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Ferrick v. State (9/18/2009) ap-2240

Ferrick v. State (9/18/2009) ap-2240

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
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             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JOHN T. FERRICK,                   
                                   
                    Appellant,          Court  of Appeals No.  A-
                                   9976
               v.                            Trial Court No. 1SI-
                                   06-051 Cr
STATE OF ALASKA,                   
                                   
                    Appellee.                      O  P  I  N   I
End of Caption                     O  N
                                   
                                   
                                    No. 2240    September 18, 2009
                                   
          Appeal  from the Superior Court,  First  Judi
          cial  District, Sitka, Michael  A.  Thompson,
          Judge.

          Appearances:   James W. McGowan,  Sitka,  for
          the   Appellant.   W.  H.  Hawley,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          MANNHEIMER, Judge.

          John  T.  Ferrick appeals his conviction for possession
of child pornography.  He raises two main contentions.
          First, Ferrick argues that the evidence against him was
gathered   illegally.   The  primary  evidence  against   Ferrick
consisted of some five dozen pornographic photographs found on  a
computer hard drive.  These photographs were seized pursuant to a
search  warrant.  Ferrick contends that this search  warrant  was
not  supported by probable cause, and thus the photographs seized
pursuant to this warrant must be suppressed.
          Ferricks  second  contention  is  that  Alaskas   child
pornography        statute,       
AS 11.61.127(a), is unconstitutionally overbroad. In Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), the United States Supreme Court held that the provisions of the federal child pornography statute outlawing virtual child pornography (i.e., computer-generated pornographic images of simulated children) contravened the First Amendments protection of speech, since these provisions did not involve the exploitation of real children. 535 U.S. at 249-258, 122 S.Ct. at 1401-06.
According to Ferrick, the Alaska statute that prohibits the possession of child pornography suffers from the same constitutional flaw as the federal statute that was challenged in Free Speech Coalition. In other words, Ferrick contends that the Alaska statute punishes the possession of virtual child pornography in addition to punishing the possession of pornography that was actually produced with real children.
(In his brief, Ferrick phrases this attack on the statute as an assertion that the statute is unconstitutionally vague. However, Ferrick does not argue that people of common intelligence would be unable to understand the statute, or that they would be relegated to differing guesses about its meaning.1 Rather, Ferrick argues that the statute purports to criminalize conduct that is constitutionally protected. Thus, Ferrick is really claiming that the statute is overbroad. See Petersen v. State, 930 P.2d 414, 425 (Alaska App. 1996).)
For the reasons explained here, we conclude that the search warrant in Ferricks case was supported by probable cause, and thus the State lawfully obtained the pornographic photographs from the computer hard drive. We further conclude that Alaskas child pornography statute does not prohibit the possession of virtual child pornography, but rather is confined to the possession of pornography that was produced using real children. The statute therefore does not violate the First Amendment as construed in Free Speech Coalition.
Underlying facts
     
               In  the early morning hours of June 22, 2005,
     a  security guard at Sheldon Jackson College  in  Sitka
     came across several images of naked children on one  of
     the   computers  in  the  schools  computer  lab.   The
     security  guard  reported  his  discovery  to  Sterling
     Barlow, the colleges computer technician.  Barlow  then
     contacted Sitka Police Officer Roger Stevener.
               Officer  Stevener  interviewed  the  security
     guard  and,  based  on the results of  that  interview,
     Stevener  applied for a warrant to search the computers
     hard  drive for evidence of the crime of possession  of
     child pornography.  Based on Steveners testimony (which
     was essentially a recapitulation of the security guards
     report),  Sitka  Magistrate  Bruce  Horton  issued  the
     requested search warrant.
               Once  the search warrant was issued, Stevener
     traveled  to  the  Sheldon Jackson campus,  seized  the
     computer,  and  then  brought it  back  to  the  police
     station, where it was stored until it could be examined
     by a police technician.
               While  Stevener was waiting for the computers
     hard   drive  to  be  searched,   Stevener  interviewed
     Ferrick  about his connection to the computer.  Ferrick
     admitted  that  he had access to the computer,  and  he
     also admitted that he had downloaded and stored several
     pictures of under-age children in various sexual poses.
          The   search  of  the  computer  hard   drive
revealed  sixty-three photographs of naked or partially
dressed  children  (both male and female)  in  sexually
explicit poses.

The criminal statute at issue in this case

          To  evaluate Ferricks claims in this  appeal,
we  first  must identify the elements of proof required
to   establish  the  crime  of  possession   of   child
pornography codified in AS 11.61.127(a).
          The  definition of this crime hinges  on  the
definition of another crime:  sexual exploitation of  a
minor, AS 11.41.455(a).  The sexual exploitation  of  a
minor  statute prohibits the use of children under  the
age of 18 to produce a live performance or an audio  or
video  or  pictorial portrayal of any of the  following
types   of  conduct:   sexual  penetration;  the   lewd
touching  of  a  persons  genitals,  anus,  or  breast;
masturbation;  bestiality; the  lewd  exhibition  of  a
childs genitals; or sexual sadism or masochism.
          Returning to the definition of possession  of
child  pornography,  AS 11.61.127(a)  declares  that  a
person  may  not  knowingly possess any  material  that
visually   or  aurally  depicts  any  of  the   conduct
described in the sexual exploitation of a minor statute
if  the  person  know[s]  that the  production  of  the
material involved the use of a child under 18 years  of
age who engaged in the conduct.

Ferricks   contention   that  the   child   pornography
possession statute is overbroad

          Ferrick  contends  that  AS  11.61.127(a)  is
unconstitutionally overbroad for two reasons.
          Ferrick first argues that this statute allows
the prosecution and conviction of people who do not, in
fact,  possess  prohibited  child  pornography.    This
argument  is based on the United States Supreme  Courts
decision in Ashcroft v. Free Speech Coalition, 535 U.S.
234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).
          In  Free Speech Coalition, the Supreme  Court
struck  down  portions of the federal child pornography
statute that placed limitations on virtual or computer-
generated pornography, as well as pornographic  imagery
featuring adults who appear to be under-age.  535  U.S.
at  251-58, 122 S.Ct. at 1402-06.  The Court held that,
because of First Amendment protections, Congress  could
not  punish  this type of erotica, since  it  does  not
involve the exploitation of real children.  535 U.S. at
249-251, 256; 122 S.Ct. at 1401-02, 1405.
          According  to  Ferrick,  the  Supreme  Courts
decision  in  Free  Speech  Coalition  means  that  the
government   can   not  prohibit  the   possession   of
pornographic  images  depicting  children  unless   the
government   proves   that  the   production   of   the
pornographic images involved the use of real children.
          Ferrick  acknowledges  that  AS  11.41.455(a)
(the  statute  prohibiting the sexual  exploitation  of
minors)  explicitly requires proof that a  child  under
the  age  of 18 was used in the production of the  live
performance  or in the production of the audio,  video,
or  pictorial  portrayal of sexual  conduct  or  sexual
exhibition.
          Ferrick  also  acknowledges  that  the  child
pornography  statute, AS 11.61.127(a),  requires  proof
that  the  defendant  knowingly possessed  pornographic
material     depict[ing]    conduct    described     in
AS  11.41.455(a), as well as proof that  the  defendant
[knew]   that  the  production  of  the  [pornographic]
material involved the use of a child under 18 years  of
age.
          Seemingly,  then,  AS 11.61.127(a)  is  fully
consistent with the ruling in Free Speech Coalition  in
that the statute applies only to pornographic materials
that were produced using real children under the age of
18.
          Ferrick  argues,  however, that  there  is  a
constitutional flaw in the statute.  He  contends  that
people   can   be   prosecuted  and   convicted   under
AS  11.61.127(a) if they merely think that they possess
pornography that was produced using real children, even
if  the  materials that they possess are really virtual
pornography.
          Ferricks    argument   is   based    on    AS
11.81.900(a)(2),  the Alaska criminal codes  definition
of  the culpable mental state of knowingly.  As defined
in this statute, the culpable mental state of knowingly
applies  to  two different elements of  proof:   (1)  a
defendants    conduct,   and   (2)   the    surrounding
circumstances  that make the conduct criminal  or  that
justify the conduct.
          With  respect to this second element of proof
that is, when a criminal statute requires proof that  a
person  acted  knowingly with respect to a circumstance
this  culpable mental state is proved if the  defendant
[was] aware ... [of] the circumstance [or] aware  of  a
substantial     probability    of    its     existence.
AS  11.81.900(a)(2).   In other words,  the  government
need  not  prove that the defendant knew with certainty
that the circumstance existed; it is sufficient for the
government to prove that the defendant was aware  of  a
substantial probability that the circumstance existed.
          Ferrick  notes that there are  times  when  a
person can be aware of a substantial probability that a
particular   circumstance   exists,   even    if    the
circumstance does not actually exist.  Because of  this
possibility,   Ferrick  argues,  a  person   could   be
prosecuted   and   convicted   of   possessing    child
pornography  under  AS 11.61.127(a)  for  merely  being
aware   of   a   substantial   probability   that   the
pornographic   materials  in  their   possession   were
produced using real children under the age of 18   even
if   it  turns  out  that  the  materials  are  virtual
pornography,  or if it turns out that the  subjects  in
the  pornographic materials were not under the  age  of
18.
          Ferricks argument is based on a misreading of
AS 11.61.127(a).
          It  is  true  that  AS 11.61.127(a)  requires
proof  that the defendant acted knowingly with  respect
to  the circumstance that the pornographic materials in
the  defendants possession were produced us[ing] ...  a
child under 18 years of age.  And with respect to  this
circumstance,  it is sufficient for the  government  to
prove  that  the defendant was aware of  a  substantial
probability  that this circumstance  existed.   See  AS
11.81.900(a)(2).
          But AS 11.61.127(a) also requires proof of an
actus reus  proof of an underlying act of possession of
a    certain    type    of   pornographic    materials.
Specifically,  the  statute  requires  proof  that  the
defendant  possessed pornographic material  depict[ing]
conduct  described  in  AS  11.41.455(a)   the  statute
prohibiting the sexual exploitation of minors.
          The  conduct described in AS 11.41.455(a)  is
the  use  of  children under the age of  18  to  create
pornography:  induc[ing] or employ[ing] a  child  under
18  years of age to engage in one or more of the  types
of   sexual   activity  listed  in  the   statute,   or
(alternatively)       photograph[ing],       film[ing],
record[ing], or televis[ing] a child under 18 years  of
age engaged in the listed types of sexual activity.
          Reading  these  two  statutes  together,   we
construe  AS  11.61.127(a) to forbid the possession  of
pornographic material that was generated by the conduct
prohibited   by  AS  11.41.455(a)   in   other   words,
pornography that was generated by the use  of  a  child
under the age of 18.
          Under  AS  11.61.127(a), the government  must
prove that the defendant actually possessed pornography
that  was  generated  by  the  conduct  prohibited   by
AS  11.41.455(a)  that is, pornographic  material  that
was  generated using a real child under the age of  18.
Additionally,  the government must prove  two  culpable
mental  states:   first, that the defendant  knew  that
this  child  pornography was in their  possession;  and
second, that the defendant acted knowingly with respect
to  the circumstance that the pornography was generated
using a child under the age of 18.
          Our  construction of AS 11.61.127(a) provides
the   answer   to  Ferricks  claim  that  the   statute
unconstitutionally penalizes the possession of  virtual
child  pornography.  The statute does  not  reach  this
conduct   and, therefore, the statute conforms  to  the
United States Supreme Courts ruling in Ashcroft v. Free
Speech Coalition.

A  more  detailed  description of  the  search  warrant
application,  and  our analysis of Ferricks  contention
that this application failed to support the issuance of
the warrant

          Ferricks  remaining point on appeal  is  that
the  evidence against him was obtained illegally   that
the warrant authorizing the search of the computer hard
drive was not supported by probable cause.
          The  search  warrant application in  Ferricks
case   was  supported  by  the  testimony  of   Officer
Stevener; this testimony, in turn, was based largely on
the   information  provided  by  the  Sheldon   Jackson
security guard.
          As   recited  by  Officer  Stevener  in   his
testimony,  the  security  guard  was  engaged  in  his
nightly  duties  when he bumped  into  a  desk  in  the
computer  lab.  The computer sitting on this  desk  had
been left on, and this jostling activated the monitor.
          On the screen, the security guard observed  a
file  labeled  Lloyds.  When the security guard  opened
this file by clicking on it, he saw three images.   One
image was of a naked young girl, between five and seven
years old, with her legs spread apart.  This image bore
the  title,  Fill  me up.  The other  two  images  were
pictures of naked young boys, four to seven years  old,
depicting the boys penises.
          Based  on  this  information, the  magistrate
issued a warrant  authorizing the police to search  the
hard  drive of this computer for evidence of the  crime
of possession of child pornography.  This search led to
the discovery of sixty more photographs of children  in
sexually explicit poses.
          In  this  appeal, Ferrick contends  that  the
information  presented  to  the  magistrate   was   not
sufficient  to  support  the issuance  of  the  warrant
i.e.,  not  sufficient to establish probable  cause  to
believe that the computer hard drive contained evidence
of the offense of possession of child pornography.
          The   State  contends  that  the  information
provided  by  the  security  guard  was  sufficient  to
establish probable cause for the search  sufficient  to
establish  reason  to believe that the  computers  hard
drive   contained   evidence  that  someone   knowingly
possessed images depicting the lewd exhibition  of  the
genitals of children under the age of 18.
          Ferrick    contends,   however,   that    the
information  provided  by the security  guard  was  not
sufficient  to  differentiate the three photographs  on
the  computer from works of unquestionable artistic and
socially redeeming significance  works such as many  of
the  classic  paintings and drawings used  in  ...  art
curricula [in] high school and college.
          We  disagree.   Although the security  guards
description may not have been sufficiently detailed  to
completely  rule  out  the  innocent  explanation  that
Ferrick  proposes,  the question  is  not  whether  the
security   guards  description  constituted  conclusive
proof of a crime.  Rather, the question is whether  the
guards  description provided probable cause to  believe
that the three images were evidence of a crime.
          The  test  is  whether the guards description
provided  sufficient  detail to  warrant  a  reasonably
prudent  person in believing that a crime had been,  or
was  being, committed.2  As our supreme court  recently
clarified in State v. Koen, 152 P.3d 1148, 1152 (Alaska
2007),   the  concept  of  probable  cause  hinges   on
probability rather than certainty, [and thus] a showing
of  probable cause need not rule out other explanations
that are merely possible.
          Here,   the   evidence   presented   to   the
magistrate was that a particular folder on the computer
contained  several  images  of  naked  young  children.
These children were of approximately the same age,  and
well  under puberty.  One of the images depicted a girl
with   her  legs  spread  (i.e.,  a  pose  that   could
reasonably be interpreted as sexually suggestive),  and
this  image  was labeled Fill me up (i.e.,  words  that
could    reasonably   be   interpreted   as    sexually
suggestive).   The  other two images were  pictures  of
naked boys with their penises displayed.
          When  we consider this information as a whole
the  visual content of the three images, the fact  that
they  were  grouped together in a computer folder,  and
the  fact  that one of them bore a sexually  suggestive
label   we conclude that the search warrant application
provided probable cause to believe that the images were
evidence  of  someones  knowing  possession  of   child
pornography.
          Ferrick  also argues that the search  warrant
application  did  not dispel the possibility  that  the
images  observed  by  the security  guard  were  merely
drawings  of children, or computer-generated  graphics,
rather  than photographs of real children.   He  points
out  that,  in  the  search  warrant  application,  the
photographs  were  described  merely  as   images   and
pictures,  as  opposed to photographs.  Ferrick  argues
that the search warrant application needed to contain a
direct  assertion that the images on the computer  were
photographs, or at least a recitation that the  suspect
images appeared to be those of real children.
          We   reject  this  argument  because,  as  we
explained  earlier, the standard for issuing  a  search
warrant  is  probable  cause, and  the  probable  cause
standard  does not require an affirmative  negation  of
all innocent explanations.
          It  is  true  that, because Officer  Stevener
used  the  terms  images  and  pictures,  there  was  a
possibility  that  the  security  guard  had   observed
computer representations of oil paintings, or computer-
          generated cartoons, rather than digital photographs.
But search warrants need not be supported by conclusive
proof   of   criminality.   The  question  before   the
magistrate   was  whether  the  testimony  provided   a
reasonable  basis  to believe that  the  computer  hard
drive contained digital photographs of real children.
          We   conclude   that  when  the   information
presented to the magistrate is analyzed in context  and
in   a   common-sense  manner,  that  information   was
sufficient  to establish reasonable grounds to  believe
that  the images and pictures on the computer  were  in
fact  photographs of minor children engaged  in  sexual
conduct described in AS 11.41.455(a).
          For  these  reasons,  we  uphold  the  search
warrant in Ferricks case.

Conclusion

          The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
  1  Petersen  v.  State, 930 P.2d 414, 424 (Alaska  App.  1996),
quoting  Schad  v. Arizona, 501 U.S. 624, 632;  111  S.Ct.  2491,
2497; 115 L.Ed.2d 555 (1991).

2 Badoino v. State, 785 P.2d 39, 41 (Alaska App. 1990).

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