of fact w ould 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 S aint Mary s Coun ty. Moore moved for a judgment of acquittal as to Count I, arguing that his conduct was not prohibited by § 11-207(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 5 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, § 11-207(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. 51 1, 869 A.2d 86 4 (2005). II. Under § 11-207(a )(3), a person may not use a compu ter to depict or describe a minor engaging in an ob scene a ct, sado masoc histic ab use, or s exual c onduc t . . . . To resolve the issue be fore us , we m ust interp ret the ph rase to use a co mpute r to dep ict or des cribe. Interpretation of a statute is a question of law, and, therefore, we review de novo the decision of the Cir cuit Court. See Collin s 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). In 2 Moore has not appealed his conv iction of possession of c hild pornography und er § 11-208. 6 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, w e give e ffect to the statu te as it is w ritten. Id. When there is more than one reasonab le 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 ambiguo us, we reso lve that amb iguity in light of the leg islative intent, considering the le gisla tive h istor y, case law, and sta tutory pur pose. See id. We consider not only the ordinary meaning of the words, but also how that language relates to the ove rall meaning, setting, and purpo se of th e act. See Dev ille 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 o f crimin al cond uct invo lved. Garglian o 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 Gw in 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 surplus age, sup erfluou s, mean ingless, o r nugat ory. Phillips, 384 Md. at 591, 865 A.2d at 594. 7 III. The federal gove rnment an d almost ev ery state in the cou ntry have ena cted laws related to child p ornog raphy. 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 p roscribing th e produc tion of or oth erwise co mbating c hild pornography ); Outm ezguin e v. State, 97 Md. A pp. 151, 162, 627 A .2d 541, 546 (199 3), aff d 335 Md. 20, 641 A.2d 870 (1994) (noting that by 1982, the federal government and forty-seven states had enacted statutes specifically addressing child pornography). The Supreme Court has recogn ized 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 e xtensively the d anger of c hild 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 porno graphic 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 en forceme nt may be to dry up the market for this 8 material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the pro duct. 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 testimo ny to support th ese legislative conclu sions. Id. at 759-60, 102 S.Ct. at 335 5-56 (footnotes om itted). In Maryland, two statutes target child pornography spec ifically. Section 11-207(a), provides as follows: (a) Prohibited. A p erson ma y not: (1) cause, indu ce, solicit, or kno wingly allow a m inor 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, sadom asochistic ab use, or sexu al conduc t; (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 com puter to knowingly compile, enter, transmit, make, prin t, publish, repro duce, cau se, allow, bu y, sell, receive, excha nge, or d issemin ate any no tice, statement, advertisem ent, 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 sadom asochi stic abu se or sex ual con duct of or with a mino r. 9 A violatio n of this section is a felo ny, and, upon conv iction, the def endant is su bject to imprisonment not exceeding ten years and a fine for the first offense, and imprisonment not exceeding twen ty years and a fine for each subseq uent violation. § 11-207(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 excitem ent. Violation of this section is a misdem eanor. § 11 -208(b). U pon con viction, the de fendant is subject to imprisonment not exceeding one year and a fine for the first offense, and impriso nmen t not exc eeding two year s and a f ine for e ach sub sequen t offen se. Id. Before this Court, M oore argu es that his conduct of downloading the prohibited materials on to his computer did not violate § 11-207(a)(3) because the statute criminalizes the creation of obscene materials using a computer, not mere pos session of s uch mate rials obtained through the use of a computer. Moore argues that the statute is ambiguous because the operative word depict is subject to two o r more r easona ble me anings . He concedes that one interpretation includes simply using a computer to download an image generated by someone else and po sted on the I nternet. He asserts, h oweve r, that use a co mputer to depict or describe also means to create the visual representation. Moore then argues that the legislative history indicates th at the Gen eral Assem bly did not intend to criminalize the 10 downloading and mere possession of child po rnograph y under § 11 -207, that having been covered by § 11-208 (a). The State argue s that the statute is unambig uous 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 a mbigu ous, 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 conduc t. IV. A. Section 11-207 does not define the phrase use a computer to depict or describe. As with all legislation in th is sensitive area that lies outside the protection of the First Amendment of the United States Constitution, the conduct to be prohibited must be defined adequate ly by the statu te, as wr itten or a uthorita tively con strued. 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 descr ibe. Depict is defined as either to form a likeness of by drawing or painting or to represent, po rtray, or delineate in other ways than in draw ing or painting. Web ster s 11 Third New International Dictionary 605 (1961) [h ereinafter W ebster s ]; see also K elly v. William Morrow & Co., 231 Cal. Rptr. 497, 500 (Cal. Ct. App. 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. Webs ter s, supra, at 610; see also Funk & W agnalls , supra, at 687 (defining describe as [t]o give the characteristics of, as in words or by signs, so that an other may form a m ental image or idea ). The definitions in dicate that the terms den ote creative a cts. Artists and artisans form a likeness by dra wing or p ainting they depict. Poe ts, narrators, and orators repre sent, portray, or delineate they depict and represent by words they describe. A person who photographs or films po rnograph ic images o f a child, w ho capture s such ima ges 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 natu re of this creative act differentiates it from the c reative 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 descr ibe. Download means to transfer or copy a file. See Darre l Ince, A Dictionary of 12 the Internet 98 (2001) (defining download as [t]he copying of a file or collection of files from one com puter to ano ther ); The Random House Dictionary of the English Language 590 (2d ed. 1987) (defining download as to transfer (software, data, ch aracter s ets, 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 11207(a)(3) states to use a compu ter to depict or describe, emplo ying 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. W illiams, Style: Ten Lessons in Clarity & Grace 43-44 (4th ed. 1994) (discussing nominalizations). The person who dow nloads 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 fro m know ingly 13 possessing a visual representation depicting an individu al under the age of 16 years (emphas is added). Section 11-208 prohibits the possession of an image that already has been depicted, or creat ed. Thu s, the poss essio n statute e mploys the nominalized, gerund form of the verb depict. See id. Simila rly, § 11-207 (a) uses the p assive form of depict in two other provisions. A person may not cause, induce, solicit, or knowingly allow a minor to en gage as a s ubject in the production of obsce ne matter o r a visual representation or performance that depicts a minor . . . . § 11-207(a)(1) (emphasis added). A person may not knowingly promote, distribute, or possess w ith the intent to d istribute any ma tter, visual representation, or performance that depicts a minor . . . . § 11-207(a)(4) (emphasis added). These two provisions do not con cern the cre ation of ch ild pornog raphy, but rathe r proscribe th e recruitment of children for such offensive material or the distribution of child pornography that has been created. A s such, the sta tute employs the passive voice to describe that which results from th e recrui tment a nd that w hich is d istributed . In contrast, § 11-207(a)(3) governs the creation of child pornography by computer and thus uses the active forms of depict and describe. The Illinois legislature has articulated this distinction between the verb depict and the nominaliz ations dep iction or d epicting. Illino is proscribes c hild porno graphy in 720 Ill. Comp. Stat. 5/11-20.1 (2005). The Illinois provisio n parallel to § 11-207(a)(2) and (3) defines ch ild pornography as when a person films, videotapes, photographs, or otherwise 14 depicts or portrays by means of any similar visual medium or rep roduction or depicts by computer any child . . . . 720 Ill. Com p. Stat. 5/11-2 0.1(a)(1) (em phasis added). That crime constitutes a Class 1 felon y. Id. at 5/11-20.1(c). The Illinois possession provision defines child pornography as when a person with knowledge of the nature or content thereof, possesses any film, videotape, photograp h or other similar visual reprodu ction or depiction by computer of any child . . . . Id. at 5/11-20.1(a)(6) (emphasis added). That crime constitutes a Class 3 felon y. Id. at 5/11-20.1(c). Thus, Illinois employs the verb depict for its version of § 11-207(a)(2) and (3) and the nominalization depiction for its version of § 11-208. In 5/11-20.1(f), Illinois defines these two terms as follows: (4) Depict by computer means to generate or create, or cause to be created or generated, a computer program or d ata that, after being pro cessed by a co mputer eith er alone or in conjunction with one or more computer programs, results in a visu al de picti on on a co mpu ter m onitor, sc reen , or displa y. (5) Depiction by computer means a computer program or data that, after being processed by a comp uter either alon e or in conjunction with one or more computer programs, results in a visual d epiction on a co mpute r monito r, screen , or displa y. Under these defin itions, a person who cre ates the com puter prog ram or data depicts by comp uter, and thus violates the Illino is versio n of § 1 1-207 (a)(3). A person who downloads a program possesses a depiction by computer, and thus violates the Illinois version of § 11208(a). The Illinois statute is instructive in that it illustrates that legislatures are aware of the distinctions between depict and depiction. 15 We conclude that the plain language of the statuto ry terms to depict or de scribe is unambiguous. The plain meaning of use a computer to depict or describe is to use a computer to create, not to use a comp uter to download. W e hold that a person who downloads visual representations of a minor engaged in obscene acts or sexual conduct does not violate the pro scription of § 11-207(a)(3) against us[ing] a computer to depict or describe a minor engaging in an ob scene a ct, sado masoc histic ab use, or s exual c onduc t. Accordingly, the Circuit Co urt erred in finding that M oore violated § 11-20 7(a)(3). B. Our conclu sion is b olstered by the leg islative h istory of § 11-20 7(a)(3) . In 1978, Congress passed Pub. L. No. 95-225, the Protection of Children Against Sexual Exploitation Act, 18 U.S.C. §§ 2251-2253. The federal law punished the inducement or employment of minors to engage in sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct if the visual or print medium was intended for interstate or foreign comm erce. Id.; see also Outmezguine, 97 Md. App. at 159-60, 627 A.2d at 545. The federal act represen ted a recog nition of the interstate natur e of the traff ic in child pornography and the failure of most states to ta rget chil d porn ograph y. See Outmezguine, 97 M d. App . at 160, 6 27 A.2 d at 545 . Three months after Congress passed the federal act, the Ma ryland Gen eral Assem bly enacted the first Maryland statute to address child po rnogra phy. See 1978 Md. Laws, Chap. 573. The Maryland statute was codified as Md. Code (1957, 1976 Repl. Vol., 1978 Cum. 16 Supp.), Art. 27, § 419A, and is found currently at § 11-207 of the Criminal Law Article. The statutory language and the legislative history of the initial Maryland child pornography statute sugge st that the Legisla ture wa s targetin g the ch ild porn ograph y industry, i.e., the creators and distributors of the material. The statute made it a felony to solicit, cause, induce, or knowingly permit a person under sixteen to engage as a subject in the production of obscene matter, or to photograph or film a person under sixteen eng aged in an obscene act. See 1978 M d. Laws , Chap. 57 3. The bill f ile contains a letter from an Assistant Attorney General describing the bill as legisla tion which is designed to prohibit the production and distribution of [child pornography] within the boundaries of this State . . . complement[ing] the federal bill. Additionally, a member of the National Conference of State Legislatures testified before a subcommittee of the House Judiciary Committee detailing the steps being taken by states across the country to criminalize and to prosecute those responsible for using children in obsc ene m aterials a nd sellin g them for pro fit. In New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982), the United States Sup reme Co urt reviewe d a New York ch ild pornography statute that prohibited material depicting sexual conduct by a child under sixteen, rather than merely obscene material. See id. at 750-51, 102 S.Ct. at 3351. The Court upheld the statute, holding that the First Amendment permits a state to proscribe the distribution of sexual materials involving minors withou t regard to an ob scenity sta ndard. See id. at 760-61, 102 S.Ct. at 3356-57. 17 Congress responded to Ferber by enacting P ub. L. 98-2 92, the Ch ild Protection Act of 1984, 1 8 U.S.C . §§ 225 1 to 225 4. See Outmezguine, 97 Md. App. at 164, 627 A.2d at 547. That law amended the 1977 law, inter alia, to include depictions of s exually explicit conduct that need not be lega lly obscene an d to redefin e minor to include children ages sixteen and sev enteen . See id. The Maryland Legislature responded to Ferber with a series of amen dments to A rt. 27, § 419A . See Outmezguine, 97 Md. App. at 164, 627 A.2d at 547. In 1985, the General Assemb ly increased the fine under the statute from $15,000 to $25,000 and expanded the reach of the statute beyond obscene matters to include the knowing promotion, distribution, or possession with the intent to distribute of any matter or other visual representation, which depicts a child engaged as a subject in sexual conduct. See 1985 M d. Law s, Chap . 494; Outmezguine, 97 Md. App. at 164-65, 627 A.2d at 547-48. As it had done with the promotion and distribu tion provisions in 1985, the Legislature subsequently expanded the reach of the provision outlawing the photographing or filming of children beyond obscene matter to specifically include children engaged in sexual conduct. See 1986 Md. Law s, Chap. 112; Outmezguine, 97 Md. App. at 165, 627 A .2d at 548. In 1989, the L egislature expanded each provision of the child pornography statute to include children ages sixteen and seventeen. See 1989 Md. La ws, Cha p. 398; Outmezguine, 97 Md. App. at 165, 627 A.2d at 548. 18 Simple possession of child pornography was not a crime in Maryland until 1992. In 1992, the Legislature enacted Md. Code (1957, 1992 Rep. Vol., 1992 Cum. Supp.), Art 27 § 419B, making it a misdemeanor to knowingly possess any film, videotape, photograph, or other visua l representatio n depicting [a minor] e ngaged a s a subject o f sadom asochistic abuse or in sexual conduct, or in a state of sexual excitem ent. See 1992 Md. Laws, Chap. 443. The crime was punishable by a fine or no t more than one year imprisonment, or both, for a first offense, and a fine or not more than two years imprisonment, or both, for a second or subs equen t offen se. Id. This section became § 11-208 of the Criminal Law Article. Until 1996, the proscriptions against child pornography in Maryland made no reference to the use of computers. The Legislature amended § 419A(c) to read as follows: Every person who photog raphs, f ilms, or by means of computer depicts or describes a minor engaging in an obscene act or engaging in sexual co nduct or sa domaso chistic abuse is guilty of a felony. 1996 M d. Laws, Chap . 443 (emphasis add ed). 3 3 The Legislature also amen ded M d. Code (1 957, 199 6 Repl. Vol.), Art. 27 § 419 A to add a section proscribing the compilation and transmission of data about minors for the purpose of inducing children to engage in unlawful sexual conduct or sadomasochistic abuse. See 1996 Md. Laws, Chap. 443; Md. Code (1957, 1996 Repl. Vol.), Art. 27 § 419A(e). That provision is now § 1 1-207(a)(5). The Legislature did not need to specify computers in the provision prohibiting the distribution of child pornography, because Md. Code (1957, 1996 Repl. Vol.), Art. 27 § 419A(d), now § 11-207(a )(4), proscribe d the prom otion, distributio n, or posses sion with intent to distribute of any matter or other visual representation or performance. That provision includes computers. 19 The Legislature included the words or describe in the 199 6 amendm ent to ensure that the provision included pornographic texts.4 During the 1995 legislative session, the session before the Legislature passed the amendment adding computers, the Senate passed Senate Bill 22. Senate Bill 22 added nearly identical language as was added in the 1996 session, except that Senate Bill 22 added depict, not depict or describe. See Bill Analysis in the bill file fo r Senate B ill 133. Sena te Bill 22 received an un favorable report from th e Hou se Judic iary Com mittee. Id. The bill passed in the 1996 sess ion originally did not inclu de the w ords o r describ e. The bill file contains a September 4, 2005 draft of Senate Bill 133, which indicates that the bill originally was identical to Senate Bill 22. The drafter added by hand the words or describ e. This addition apparently stemmed from comments made by a reviewer written on the Session of 1996 L[egislative] R[eference] Request Form. On September 6, the reviewer noted as follow s: Does (c ) apply only to visual depiction (i.e. picture) or co uld it also be text that is pornographic (i.e. a story). I think you may want to clarify it. The Request Form indicates that the drafter noted this suggestion on September 25. The September 28 draft of the bill include d this new language . The Sen ate adopted the bill in its revised form, and the House adopte d the ch ange f ollowi ng the C onfere nce C omm ittee. See Conference Committee Report. 4 The constitutionality of the proscription of computer writings containing child pornography is not at issue in this case. 20 In 2002, as a result of the Code Revision, Art. 27, § 419A(b) through (g) was repealed and reenacted as § 11-207 of the Criminal Law Article and Art. 27, § 419B was repealed and reenacted as § 11-208.5 The relevant provision of § 11-207 contained two changes from § 419A. First, § 419A(c) was divided into two sections photograph and film and use a compute r to de pict o r des cribe w ere s epar ated into § 11-207 (a)(2 ) and (3) re spec tivel y. Second, the term by means of a computer was replaced with the ter m use a com puter. 5 Section 11-208 does not specify computers, but instead encompasses com puters within the term other visual representation. See Ru tledge v . State, 745 So.2d 912, 917 (Ala. Crim. App. 1999) (construing a child pornography statute prohibiting possession of a photographic or other visual reproduction to include images stored on computers, computer disks, and the Inte rnet); State v. Cohen, 696 So.2d 435, 438 (Fla. Dist. Ct. App. 1997) (stating that the fact [t]hat pornographic images of children are scanned into a computer rather than pressed onto the pages of a magazine, or that the images are stored on a hard drive rather than in a shoebox , does not ch ange the f act that a def endant po ssesses por nograph ic representations of actual childre n ); Perry v. Commonwealth, 780 N.E.2d 53, 55 (Mass. 2002) (concluding that the legislature s use of the broad te rm visua l material in its c hild pornography statute was intended to encompass computer images and asserting tha t [i]t matters not that the sc ene is captu red in bytes rathe r than on co nventiona l film ); State v. Howe ll, 609 S.E.2d 417, 421 (N.C. Ct. App. 2005) (holding that the d efendant s opening and saving of computer images of child pornography constituted criminal possession of those images). Section 11-208 applies to unopened computer files containing visual representations of child pornography notwithstanding the fact that computer hardware and software may be requ ired to render the ima ge visib le. See 18 U.S.C. § 2256 (2005) (defining visual depiction to include undeveloped film and videotape, and data stored on computer disk or by electronic means w hich is capa ble of conversion into a v isual image ); Perry, 780 N.E.2d at 56 (reasoning that any distinction based on how the pornographic images are stored or commu nicated is im material giv en the harm the statute was enacted to a ddress); Comm onwea lth v. Hinds, 768 N.E.2d 1067, 1074 (Mass. 2002) (interpreting prohibited possession of a dep iction by com puter of c hild porno graphy to include not only computer files that are disseminated or reduced to hard co pies, but also unopened files on a hard drive); People v. Fraser, 704 N.Y.S.2d 426, 429-30 (N.Y. A pp. Div. 20 00) (findin g that graph ic images stored on the defendant s computer fell within the statutory prohibition against possessing photogra phs of ch ild pornog raphy despite th e fact that a computer graphic image is visible to the unaided eye only when processed through a computer). 21 See 2002 M d. Law s, Chap . 26. As pointed out by the Revisor s Note, § 11-207 was derived from A rt 27, § 4 19A w ithout su bstantiv e chan ge. Id. Our review of the legislative history of § 11-207 supports our conclusion that use a computer to depict or describe means to use a computer to create. First, the inclusion of or describes in § 11-207(a)(3) indicates that the Legislature did not inten d for the pr ovision to include the dow nloading o f files. It is clear tha t the recipient of a text file does not describe the subject matter of the text when the recipient downloads the file. Instead, the author describes the subject matter by writing the text, and the recipient copies and transfers the description onto the computer screen or drive. For example, a person who downloads a poem has not described a rose the poet described the rose when writing the poem. The act of downloading a picture is more confusing because it involves an image within an image the picture itself and the projection of the image onto the computer screen. The photographer depicts a subject by creating an image the photograph. The recipient does not depict the su bject of the p icture, but rather copies or transfers the photograph onto the computer screen or drive. A person who downloads a picture of a rose does not depict the rose the photographer depicts the rose when taking the picture. The inclusion of or describe thus elucidates the meaning of depict and further indicates that § 11-207(a)(3) does not proscribe the act of downloading files. Second, as we have noted, the Leg islature did not intend to change the substance of the statute when it bifurcated the following provision from the 1996 amen ded statute: Every 22 person who photographs, films, or by means of computer depicts or describes a minor engaging in an obscene act or engaging in sexual conduct or sadomasochistic abuse . . . is subject to [a penalty]. Md. C ode (195 7, 1996 R epl. Vol.), A rt. 27, § 419A (c) (emph asis added). The terms photographs and films are verbs describing creative acts a person takes a photograph or makes a film. Unfortunately, there is no equivalent verb for the creative act of depicting or describing by computer a person cannot computer a computer. For that reason, the Legislature was compelled to add the long phrase or by means of computer depicts or describes, despite the fact that the wording does not parallel the structur e of w ho pho tograp hs, film s. The original placement of the phrase by means of computers depicts or describes at the end of a list that included the creative verbs photographs and films indicates that the Legislature intended the phrase to mean to create by means of computers. A su mmary of the propo sed amen dment co ntained in th e bill file supp orts this conc lusion. A Bill Analysis to Senate Bill 133 described the amendment as an expansion of the provision relating to photog raphy and film making. T he Bill A nalysis summarized the bill as follows: The bill expands a current ch ild pornog raphy law rela ting to certain types of photographs and film to make it a pplicable to computer generated images and descriptions of minors engaging in obscene acts or sexual conduct. Specifically, the bill makes it a felony to depict or describe, by means of a computer, a minor en gaged in an obscene act or sexual condu ct. (Em phasis a dded.) 23 Thus, the 1996 addition of the computer-related language with filming and photography reasonab ly can be understood as a recognition by the Legislature that the computer was a new tech nolo gy wh ich c ould be used to cre ate c hild porn ogra phy. 6 6 The New Jersey Supreme Court employed similar reasoning in State v. Sisler, 827 A.2d 274 (2003). Sisler was arrested for printing child pornography from a computer and charged with the violation of a statute similar to § 1 1-207(a)(2) and (3 ). The New Jersey provision provides as follows: Any person who photographs or films a child in a prohibited sexual act or in the simulation of such an act or who uses any device, including a comp uter, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of suc h an ac t is guilty of a crime of the s econd degree . N.J. Stat. Ann. § 2C:24-4b(4) (West 1995, 2005 C um. Supp.). As in Maryland, the clause specifying computers was added as an am endm ent to the statute. See Sisler, 827 A.2d at 277. The New Jersey Supreme Court relied on the juxtaposition of who uses any device, including a computer, to reproduce or reconstruct with who photograp hs or films to conclude that reproduce or reconstruct means to create. The court stated as follows: The disputed language, fairly read, merely describes the computer-generation or other technological process that creates the prohibited image that the original creator or that another person, in turn, disseminates, possesses, or simply views. Stated diff eren tly, we consider the word reproduce alongside the second-degree offenses to which it is held equivalent, including photograph[ing] or film[ing] a child in a prohibited sexual act[.] The Legislature coupled the offenses of photographing and reproducing, indicating that they are of com parable gravity and worthy of identical punishment. The term reproduce thereby ta kes on a com parable mean ing. Id. at 278. The court then held that Sisler s cond uct did not fit w ithin the statute. See id. at 280. 24 JUDGMENT OF TH E CIRCUIT COURT FOR ST. MARY S COUNTY, AS TO THE CONV ICTIO N UNDER § 11-207, REVERSED. CASE REMANDED TO THAT COURT FOR SENTENCING UNDER § 11208. COSTS TO BE PAID BY ST. MARY S COUNTY. 25

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