After a jury convicted Paul Windsor of “five counts of
sexual exploitation of a minor in violation of Arizona Revised Statutes §13–3553(A)(1)” and the judge sentenced him “to mitigated, consecutive sentences
totaling fifty years' imprisonment”, he appealed. State
v. Windsor, 224 Ariz. 103227 P.3d 864 (Court of Appeals of Arizona 2014). The Court of Appeals began by explaining that,
in reviewing a conviction, it
view[s] the facts in the light most
favorable to sustaining the jury's verdicts. State v. Huffman, 222
Ariz. 416, 215 P.3d 390 (Arizona Court
of Appeals 2009). One morning in January 2006, staff at a public computer
facility located in a University of Arizona library received more than fifty,
automatically generated, virus-alert messages from one of the facility's
computers over the course of several minutes.
After a staff member remotely rebooted
that computer, another computer began sending similar virus-notification
messages. The staff member remotely viewed its screen and saw `sexually
suggestive’ pictures of children. He then rebooted the computer, `hoping that
the [user] would leave.
When the second computer continued to
send the virus-alert messages, staff members once again remotely accessed its
screen and observed that the user was opening the images in a graphics program.
A staff member called university police officers, who arrived and found Windsor
sitting at the computer with pornographic photographs of children on the
screen. Subsequent forensic analysis revealed Windsor had downloaded
the images from a remote Internet site and saved them in a shared file on the
computer's hard drive. He was later indicted, arrested, and convicted as
outlined above.
State v. Windsor,
supra.
The court went on to explain that the
sole issue on appeal is whether
Windsor's conviction was supported by sufficient evidence. We will not
reverse a conviction unless the state has failed to present substantial
evidence of guilt. Substantial evidence is `more than a mere scintilla’ and is
proof that reasonable persons could accept as convincing beyond a reasonable
doubt. State v. Nunez, 167 Ariz. 272, 806 P.2d 861 (ArizonaSupreme Court 1991).
State v. Windsor,
supra.
The Court of Appeals then began its analysis of the legal
issue in this case, noting that
[t]he statute Windsor was convicted of
violating, § 13–3553(A)(1), prohibits `[r]ecording, filming,
photographing, developing or duplicating any visual depiction in which a minor
is engaged in exploitive exhibition or other sexual conduct.’ Windsor does not
dispute that the images he accessed were child pornography, but rather contends
that his downloading these images did not amount to `[r]ecording, filming,
photographing, developing, or duplicating’ them. In our recent opinion, State
v. Paredes–Solano, 223 Ariz. 284, 222 P.3d 900 (Arizona Court of
Appeals 2009), this court recognized that § 13–3553(A)(1), under which
Windsor was charged, and § 13–3553(A)(2), which prohibits `[d]istributing,
transporting, exhibiting, receiving, selling, purchasing, electronically
transmitting, possessing, or exchanging,’ were intended to punish different
kinds of harm.
Relying on State v. Paredes–Solano,
Windsor argues the state was required to prove he committed the distinct crime
outlined in the subsection under which he was charged. We
agree. See State v. Paredes–Solano, supra (reversing
conviction where duplicitous indictment did not require unanimous verdict
distinguishing between § 13–3553(A)(1) and (A)(2)).
State v. Windsor,
supra.
It found, therefore, that Windsor's
convictions cannot
be sustained unless the state presented sufficient evidence Windsor engaged in
one of the activities proscribed in § 13–3553(A)(1).
Because it is undisputed Windsor did
not record, film, photograph, or develop any image, the validity of his
conviction turns on whether downloading pictures from a remote Internet site
constitutes `duplicati[on]’ for the purposes of this statute. When called upon
to interpret a statute, we consider its plain language, giving meaning to each
word and phrase `”so that no part is rendered void, superfluous, contradictory
or insignificant.”’ State v. Larson, 222 Ariz. 341, 214 P.3d
429 (Arizona Court of Appeals 2009), quoting Pinal Vista Props., L.L.C.
v. Turnbull, 208 Ariz. 188, 91 P.3d 1031 (Arizona Court of Appeals 2004).
State v. Windsor,
supra.
The Court of Appeals then noted that, at Windsor’s trial,
the prosecution’s
computer expert testified that
downloading involves using the Internet to copy a file from a remote computer,
a description consistent with the way courts have construed the term. See,
e.g., Metro–Goldwyn–Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (downloaded files copied from servers or directly from
peer-to-peer network); U.S. v. Sullivan, 451 F.3d 884 (U.S. Court of Appeals for the D.C. Circuit 2006) (`every time one user downloads an image,
he simultaneously produces a duplicate version of that image’); Salter
v. State, 906 N.E.2d 212 (Indiana Court of Appeals 2009) (downloading picture
means `saving a copy of the image’); Moore v. State, 388 Md.
446, 879 A.2d 1111 (Maryland Court of Appeals 2005) (download `means to
transfer or copy a file’); People v. Hill, 269 Mich. App. 505,
715 N.W.2d 301 (Michigan Court of Appeals 2006) (downloaded material
copied from websites).
State v. Windsor,
supra.
The court went on to explain that
[a]s Windsor points out, the word
`duplicate’ is not defined in the criminal code. The general dictionary definition
of that word, however, is `to make an exact copy of.’ Webster's Ninth New
Collegiate Dictionary 389 (1991); accord The American Heritage Dictionary
430 (2d college ed.1982) (`[t]o make an identical copy of’); see State
v. Bews,177 Ariz. 334, 868 P.2d 347 (Arizona Court of Appeals 1993) (`widely
respected dictionary’ useful when statutory term not defined in statute and `no
indication it [was] to be given an unusual meaning’).
Based solely on the plain meanings of
the terms `download’ and `duplicate,’ it would appear that one who downloads an
image from a remote computer or computer server has duplicated it for the
purposes of § 13–3553(A)(1).
State v. Windsor,
supra.
Windsor, however, “dispute[d]” this interpretation of the
statute. State v. Windsor, supra. Relying on
State v. Paredes–Solano, supra, he
argues that because `duplicating’ is used in § 13–3553(A)(1), it must
refer to the `creation or production of a new image,’ and the act of
downloading is more analogous to the receipt or distribution of an existing
image described in § 13–3553(A)(2) than to the creation of a new one.
But he does not explain how creating an electronic copy of an image is so
significantly different from making any other type of duplicate that it should
be treated differently under the law.
Moreover, our generalized statement of the
statute's purposes in State v. Paredes–Solano, supra, does not
alter the plain language of the statute and cannot serve to narrow its
application. See State v. Peek, 219 Ariz. 182, 195 P.3d
641 (Arizona Supreme Court en banc, 2008) (rejecting
argument based on case law requiring interpretation contrary to statute's plain
language).
State v. Windsor,
supra.
The Court of Appeals then explained that Windsor also cited
Oregon and Washington statutes similar
to § 13–3553(A) and out-of-state cases in which courts upheld the
convictions of defendants who had reproduced pornographic images. It appears
his intent is to show that other states do not regard the act of downloading an
image as `duplicati[on]’ for the purposes of their respective
statutes. But none of the decisions he cites stand for this proposition or
even include discussion of this issue.
State v. Dimock, 174 Or.
App. 500, 27 P.3d 1048 (Oregon Court of Appeals 2001), involved a defendant who
undisputedly used electronic mail (e-mail) to transmit pornographic
images. State v. Knutson, 64 Wash. App. 76, 823 P.2d 513 (Washington Court of Appeals 1991), did not involve computers at all, but rather
photographs the defendant had enlarged and reproduced. And the defendants
in State v. Betnar, 214 Or.App. 416, 166 P.3d 554 (Oregon
Court of Appeals 2007), and People v. Hill, 269 Mich. App.
505, 715 N.W.2d 301 (Michigan Court of Appeals 2006), had duplicated images by
placing them on compact discs. That other courts have sustained convictions for
acts that would also violate our statute is not germane to Windsor's claim that
downloading is not duplicating.
State v. Windsor,
supra.
It also “reject[ed]” Windsor’s argument that
interpreting the word `duplicati [on]’
in § 13–3553(A)(1) to include downloading would render superfluous
the terms `receiving,’ `electronically transmitting,’ and `possessing,’ that
appear in § 13–3553(A)(2). Although he does not specifically explain how
these words would become meaningless if downloading constitutes duplication, we
infer that Windsor's primary concern is the term `electronically transmitting.’ But
there are a number of ways that electronic transmission could entail acts other
than downloading, such as using e-mail to send an image or broadcasting
streaming video over the Internet.
Additionally, we are unconcerned that a
defendant who downloaded an image could be found both to possess and to have
duplicated it -- a possibility faced equally by anyone who knowingly copies
proscribed images in any form. Cf. State v. Cheramie, 218
Ariz. 447, 189 P.3d 374 (Arizona Supreme Court en banc 2008) (unlawful
possession lesser-included offense of transporting drugs for sale because `we
cannot conceive how a person can “transport” drugs without having possess[ed
them]’).
State v. Windsor,
supra.
And it found “additional support” in State v.
Jensen, 217 Ariz. 345, 173 P.3d 1046 (Arizona Court of Appeals 2008),
for our conclusion that intentionally
downloading an image constitutes something distinct from receiving, possessing,
or electronically transmitting it. The issue in Jensen was
whether sufficient evidence existed to prove the defendant knowingly had
received or possessed child pornography in violation of §
13–3553(A)(2) when his computer's memory cache contained automatically
saved images that had been accessed via the Internet. State v. Jensen, supra.
In holding the downloaded images could
be evidence of receipt, this court discussed the concept of `receiving’
information through the Internet, distinguishing that receipt from
intentionally downloading a file. State
v. Jensen, supra (images automatically stored in computer cache constituted
evidence operator voluntarily received them by `intentionally accessing websites’
`to have them visually appear on the screen’).
State v. Windsor,
supra.
The Court of Appeals went on to explain that,
[s]imilarly, we determined that, by
visiting websites containing child pornography, the defendant in Jensen
had taken `”something given, offered, or transmitted”’ or had `”convert[ed]
incoming electro-magnetic waves into visible or audible signals,”’ an act
similar to, but separate from, intentionally downloading files onto his
computer hard drive. State v.
Jensen, supra, quoting Webster's II New Riverside University Dictionary 981
(1994).
Implicit in this discussion is the idea
that `electronic transmission’ is the broadcast of images over the Internet,
which one receives by viewing, and that these acts of transmitting and receiving
are separate from actively and intentionally making a copy by downloading and
saving the images in a specific location on a computer.
State v. Windsor,
supra.
It concluded by pointing out that
[a]t Windsor's trial, an FBI computer
forensics expert testified that downloading a file from the Internet involves
copying the file to a user's computer hard drive. And Windsor did not contest
that he was responsible for downloading the recovered image files.
Accordingly, because the state
presented evidence that, by downloading these images, Windsor intentionally had
copied them onto the computer, his conviction for duplicating an exploitative
visual representation of a child in violation of § 13–3553(A)(1) was
supported by substantial evidence.
State v. Windsor,
supra.
It therefore affirmed Windsor’s convictions and sentences. State v. Windsor, supra.
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