Link to original WordPerfect file
Link to PDF file
How to access the above link?
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v.
ROGER DALE HOWELL, Defendant
NO. COA 03-1491
Filed: 15 March 2005
1. Sexual Offenses_-third-degree sexual exploitation of minor--motion to dismiss--
multiplicity of convictions
The trial court did not err in a multiple third-degree sexual exploitation of a minor case
by denying defendant's motion to dismiss some or all of the charges on grounds of double
jeopardy and by denying his motion to arrest judgment on all but one count arising from 43 child
pornography images on defendant's computer hard drive, because: (1) the plain language of
N.C.G.S. § 14-190.17A(a) supports multiple convictions, and the intent of the child pornography
statutes is to prevent the victimization of individual children and to protect minors from
physiological and psychological injuries resulting from sexual exploitation and abuse; and (2)
even if there were only five downloads, the State's evidence tended to show that each of the two
hundred individual photographs on defendant's computer, found within the five zip directories,
had been opened, and saved on defendant's hard drive.
2. Constitutional Law_-overbreadth--child pornography statutes--case-by-case
analysis of fact situations
N.C.G.S. §§ 14-190.17A(a) and 14-190.13 which protect against child pornography
are not overbroad even though they extend to images of minors which do not require a live minor
for their production and even though defendant contends they allegedly criminalize material that
does not violate community standards, because: (1) both the Court of Appeals and our Supreme
Court have addressed this very issue and concluded that the statutes are constitutional; and (2)
whatever overbreadth may exist should be cured on a case-by-case analysis of fact situations to
which their sanctions assertedly may not be applied.
3. Sentencing--consecutive probationary sentences--sexual exploitation of minor
The trial court did not err in a multiple third-degree sexual exploitation of a minor case
by allegedly imposing consecutive probationary sentences in violation of N.C.G.S. § 15A-1346,
because: (1) defendant did not receive consecutive probationary sentences; (2) the judgment
indicated that defendant was subject to six consecutive suspended sentences and a total of five
years of probation, that defendant would serve six consecutive sentences if defendant's probation
is revoked, and the trial court in its discretion may sentence a defendant this way; and (3) the
trial court imposed 60 months of supervised probation only after making a finding that a longer
period was necessary than that prescribed in N.C.G.S. § 15A-1343.2(d).
Appeal by defendant from judgments entered 3 January 2003 byJudge Timothy L. Patti in Gaston County Superior Court. Heard in
the Court of Appeals 1 September 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Leslie C. Rawls, for defendant-appellant.
On 7 August 2000, Defendant Roger Dale Howell was indicted
by a Gaston County Grand Jury on multiple counts of second-degree
sexual exploitation of a minor. On 25 November 2002, a jury
convicted defendant of 43 counts of third-degree sexual
exploitation of a minor. Upon his convictions, Judge Patti
sentenced defendant to six consecutive terms of imprisonment of six
to eight years. These sentences were suspended and defendant was
placed on supervised probation for 60 months. Defendant appeals
his convictions and sentence, and for the reasons set forth below,
we find no error.
The evidence tends to show that in February or March 2000,
defendant began communicating over the Internet with Jamie Renee
Hammonds via instant messages. Although both lived in Gastonia,
, defendant and Ms. Hammonds were not acquainted.
Ms. Hammonds testified that on 24 May 2000, she began posing online
as Sissy, Ms. Hammonds' fifteen-year-old babysitter. Initially,she posed as the babysitter to get defendant to leave her alone,
but after conversing with defendant as Sissy, Ms. Hammonds became
suspicious of defendant's interest in the purported fifteen-year-
old. Hammonds sent defendant a picture of her actual babysitter
and testified that defendant later asked Sissy to make a very
sexy picture that on a scale of 1 to 10 would be a 10. Hammonds
testified that the two discussed meeting somewhere and that
defendant again asked Sissy to send a sexy picture of herself.
Hammonds continued communicating with defendant and contacted law
enforcement authorities including Crimestoppers, the Missing and
Exploited Children's hotline, and Detective Hawkins of the Gastonia
After further online conversations between Hammonds and
defendant, Detective Hawkins went to Hammonds' house and viewed
transcripts of her conversations with defendant, as well as
photographs defendant had sent her. The police then set up an
undercover meeting between Sissy and defendant. A female officer
went to Hammonds' house, where posing as Sissy, she chatted with
defendant online, spoke with him on the telephone, and set up a
meeting. Defendant met the undercover officer at a local park,
believing she was Sissy, and asked her about the pictures she was
supposed to bring to him. Officers arrested him in the park.
Police officers executed a search warrant at defendant's homeand seized a computer, which was turned over to SBI
Smith, an expert in computers and computer evidence of crimes
against children. On the hard drive of the seized computer,
Smith found over 200 pictures depicting minors engaged in sexual
acts. These images were received in five zip files, and then
stored on the computer's hard drive in five separate directories.
 Defendant argues that the trial court erred when it
denied his motion to dismiss some or all of the charges on grounds
of double jeopardy and when it denied his motion to arrest judgment
on all but one count. In these assignments of error, defendant
contends that the charges against him were multiplicitous.
Defendant asserts that the possession of photos on a single hard
drive constitutes only one offense or, in the alternative, no more
than five separate counts, one for each downloaded zip file. We
Defendant argues that the applicable statutory definitions
do not support the multiple charges against him. Defendant was
convicted of violating N.C.G.S. § 14-190.17A(a) (2000), which
provides in pertinent part:
A person commits the offense of third degree sexual
exploitation of a minor if, knowing the character or content
of the material, he possesses material that contains avisual representation of a minor engaging in sexual
Id. N.C.G.S. § 14-190.13 (2000) defines material as:
Pictures, drawings, video recordings, films or other visual
depictions or representations but not material consisting entirely
of written words. Id. Defendant suggests that because the
definition of material specifies items in the plural, the
photographs found on his computer constitute only a single charge.
In support of this argument, defendant cites a Delaware case
where the court held that multiple charges against a defendant who
possessed multiple child pornography photographs were not
multiplicitous because the applicable statute referred to a
singular visual depiction. Fink v. State, 817 A.2d 781 (Del.
2003). Although not controlling, we read Fink as undermining
rather than supporting defendant's argument. Defendant focuses
solely on the plural form in the definition of material, in
N.C.G.S. § 14-190.13, while ignoring the plain language of the
statute under which he was convicted
, N.C.G.S. § 14-190.17A(a).
The latter section
makes possession of material containing a
visual representation, a violation of the law.
N.C.G.S. § 14-
(emphasis added). Fink supports conviction on multiple
counts where the statute proscribes possession of a singular visual
depiction or representation, as it does here. Furthermore, weconclude that the listing of plural items in the definition of
material is merely a matter of style.
Although North Carolina Courts have not previously addressed
under these statutes, many jurisdictions
have done so in similar cases
. The Supreme Courts of Utah and
South Dakota have held that their respective statutes, which, like
North Carolina's, define material in the plural, support multiple
convictions for possession of child pornography downloaded to a
defendant's computer. State v. Morrison, 31 P.3d 547 (Utah 2001);
State v. Martin, 674 N.W.2d 291 (S.D. 2003). In addressing the
issue of multiplicity, many courts have focused on whether the
relevant statutes refer to a or any visual representation.
While some jurisdictions conclude that the use of any is
ambiguous and cannot support multiple charges for possession of
multiple photographs on a computer hard drive or floppy disk, most
construe any to support multiple convictions for possession of
. See, e.g., U.S. v. Kimbrough, 69 F.3d 723 (5th
Cir. 1995); State v. Parrella, 736 So. 2d 94 (Fla. App. 1999);
American Film Distributors, Inc. v. State, 471 N.E.2d 3 (Ind. App.
1984) (all holding that any is ambiguous). But see, Martin, 674
N.W.2d 291; State v. Mather, 646 N.W.2d 605, 616 (Neb. 2002);
Morrison, 31 P.3d 547; State v. Multaler, 643 N.W.2d 437 (Wis.
2002); U.S. v. Esch, 832 F.2d 531 (10th Cir. 1987) (all holding thatany supports multiple convictions). We have found no
jurisdictions, however, which have held the use of the singular
a, as appears in our statute, to be ambiguous. Indeed, an
Alabama court stated:
How, then, should the unit of prosecution be described so
that an intent to allow multiple convictions is clear and
unequivocal? Instead of using the word any to describe
the unit of prosecution, the singular word a . . .
should be used.
McKinney v. State, 511 So.2d 220, 224 (Ala. 1987). Similarly, we
conclude that the plain language of N.C.G.S. § 14-190.17A(a)
supports multiple convictions here.
Defendant also cites North Carolina cases in support of his
argument. See State v. Smith,
323 N.C. 439, 373 S.E.2d 435 (1988);
State v. Petty
, 132 N.C. App. 453, 512 S.E.2d 428 (1999). Neither
of these cases, however, involves violations of the child
pornography statutes. Id. In Petty, the Court addressed whether
a first-degree sexual offense is a single wrong for jury unanimity
purposes and thus is inapposite. 132 N.C. App. at 460-61, 512
S.E.2d at 433.
In its short discussion of multiplicity, the Petty
Court noted that to avoid multiplicity in an indictment, a
criminal pleading must contain . . . [a] separate count addressed
to each offense charged. Id. at 463, 512 S.E.2d at 435 (internal
citations omitted). Defendant makes no argument regarding the
number of indictments. In Smith, the Court held that a single sale of multiple
pornographic magazines could not yield multiple convictions. 323
N.C. at 444, 373 S.E.2d at 438
. However, Smith is also easily
distinguished from this case, as it involved the defendant's
conviction under N.C.G.S. § 14-190.1(a), for intentionally
disseminating obscenity. Id. The statute involved here, N.C.G.S.
§ 14-190.17A(a), differs from the one in Smith in two important
ways. First, although enacted at the same time and under the same
bill as N.C.G.S. § 14-190.17A(a), the statute in Smith makes it
illegal to sell any obscene writing, picture or other
representation or embodiment of the obscene.
N.C.G.S. § 14-
. The Court reasoned that this
language, using any rather than a,
failed to indicate a clear
expression of legislative intent to punish separately and
cumulatively for each and every obscene item. Smith at 437, 373
S.E.2d at 441-42. By contrast, in N.C.G.S. § 14-190.17A(a)
legislature chose to use the term a visual depiction, thus
indicating a different intent.
Both N.C.G.S. §§
14-190.1(a) and 14-190.17A(a) were enacted
under a bill entitled, An act to strengthen the obscenity laws of
this State and the enforcement of these laws . . . and to stop the
sexual exploitation . . . of minors (emphasis added). See Cinema
I Video, Inc. v. Thornburg, 83 N.C. App. 544, 549, 351 S.E.2d 305,309 (1986), aff'd 320 N.C. 485, 358 S.E.2d 383 (1987).
But, in the
two statutes, the legislature addressed two distinct societal
problems. Obscenity laws, such as N.C.G.S. § 14-190.1(a), address
the public or community morality and serve to protect . . .
society as a willing or unwilling audience from the corrupting
effects of obscenity. Id. at 551-52, 351 S.E.2d at 311. Child
pornography laws, such as N.C.G.S. § 14-190.17A(a), on the other
hand, are designed to prevent the victimization of individual
children, and to protect minors from the physiological and
psychological injuries resulting from sexual exploitation and
abuse. Id. This Court has noted that child pornography poses a
particular threat to the child victim because the child's actions
are reduced to a recording [and] the pornography may haunt him in
future years, long after the original misdeed took place. Id. at
568-69, 351 S.E.2d at 320 (citing New York v. Ferber, 458 U.S. 747,
759, 73 L.Ed. 2d 1113, 1124 (1982)
). Intending to protect
individual minors from harm, the General Assembly wrote N.C.G.S. §
14-190.17A(a) to support a charge for each image. In Smith, the
statute was directed at the community morality concerns of
obscenity, not to the victimization of individual children. We
conclude, therefore, that the legislature intended by § 14-
190.17A(a) that a defendant could be charged and convicted on
multiple counts for the 43 child pornography images on his computerhard drive.
Without abandoning his argument that he should only have
been convicted on one count of possession of child pornography,
defendant argues alternatively
that the evidence supports, at most,
five counts, as there were five downloads of one zip file each.
Although the State's evidence regarding the downloads is somewhat
confusing, it did show five zip files on defendant's hard drive,
each containing multiple compressed files with child pornography
images. The State's witness, Agent Smith, testified that it
appeared that defendant downloaded these files from the Internet.
Defendant argues that each of the five downloaded zip files is the
technological equivalent of a digital magazine. Accordingly,
defendant asserts that as in Smith, where a magazine supported only
one charge, we should treat each zip file as only one item, rather
than allowing separate charges for each photo. We decline to do
As discussed, Smith does not apply here, as the intent of
obscenity statutes is different from that of child pornography
statutes. Furthermore, even if there were only five downloads,
the State's evidence tended to show that each of the two hundred
individual photographs on defendant's computer, found within the
five zip directories, had been opened on defendant's computer. As
each of the images had been opened, and saved on defendant's harddrive (regardless of what directory they were in),
we hold that
the evidence supports the conclusion that defendant possessed
each of these 43 images, per N.C.G.S. § 14-190.17A(a).
Thus, we conclude that defendant's multiple convictions are
consistent with the language and intent of the child pornography
statutes and do not violate his right to be free from double
 Defendant also argues that the statutes under which he
was convicted are unconstitutionally overbroad, in violation of the
First Amendment of the United States and North Carolina
Constitutions. Defendant asserts that the statutes which resulted
in his conviction are unconstitutional both facially and as applied
to him. However, both this Court, and our Supreme Court have
previously addressed this very issue and concluded that the
statutes are constitutional. Cinema I Video, Inc. v. Thornburg, 83
N.C. App. 544, 352 S.E.2d 305 (1986), aff'd 320 N.C. 485, 358
S.E.2d 383 (1987). Defendant has failed to cite to this
controlling precedent or to distinguish his case. As explained
below, we are bound to follow the sound rulings of the Cinema I
It is well-established that obscenity is not protected
expression. Cinema I, 83 N.C. App. at 565, 351 S.E.2d at 318. The Supreme Court of the United States has ruled that it is
constitutionally permissible to consider as without the protections
of the First Amendment those materials classified as child
pornography. Id. (citing Ferber, 458 U.S.
at 764, 73 L.Ed. 2d at
1127, which held that pornography depicting actual children can be
proscribed regardless of whether the images are obscene because of
the State's paramount interest in protecting children exploited by
the production process). Like the defendants in Cinema I,
defendant here argues that N.C.G.S. §§
overbroad because they extend to images of minors which do not
require a live minor for their production and because they prohibit
material which is accepted by the community.
Although a defendant
ordinarily may challenge the constitutionality of a statute only if
it is unconstitutional as applied to his prosecution, he may
challenge its constitutionality regardless of its application to
him if the statute, may cause others not before the court to
refrain from constitutionally protected speech or expression.
Broadrick v. Oklahoma, 413 U.S. 601, 612, 37 L.Ed.2d 830, 840
(1973). Thus, defendant's challenge on this basis is properly
before the Court.
But, our Courts determined, in the Cinema I
cases, that the challenged statutes were not unconstitutionally
Defendant argues that N.C.G.S. § 14-190.17A(a)
containsunconstitutionally overbroad statutory
definitions. The statutory
which defendant objects, include those of minor,
material, and sexual activity, which appear in in N.C.G.S. §
14-190.13, as follows:
(2) Material -- Pictures, drawings, video recordings, films
or other visual depictions or representations but not
material consisting entirely of written words.
(5) Sexual Activity. -- Any of the following acts:
a. Masturbation, whether done alone or with another
human or an animal.
. . .
c. Touching, in an act of apparent sexual stimulation
or sexual abuse, of the clothed or unclothed
genitals, pubic area, or buttocks of another person
or the clothed or unclothed breasts of a human
Id. Defendant argues that the United States Supreme Court's
holding in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 152
L.Ed.2d 403 (2002), supports his overbreadth argument
In Free Speech Coalition, the United States Supreme Court
held that the Child Pornography Prevention Act of 1996 (CPPA) was
unconstitutionally overbroad because it proscribed virtual child
pornography, as well as movies where adult actors play minor
children, both of which depict minors but are produced without
using real children. Id. at 241, 152 L.Ed.2d at 415. The Court
reasoned that because such depictions record no crime and
create no victims by [their] production, [they are] not'intrinsically related' to the sexual abuse of children and thus
do not fall under Ferber. Id. at 250, 152 L.Ed.2d at 421
. In his
brief, defendant contends the State made no showing that the
photographs involved depict actual children. We note that
defendant did not raise this issue at trial, did not assign it as
error on appeal, devotes only
one sentence to this argument in his
brief, and has never asserted that the children in the picture were
other than actual children. Even if he had, however, Cinema I
adequately disposes of defendant's argument.
Defendant also argues that the statute in his
too broadly by criminalizing material that does not violate
community standards. Specifically, defendant objects to the
prohibitions found in N.C.G.S. §§
14-190.13 (5)(a) and (c), against
depictions of masturbation and touching in an act of apparent
. Again, defendant relies on Free Speech
Coalition, which held that the CPAA unconstitutionally proscribed
the visual depiction of an idea _- that of teenagers
engaging in sexual activity _ that is a fact of modern
society and has been a theme in art and literature
throughout the ages. Under the CPAA, images are prohibited
so long as the persons appear to be under 18 years of age.
535 U.S. at 246-47, 152 L.Ed.2d at 418-19 (emphasis added). The
crucial distinction between the CPAA and the North Carolina
statutes is that the CPAA prohibits
images in which the person only
appears to be a minor, whereas our statutes prohibit only
depictions which use an actual minor in their production. Thus, we
conclude that Free Speech Coalition is inapposite.
We recognize and echo the concerns expressed by defendant
and noted by the Cinema I Courts regarding this issue, but
ultimately must conclude that the statutes are constitutional
Cinema I, the Court agreed with plaintiffs that many PG and R
rated films which are 'accepted entertainment' may fall within
the ambit of N.C.G.S. §
. The Court held, though,
whatever value those . . . films may have, such value is
overwhelmingly outweighed by the State's compelling interest
in protecting its youth from the debilitating psychological
and emotional trauma that are attendant with child
pornography and bear so heavily and pervasively upon the
welfare of children. Our sentiment in this regard was aptly
expressed by the Court in Ferber , as follows:
We consider this the paradigmatic case of a state statute
whose legitimate reach dwarfs its arguably impermissible
83 N.C. App. at 566, 351 S.E.2d at 319.
(internal quotations and
citations omitted). Importantly, the Court further held that
whatever overbreadth may exist should be cured through a
case-by-case analysis of fact situations to which its sanctions
assertedly may not be applied. Id. Our Supreme Court, in
affirming the Court of Appeals' Cinema I decision, reiterated
that,[f]act situations are readily conceivable in which the
statutes at issue, if improperly applied, would beunconstitutional. 320 N.C. at 491, 358 S.E.2d at 385. Here,
while recognizing this possibility, we are bound by the Cinema I
that the statutes were not facially overbroad and
conclude that the statutes are constitutional as applied to
 Defendant also argues that the trial court erred by
imposing consecutive probationary sentences, in violation of N.C.
G.S. § 15A-1346 (2000). We disagree. Consecutive probationary
sentences, would indeed violate N.C.G.S. § 15A-1346, which states
(a) Commencement of Probation. -- Except as provided in
subsection (b), a period of probation commences on the day
it is imposed and runs concurrently with any other period of
probation, parole, or imprisonment to which the defendant is
subject during that period.
(b) Consecutive and Concurrent Sentences. -- If a period of
probation is being imposed at the same time a period of
imprisonment is being imposed or if it is being imposed on
a person already subject to an undischarged term of
imprisonment, the period of probation may run either
concurrently or consecutively with the term of imprisonment,
as determined by the court. If not specified, it runs
Id. This Court has held that imposition of consecutive terms of
probation violates this statute and must be reversed. State v.
Canady, 153 N.C. App. 455, 570 S.E.2d 262 (2002). We disagree, in
that the defendant here did not receive consecutive probationarysentences.
The judgments indicate that the defendant is subject to six
consecutive suspended sentences and a total of five years of
probation, and that if defendant's probation is revoked, the trial
court orders that he serve six consecutive sentences. The trial
court may, in its discretion, sentence a defendant this way. State
v. Moore, 162 N.C. App. 268, 592 S.E.2d 562 (2004). The court
imposed 60 months of supervised probation only after making a
finding that a longer period was necessary than that prescribed in
N.C.G.S. § 15A-1343.2 (d) (2000) (which would have been not more
than 30 months). As we conclude that defendant did not receive
consecutive probationary sentences, we overrule this assignment of
Judges TYSON and GEER concur.
*** Converted from WordPerfect ***