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State v. Sisler

July 24, 2003

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
KEVIN SISLER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

VERNIERO, J., writing for a majority of the Court.

In this appeal, the Court interprets the child-pornography provisions of New Jersey's child endangerment statute and determines whether the defendant, who printed a prohibited image from a computer for his sole personal use, can be charged as a second-degree offender, as a matter of law, under N.J.S.A. 2C:24b(4), thereby exposing him to a presumptive seven-year prison term.

Acting on information that an unidentified male was using a public computer at a local library to view and print images of child pornography, an FBI agent went to the library to investigate. There, the agent observed the defendant, Kevin Sisler, access certain Internet web sites and use the library's printer to copy the prohibited images. Thereafter, the agent communicated with the county prosecutor's office regarding the incident and a joint investigation ensued. Ultimately, pursuant to a warrant authorizing a search of defendant's car and his residence, authorities discovered a large number of photographs of naked children printed from computer images. Defendant admitted to one of the county detectives that he possessed images of nude young boys at his home and that he used the images for his own personal gratification.

The grand jury indicted defendant on two counts of child endangerment. The first count alleged that defendant knowingly used a computer to "reproduce the image of a child in a prohibited sexual act," in violation of N.J.S.A. 2C:24-4b(4), a second-degree offense that exposed him to a presumptive seven-year prison term. The second count charged defendant with possession of child pornography, in violation of N.J.S.A. 2C:24-4b(5)(b), a fourth-degree offense that exposed him to a presumptive nine-month prison term.

Before trial, defendant moved to dismiss the reproduction count. The trial count granted the motion, and the Appellate Division affirmed in a reported opinion. The Appellate Division concluded that, as a matter of law, a person who prints a computer image for his or her sole personal use has not "reproduced" it within the meaning of the statute. More specifically, the panel determined that the Legislature did not intend "that the simple act of clicking a mouse button to print a computer image" would transform a lone viewer "into a producer of child pornography subject to second-degree penalties.

The Supreme Court granted the State's motion for leave to appeal.

HELD: Defendant's printing of child pornography from an Internet-based site for his sole personal use, as a matter of law, does not constitute "reproduction" of prohibited material under New Jersey's child endangerment statute, and defendant thus cannot be charged as a second-degree offender, which would expose him to a presumptive sevenyear prison term.

1. The history of New Jersey's child endangerment statute demonstrates how the Legislature meticulously denominated certain offenders and crimes in accordance with their perceived degrees of severity, producers of prohibited material being treated more severely than those who simply possess such material. (pp. 4-7)

2. From its enactment in 1977, the focus of the provision at issue was the creation of child pornography. A creator of child pornography (such as a person who initially photographs or films the child) is more culpable than a possessor because the creator sets in motion the objectionable industry the statute seeks to combat. Reading the subsection's text as a whole, it must be concluded that the Legislature similarly intended the companion term "reproduce" to require more than the printing of a preexis ting image for personal use. Thus, defendant, who allegedly printed an already-created image for his sole use, does not fit within a category of second-degree offender. Rather, he is no more than a suspected fourth-degree possessor. Although the State may have presented a reasonable contrary construction of the statute, when a criminal statute is susceptible to two plausible interpretations, it must be construed in the light most favorable to the accused. (pp. 7-11)

3. One of the Code's hallmarks is its grading of offenses. Although a person who possesses child pornography helps to foster a pernicious industry, his or her offense is less severe than the person who creates an image that then can be sold, distributed, circulated, or simply viewed. Because the State's construction effectively treats all such individuals alike, it runs counter to the Code's basic philosophy of distinguishing among offenders by the severity of their offense. Because defendant's analysis is more faithful to the statute's history and to the Code's sentencing structure, it should govern this appeal. (pp. 11-12)

4. Defendant's alleged conduct does not fall within N.J.S.A. 2C:24-4b(4) as a matter of law since the prohibited image already was created when defendant allegedly printed it for his sole use. Thus, he should be exposed to a ninemonth term as a fourth-degree offender and not to a seven-year prison term as a second-degree offender. Absent an explicit clarification by the Legislature, the statute must be construed in the light most favorable to defendant. (p. 12)

Judgment of the Appellate Division is AFFIRMED.

JUSTICE LaVECCHIA has filed a separate dissenting opinion in which JUSTICES COLEMAN and ALBIN join. Justice LaVecchia believed that the plain and unambiguous term "reproduce" should be accorded its fair meaning, as it would be understood by ordinary citizens. Thus, she would have concluded that printing Internet-based images of child pornography constitutes "reproduction," in violation of N.J.S.A. 2C:24-4b(4).

CHIEF JUSTICE PORITZ and JUSTICES LONG and ZAZZALI join in JUSTICE VERNIERO's opinion. JUSTICE LaVECCHIA has filed a separate dissenting opinion in which JUSTICES COLEMAN and ALBIN join.

The opinion of the court was delivered by: Verniero, J.

Argued April 29, 2003

This case requires us to interpret the child-pornography provisions of New Jersey's child-endangerment statute. Defendant allegedly printed a prohibited image from a computer for his sole personal use. The State charged defendant as a second-degree offender under N.J.S.A. 2C:24b(4), exposing him to a presumptive seven-year prison term. The narrow legal issue is whether the statute permits that charge as a matter of law. We hold that it does not.

I.

We briefly summarize the pertinent facts. Acting on information that an unidentified male was using a public computer at a local library to view and print images of child pornography, an FBI agent went to the library to investigate. The agent observed the individual, later identified as defendant, access certain Internet web sites and use the library's printer to copy the prohibited images. The images focused on the children's genitalia. Although the record does not clearly indicate how many different images defendant allegedly had printed, the agent indicated that "the copied pages were piled about an inch and a half thick." State v. Sisler, 353 N.J. Super. 590, 594 (App. Div. 2002).

The agent contacted the county prosecutor's office regarding the incident, and a joint investigation was initiated. The law enforcement authorities thereafter obtained a search warrant for defendant's car and residence. After executing the warrant, the authorities discovered "a large number of photographs of naked children printed from computer images." Ibid. A detective from the county prosecutor's office stated that defendant admitted that he possessed images of "nude young boys" at his home and that he often masturbated while viewing the pictures. For purposes of this appeal, defendant acknowledges that at least one of the images satisfies the statutory definition of child pornography.

The grand jury indicted defendant on two counts of child endangerment. The first count alleges that defendant "knowingly did use a computer to reproduce the image of a child in a prohibited sexual act" in violation of N.J.S.A. 2C:24-4b(4), a second-degree offense that exposes him to a presumptive seven year prison term. N.J.S.A. 2C:44-1f(c). The indictment's second count charges defendant with possession of child pornography in violation of N.J.S.A. ...


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