Doe asserts the County breached three mandatory duties as described in the Department of Social Services Manual of Regulations (DSSMR): 1) it failed to visit Doe at Sykes's foster home at least three times in the first 30 calendar days of her placement pursuant to DSSMR section 31-320; 2) it failed to conduct monthly visits with Sykes as required by DSSMR section 31-330.21;9 and 3) it failed to report Doe's <mask> despite knowing she was pregnant by an 18 year old as required under DSSMR section 31-501 and CANRA, Penal Code sections 11164 through 11174.3. Here, the evidence presented by Doe was insufficient to permit a jury to find the breach of these duties was a proximate cause of her injuries.


In 2014, McClure was charged with first-degree statutory sodomy, child molestation, and attempted <mask>, pursuant to Sections 566.062.1, 566.067, and 566.032, respectively.1 At trial, the prosecution submitted as evidence the 2007 CAC interview. McClure objected to the exhibit, arguing there was potentially a lack of foundation, materials subject to motions in limine, and improper bolstering. The objection was overruled, and the jury found McClure guilty on the sodomy and molestation charges but acquitted him of the attempted statutory rape charge. The court ordered McClure to serve two consecutive life sentences.


The evidence here plainly satisfies the elements of first-degree child molestation insofar as Barbee subjected Victim, a person less than fourteen years of age, to sexual contact by touching his penis to her genitals. The evidence fully supports that his purpose in doing so was to "arous[e] or *34gratify[ ] the sexual desire of any person." He had advised Victim that he wanted her to join his "circle of sex" and he specifically asked her, "how do you feel?" while engaging in sexual acts with Victim. Furthermore, the jury specifically found that Barbee had such a purpose when it convicted him of two counts of first-degree statutory sodomy and one count of first-degree child molestation for incidents which occurred at the same time, or very close in time, to the <mask> offense that we are reversing. See Smith , 330 S.W.3d at 556 (noting that, in that case, "all elements of the lesser offense, attempted statutory rape in the second degree, were explicitly found by the jury in finding Appellant guilty of Count I, enticement of a child, when coupled with their determination of guilt as to Count II, attempted statutory rape in the first degree."). The sodomy verdict-directors here required the jury to find that Barbee engaged in "deviate sexual intercourse," which includes a finding that he engaged in the conduct "for the purpose of arousing or gratifying the sexual desire of any person." § 566.010(1). And it also found him guilty of first-degree child molestation as a lesser-included of the third sodomy charge, which included its determination that he engaged in the conduct "for the purpose of arousing or gratifying sexual desire of any person." § 566.010(3). Hence, all three prongs of the test identified in Payne are satisfied with respect to first-degree child molestation and we may direct the trial court to enter a conviction on this lesser-included offense.


While the evidence for each victim in Celis-Garcia showed that multiple acts of sodomy occurred at different, specified locations over an extended time period, the evidence for each victim in this case showed that multiple acts of <mask> occurred in an identical manner in the same location approximately every other day over a period of time. Id. at 11-12. The Western District likened its case to the hypothetical referenced in the Celis-Garcia footnote, as the victims testified to "repeated, identical sexual acts committed at the same location during a particular time span, and they were unable to testify to specific acts on specific dates." Id. at 12. As such, the verdict directors focused on a single month, and any evidentiary fact that could distinguish one incident of rape from another was included in the verdict directors.9 The Court concluded that "[t]he factual findings required by each verdict director rendered it impossible for the jurors to differentiate between the repeated, identical acts of statutory rape that fell within each of the verdict directors." Id. Accordingly, the defendant's right to a unanimous jury verdict was not violated because the jurors had no evidentiary basis upon which to differentiate between the repeated acts. Id. Notably, as to the first count, the Court concluded the fact that sexual acts on different dates within the month of May "could theoretically have been relied on by the jurors in finding [the defendant] guilty cannot demonstrate a violation of the right to a unanimous verdict when the record contains no evidentiary basis for the jurors to distinguish between those acts." Id.


It is important to note that the Court of Appeals emphasized that the reason for holding defendant’s daughter not to he an accomplice did not rest upon the fact that she could not be indicted for the crime but rather upon the ground that she was incapable of consent. Here we have a clear determination that a <mask> may be the basis for a conviction of incest but that such conviction may be had as to the male participant only despite the statutory language rendering each punishable.


As to Count 2, if you find and believe from the evidence beyond a reasonable doubt: First, that on or about January 2011, in the County of Nodaway, State of Missouri, the defendant knowingly had sexual intercourse with N.G. in defendant's bedroom in Burlington Junction every time her Mom went to Wal-Mart, and Second, that at that time N.G. was a child less than twelve years old, then you will find the defendant guilty under Count 2 of <mask> in the first degree. However, unless you find and believe from the evidence beyond a reasonable *11doubt each and all of these propositions, you must find the defendant not guilty of that offense. The issue of jury unanimity may be implicated in cases such as this, which are commonly referred to as "multiple acts" cases. Id. "A multiple acts case arises when there is evidence of multiple, distinct criminal acts, each of which could serve as the basis for a criminal charge, but the defendant is charged with those acts in a single count." Id. at 155-56. The evidence in this case was that Walker had sexual intercourse with B.W. and N.G. in the same manner and same location approximately every other day over a period of time, yet he was charged with only one count of statutory rape for each victim. The count for each victim specified the month in which the act of statutory rape occurred but did not specify a particular act of statutory rape on a particular date. Walker argues that, by not specifying a particular act of statutory rape in each count, the verdict directors ran afoul of the Supreme Court's opinion in Celis-Garcia , 344 S.W.3d 150.


The State charged Walker with one count of first-degree <mask> involving B.W., one count of first-degree statutory rape involving N.G., and one count of attempted first-degree statutory sodomy involving B.W. A jury trial was held. Walker testified at trial that he never sexually abused either B.W. or N.G. The jury found Walker guilty of both counts of first-degree statutory rape and not guilty of attempted first-degree statutory sodomy. The court later imposed the jury-recommended sentences of 25 years in prison on each of the statutory rape counts, to be served consecutively. Walker appeals.


In People v Bouton (50 NY2d 130), defendant was convicted of sodomy and sexual abuse. During the course of their deliberations the jury viewed exhibits not admitted in evidence including “two versions of defendant’s confessions from which reference to uncharged sexual activity had not been redacted * * * hearsay laden psychiatric medical records of the <mask> complainant and welfare records of her mother.” (Supra, p 137.) In view of the prejudicial nature of this material, the court held that the error could not be excused as harmless and a new trial was ordered.


Thus, "forcible compulsion, by its very definition, does not encompass all instances of nonconsensual sex crimes." Thompson , 361 S.W.3d at 50 (emphasis added). Forcible sex crimes require an element of physical force or threat that is simply not required for a first-degree <mask> conviction, as the mere act of an individual engaging in sexual intercourse with someone under the age of fourteen, absent any physical force or threat, constitutes first-degree statutory rape. Id. at 51. Accordingly, circumstances constituting a first-degree statutory rape conviction do not automatically satisfy the necessary requirements for a forcible rape conviction. Id. Therefore, it does not follow that statutory sex crimes are specific instances of what Treta deems the more general crime of forcible rape. Id.


It was never the intention of the Legislature to outlaw all actions in which sexual intercourse is an element. As a matter of fact, where consent could not be given or where it was coerced as in cases of <mask>, rape or where there was a fiduciary relationship between guardian and ward, there was always an action for damages on the case. (See Disler v McCauley, 66 App Div 42.) The Heart Balm Act was never intended to outlaw these nonconsensual causes of action.


Balbirnie raises two points on appeal. In his first point, Balbirnie challenges the sufficiency of the evidence to support his felony murder conviction, arguing that Victim's death did not come about "as a result of the perpetration" of second-degree statutory rape-the underlying felony. In his second point, Balbirnie argues that the State bore the burden and failed to prove that Balbirnie knew Victim was under the *708age of 17, as required to support his conviction for second-degree <mask>.


<mask> as defined by the Penal Law of the State of New York prior to April 1, 1950 provided: “ a person who perpetrates an act of sexual intercourse with a female, not his wife, under the age of eighteen years, under circumstances not amounting to rape in the first degree, is guilty of rape in the second degree ”.


In 2012, the State charged Wagner with four counts of first-degree rape, four counts of first-degree <mask>, one count of first-degree child molestation, two counts of first-degree sodomy, two counts of first-degree statutory sodomy, and two counts of third-degree assault. The charges involved Wagner using force and other physical restraints to sexually violate his daughter's friends between 2010 and 2011. Wagner pleaded guilty to all charges. The circuit court sentenced Wagner as a dangerous offender to ten years in prison.


This casé arises from an August 12, 2000 sexual encounter between the then 15-year-old plaintiff and defendant Barsky. Barsky had been plaintiffs social studies teacher at a New York City public school during the preceding school year. Although Barsky and plaintiff met frequently in school outside of class, there is no evidence of any inappropriate contact prior to the subject encounter. Plaintiff spent the 2000 summer vacation at her grandmother’s home in upstate New York. Barsky, who was supposedly planning to see his mother in Massachusetts, detoured to visit plaintiff. Plaintiff and Barsky arranged to meet, but plaintiff did not tell her grandmother about her plans. Plaintiff and Barsky met, drove around for a while, and then went to a hotel, where they had sexual intercourse. Although plaintiff acknowledges that the tryst was “consensual,” she was legally incapable of consent. Barsky was charged with <mask>, and eventually pleaded guilty. He is no longer a teacher.


The girl now seeks the return of her child, and prays that her instrument of surrender be set aside. After a plenary hearing, the following facts emerge: During her confinement in the foundling hospital her family rarely visited or comforted her. Her mother, who was most sensitive to the girl’s predicament, came infrequently and displayed nothing but recrimination towards her daughter. In fact, the mother’s implacable hostility towards the natural father of the infant in question resulted in his arrest for <mask> and completely cut off any possibility of a marriage between him and the girl. It seems that this mother, married for many years to an invalid, and having been forced to work in order to preserve her household, had unfortunately become embittered in many of her *964relationships, particularly with reference to her youngest daughter, the petitioner herein. Yet, she was and is a good woman, iron-willed and well intentioned.


The final article by Seto, Hanson and Babchishin (the Seto article) examines prior contact offenses and re-offense rates for <mask> offenders through two meta-analyses. The *442recidivism study found that 4.6% of online child pornography offenders committed a new sexual offense during a 1.5- to six-year follow-up period. Two percent committed a contact offense and 3.4% committed a new child pornography offense. The meta-analysis included nine studies with 2,630 offenders. The authors caution that although recidivism rates for online offenders appear to be low, the time period measured in the studies was small and the statistics are subject to the caveat that sex crimes are typically underreported. The authors concluded, however, that “online offenders rarely go on to commit detected contact sexual offenses” and that the recidivism rates for this group were significantly lower than for other sex offenders. The study also indicated that “online offenders who had no history of contact offenses almost never committed contact sexual offenses.” (Seto article at 136-137.) Finally, the Position Statement notes as a departure consideration whether an offender has had previous “allegations regarding sexual contact with children.” Prior sex offenses against children are already scored by the RAI. The Position Statement, however, apparently now provides that an “allegation” regarding a child contact offense should also be used to inform departure determinations. It is not clear what degree of reliability such an allegation would be required to have in order to be considered relevant in making such a decision.


12. family was living in the Villa Avenue apartment building. That Karen saw defendant, while they were living in the Villa Avenue apartment building, naked inside Jane’s room in the middle of the night touching Jane’s arm was fully consistent with how, where, and when Jane described defendant’s abuse occurring. Moreover, defendant’s nudity on that occasion permitted a reasonable inference he harbored a lewd intent—particularly given Jane’s age and the circumstances. Defendant was not merely walking around his home naked at night, as he suggests; rather, he was naked inside the bedroom of his pre-teen stepdaughter. A trier of fact could reasonably infer that, absent some dire emergency that precluded the opportunity to don any kind of clothing (of which there was no evidence), there would be no reason for defendant to be inside Jane’s bedroom naked and touching her arm other than for a lewd intent. The evidence of defendant’s <mask> possession only strengthened the inference of lewd intent in the bedroom incident Karen witnessed, and it further corroborated Jane’s allegations. Evidence of sexual misconduct admissible under Evidence Code section 1108 may be used to corroborate a victim’s allegation and thereby satisfy section 803(f). (Ruiloba, supra, 131 Cal.App.4th at p. 682.) “‘[T]he precise probative value to be accorded this evidence will depend on various considerations, such as the frequency of the [other] acts and their similarity and temporal proximity to the charged acts.’” (Ibid, quoting People v. Yovanov (1999) 69 Cal.App.4th 392, 404.) Corroboration of the “victim’s allegation” under section 803(f) to toll the statute of limitations “can, and often does, consist of a description of multiple instances of abuse, often spread over years of time in the case of resident child molesters .… To the extent an uncharged act shows a defendant’s propensity to commit sexual offenses against a child, that can corroborate all of the charged offenses even if it does not particularly corroborate any specific offense.” (Ruiloba, supra, 131 Cal.App.4th at p. 683.) “Evidence of a person’s propensity to do what the victim has alleged corroborates the victim’s allegation.” (Ibid., citing People v. Mabini (2001) 92 Cal.App.4th 654, 659.)


"[I]n regards to the motion to suppress pursuant to ... [s]ection 1538.5, ... it's clear that the Fourth Amendment at least does apply. However, ... because there is a civil commitment of [defendant]-and it's my understanding that was pursuant to Welfare and Institutions Code [s]ection 6604-the Court finds that [defendant], because he was committed under that code section, it's a civil commitment and there is a significant reduction in any expectation of privacy. In regards to what that expectation of privacy would entail, it seems to me that there is [an] expectation of privacy regarding ... some aspects of his treatment. However, in regards to his living area, ... the Court has to take into consideration the type of facility.... [T]his is a maximum security state hospital. It's located within a state prison. A witness testified as to what is involved in gaining access to the facility, specifically the state hospital. The Court is taking that into consideration. The Court is also taking into consideration the notice or signs that have been posted or are posted ... within the facility and outside the facility. "In regards to the search for cause, ... it doesn't appear that there are any cases that define what search for cause means, whether that's reasonable suspicion or probable cause. Even if the Court were to use the probable cause standard which is higher than reasonable suspicion, in this case, given the strong security interest of the institution in regards to contraband, ... in this case the <mask> and attempts to keep that outside of the facility, those outweigh any issues regarding the officer's ability then to search for those items. And in this case, they had that probable cause based on the statements of Mr. Rudd, the evidence that was observed by staff, and the prompt action by the state police to then go and obtain whatever evidence they were able to locate based on that information, and that information *910pointed to [defendant]. And so the officers did have probable cause to then seize those items. And then subsequently, ... the officers did obtain a search warrant to actually view the items that were found in [defendant]'s possession. "So in light of the significant reduced expectation of privacy that [defendant] would have, the Court at this time finds no violation of the Fourth Amendment. Therefore, the Court will deny the defense motion to suppress the evidence that was initially seized and then the evidence that was obtained as a result of any subsequent search warrant as to the actual items and images that were depicted on any media device." b. Standard of review.


characters that, when plugged into the Internet, could lead to questionable content.” Def.’s Sentencing Mem. 2. The district court did not rely upon URLs or hyperlinks in determining Hennings’s offense level, however. The government submitted an affidavit of the case agent who had personally reviewed the contents of the Dropbox account. The affidavit explained that the account stored “approximately 136 Gigabytes of content,” including thousands of images and videos of <mask>, which “were not ‘URLs’, but actual files.” The district court thus did not clearly err in finding that Hennings’s Dropbox account stored “actual images and videos,” not just URLs or hyperlinks.2


– 11 – 2719 “motive, intent and absence of mistake or accident” in a prosecution related to the possession of <mask>. On appeal, Lee does not challenge the trial court’s finding that the charges were “of the same or similar character.” However, he does challenge the court’s finding of cross-admissibility. According to Lee, the trial court’s Rule 404(b)(1) ruling was erroneous and the suggested reasons for admissibility were a guise to admit prohibited propensity evidence. Lee also argues that the trial court erred in listing multiple grounds for admissibility without specifying which ones actually applied and why they applied. We agree with Lee that the trial court’s ruling could have been clearer. As we have stated in the context of Evidence Rule 404(b)(1), simply reciting one or more of the purposes contained in the rule does not fulfill the trial court’s duty to ensure that evidence is actually relevant and admissible for the proposed purpose.26 Instead, the trial court must closely evaluate each of the proposed purposes in their technical sense to ensure that the evidence has a case-specific, non-propensity relevance.27 We disagree with Lee, however, that all of the stated grounds for admissibility were erroneous. One of the stated grounds for cross-admissibility was to prove “absence of mistake or accident.” On appeal, Lee points out that, at trial, he did not defend against either of the charges by claiming mistake or accident. But Lee ignores the context in which the trial court made its pretrial ruling on Lee’s motion to sever. Lee filed his motion to sever early in the case, almost three years before trial occurred. At the time the trial court ruled on the motion, the parties agreed that the trial court could base its ruling on the complaint and charging documents before it.


See United States v. Emmert , 825 F.3d 906, 909 (8th Cir. 2016) (in child-pornography prosecution, affirming admission of evidence of defendant's prior sexual abuse of two minor females; "Emmert's sexual abuse and <mask> victims were similar in age, and Emmert performed or possessed images depicting similar explicit acts on each victim."); United States v. Rodriguez , 581 F.3d 775, 796 (8th Cir. 2009) ("In both cases, Rodriguez approached a young woman by herself, forced her into a vehicle under threat of violence, and sexually assaulted her. Here, the government alleged Rodriguez approached Sjodin while alone in a parking lot, abducted her at knife point, forced her into a car, and sexually assaulted her before murdering her."); United States v. Meacham , 115 F.3d 1488, 1495 (10th Cir. 1997) ("the stepdaughters' testimony suggests a similar pattern of sexual abuse of female minor relatives made possible by exploitation of familial authority"); State v. George A. , 308 Conn. 274, 63 A.3d 918, 933 (2013) (despite age difference between victims of charged and uncharged offenses, affirming admission of evidence of uncharged offense because "the trial court reasonably exercised its discretion based on the fact that the record revealed that both E and the victim were females, residing in the defendant's household, whom he had directed to engage in [fetishistic sexual activity involving animal cruelty] that are so sexually unique as to constitute a virtual 'signature' of his propensity to engage therein."); State v. Most , 815 N.W.2d 560, 566 ¶ 21 (S.D. 2012) (finding sufficient similarity between uncharged and charged offenses where defendant "was always much older than his victims," did not live with any of his victims but had a paternal or grandparental relationship with them, and the defendant "gave all three victims gifts and money following the abuse; he abused all three victims in bedrooms or cars; and he abused his victims when they were about four years old to eleven years old"); State v. Antonaras , 137 Conn.App. 703, 49 A.3d 783, 794 (2012) (affirming admission of evidence of prior sexual offenses where "the defendant engaged in a similar grooming process" in both the charged and uncharged offenses; "[t]he defendant also engaged in similar initial sexual overtures" in each case; "the defendant's relationship with [the current victim] closely resembled his relationships with" prior victims; and "[a]ll three boys were similar in age when they first met the defendant"); State v. Armstrong , 793 N.W.2d 6, 13 ¶ 18 (S.D. 2010) ("Because Armstrong's victims were similar ages when the offenses occurred, the requisite degree of similarity existed in this case."); State v. McGuire , 135 Idaho 535, 20 P.3d 719, 723 (Idaho App. 2001) ("Each of McGuire's victims testified about foot rubbing sessions, and three of the four indicated that this conduct had escalated into sexual abuse. Three of the four victims testified that McGuire kissed them on the neck during these encounters and manually fondled and touched them in the vaginal area. All of these incidents of misconduct were committed by McGuire against his own female children while living as minors in his household."); Smith v. State , 745 So.2d 284, 289-90 (Ala. Crim. App. 1998) ("With regard to the alleged dissimilarity of the offenses, the testimony established that Burnum Gilbert Smith engaged in sexual intercourse with his two natural daughters, sexual intercourse with his older stepdaughter, sodomy with his stepson, and simulated intercourse with his infant stepdaughter. These acts clearly are similar, particularly in light of the victims' age at the time of the offenses. All of the acts occurred in the Smiths' home, while the children were living with him; the children's mothers were aware of his actions; and the mothers also were present during most of the incidents.").


The County Court’s designation of the defendant as a level two sex offender under the Sex Offender Registration Act (hereinafter SORA) was supported by clear and convincing evidence (see Correction Law § 168-n [3]; People v Pettigrew, 14 NY3d 406, 408 [2010]; People v Mingo, 12 NY3d 563, 571 [2009]; People v Atkinson, 65 AD3d 1112 [2009]; People v Bright, 63 AD3d 1133 [2009]). Contrary to the defendant’s contention, in scoring the defendant pursuant to the SORA risk assessment instrument, the court adequately set forth its findings of fact and conclusions of law, and properly assessed 30 and 20 points under risk factors 3 and 7, respectively (see Correction Law § 168-n [3]; People v Johnson, 11 NY3d 416, 419-420 [2008]; People v Poole, 90 AD3d 1550 [2011]; People v Harding, 87 AD3d 627 [2011]; People v Bretan, 84 AD3d 906 [2011]; People v Stella, 71 AD3d 970 [2010]; People v Perahia, 57 AD3d 865 [2008]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10, 12 [2006]). Contrary to the defendant’s contention, the position statement issued by the Board of Examiners of Sex Offenders in June 2012 does not depart from the holding in People v Johnson (11 NY3d 416 [2008]), that offenders convicted of possession of <mask> are properly scored under risk factors 3 and 7.


The defendant possessed <mask>. Unlike many cases involving the possession of child pornography, this defendant progressed into touching and abusing real children. His conduct was predatory in nature. He used his authority as a counselor to set up situations where he could isolate his victims to sexually abuse them. He preyed upon one of the most vulnerable groups in our society, young female children.


second video, victim 2 is standing in the shower and Stewart pulls the shower curtain back, exposing her. In the third, victim 2 is laying in the bathtub, and the video focuses on her genitalia. In an interview with law enforcement, Stewart admitted that he learned in October 2017 that Edwards had been sexually abusing her son, victim 1, since he was eight years old. After Stewart learned about this, Edwards offered to “set Stewart up” with her daughter, victim 2. Stewart further admitted that he made videos of Edwards performing oral sex on victim 1, and those videos were for his and Edwards’s personal gratification. Stewart also admitted that he gave verbal direction to Edwards and victim 1 in one of the sexually explicit videos and that he had shown victim 2 his penis on multiple occasions. B. Indictment and Guilty Plea An indictment charged Stewart with two counts of production of <mask>, in violation of 18 U.S.C. § 2251(a), (e) (Counts 1 and 2), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2) (Count 3). Count 1 corresponded to the videos of victim 1, and Count 2 corresponded to the videos of victim 2. Pursuant to a plea agreement, Stewart pled guilty to Count 1, and the government agreed to move to dismiss the remaining counts at sentencing. The district court found that Stewart was competent to enter a plea and that his guilty plea was knowing USCA11 Case: 21-11411 Date Filed: 02/04/2022 Page: 5 of 11


results” because criminal liability would be “subject to the whims and aggressiveness of a particular police officer or the inherent randomness of the software search tool used” and would potentially allow “two defendants who engage in the identical conduct . . . [to] face different levels of criminal liability depending upon how many times a particular file was downloaded.” Again, we disagree. Declining to find that appellant committed multiple violations of distributing <mask> would run counter to the purpose of the obscenity statutes: to prevent the abuse and sexual exploitation of children and extinguish the market for child pornography. (See Cochran, supra, 28 Cal.4th at p. 402.) As the Attorney General explains, each time a file containing distinct pornographic material is downloaded both adds to the child pornography market and perpetuates the abuse of the victim. This is particularly true in the context of peer-to-peer sharing of torrent files on a protocol such as BitTorrent, which allows for the widespread dissemination of child pornography. As Sergeant Servat testified, the technology allows users to share massive amounts of illicit data, and it incentives users to share files. Simply put, “the software . . . wouldn’t work without sharing.” The evidence established that appellant spent 16 hours a day on his computer, seven days a week, and actively used BitTorrent to amass child pornography. The jury was told that the BitTorrent display on a user’s computer shows when a file is downloaded, and could have reasonably inferred from the evidence that appellant saw when a download of his obscene files was underway and consciously allowed it to happen. On this record, we find that each download of a torrent file which contained new or different obscene matter of minors performing or simulating sex acts was a completed distribution that supports


– 13 – 2719 We begin our analysis by noting that the risk of unfair prejudice in these situations is very real. Introducing evidence of <mask> to show a defendant’s sexual interest in young children is conceptually not that different from introducing evidence of a defendant’s propensity to commit sex crimes against children.29 The evidence also has the potential to be highly inflammatory and may be used improperly by the jury as evidence of the defendant’s bad character.30 We therefore caution trial


the pornographic image is created, not when it is disseminated. (Cochran, supra, 28 Cal.4th at p. 404.) Here, in contrast, “consideration” has a common dictionary definition that means “payment [or] recompense” (Webster’s 10th New Collegiate Dict. (1999) p. 246). Unlike the producers of <mask>, section 311.2, subdivision (b) requires that we look to a distributor’s intent at the time the obscene matter is distributed, exhibited, or exchanged for commercial consideration. As discussed above, a practical understanding of the phrase “commercial consideration” is that the defendant was engaged in a commercial or profitmaking enterprise when he or she received recompense for the dissemination of obscene matter involving sexual conduct by minors. Finally, for the reasons discussed at length, an interpretation of commercial consideration that signifies an intent to trade obscene material with others would render words and phrases in section 311.2, subdivision (b) superfluous to one another, and make the conduct criminalized in this felony provision indistinguishable from the conduct proscribed in the wobbler statute, section 311.1, subdivision (a). We must give independent meaning and effect to the various words and statutes that govern the criminal act of distributing obscene matter showing sexual conduct by children. B. Instructional Error Having concluded that the element of commercial consideration cannot simply mean an intent to trade or induce others to trade in pornographic material over the Internet, we must determine whether the trial court’s jury instruction of section 311.2, subdivision (b) amounted to reversible error.5


The motion court denied all of Goodwater's claims. In this case the judge who presided over the trial was the same judge who heard the motion in this matter. The *53motion court found that the record did not indicate that the trial court enhanced Goodwater's sentence based on his decision to exercise his constitutional right to a trial. The motion court found the sentence was justified by other reasons and there was no direct connection between any comments related to the viewing of the pornographic evidence at trial and the court's ultimate sentence. Regarding claims 8/9(c) and 8/9(d), the court found its statements were merely responding to statements Goodwater's trial counsel had made and Goodwater's sentence was not the maximum available and was less than recommended by the State. Regarding claims 8/9(e), the motion court found trial counsel had a sound strategy of not wanting to irritate the jury with too many objections during closing argument. Regarding claims 8/9(f) and 8/9(g), the motion court found that the current version of the <mask> statute makes it clear that "[a] person who has committed the offense of possession of child pornography is subject to separate punishments for each item of child pornography or obscene material possessed by the person".


Defendant has thus failed to establish that Officer Santilli’s personal knowledge of the crimes alleged was limited to the viewing of the initial illicit image. Even if he had merely read a report from United Online and had never actually read the specific email messages, he would have learned from the report that the email account associated with defendant was an active site exchanging <mask>. Such information was valuable as a bridge in a trail of evidence reflecting continuing criminal activity and eliminating the possibility that the initial uploading was inadvertent.


Contrary to the defendant’s contention, in light of the large quantity of <mask> recovered from the defendant’s possession and the nature of that material, which included, among other things, images and videos depicting the torture of children, the County Court properly determined that there were aggravating factors not adequately taken into account by the SORA guidelines (see People v DeDona, 102 AD3d 58, 68 [2012]; People v Wyatt, 89 AD3d 112, 121 [2011]; accord Board of Examiners of Sex Offenders, Scoring of Child Pornography Cases Position Statement [June 1, 2012]). Upon making such a determination, the court providently exercised its discretion in granting the People’s application for an upward departure from the presumptive sex offender risk level (see People v Voltaire, 112 AD3d 601 [2013]; cf. People v Gillotti, 104 AD3d 1155, 1155 [2013], lv granted 21 NY3d 858 [2013]; People v Poole, 90 AD3d 1550 [2011]; People v Bretan, 84 AD3d 906, 907 [2011]).


–4– 2719 grand jury indicted Lee on two counts of first-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor.3 A grand jury also indicted Lee on two counts of possessing <mask>, predicated on two images found respectively on each of Lee’s computers.4 The State joined the counts together and presented the case at a single jury trial. The jury failed to reach a verdict on one count of first-degree sexual abuse of a minor for conduct involving D.A. but found Lee guilty of the remaining eighteen counts. At sentencing, the trial court ruled that Lee’s previous military adjudication qualified as a prior felony conviction for presumptive sentencing purposes. As a second felony offender, Lee faced a minimum presumptive sentence of just over 75 years.5 The court sentenced Lee to a composite term of 115 years to serve with no time suspended. This appeal followed.


Although this Court has never addressed the meaning of "lewd exhibition," several intermediate appellate courts in Texas have done so, and all of them have utilized the Dost factors to assist them in evaluating whether an image is a "lewd exhibition" for purposes of the <mask> laws. In Perkins v. State ,65 the First Court of Appeals held that videos of a teenage girl dressing and undressing in her bedroom were "lewd" because they reflected an "invasion of personal privacy ... and the exploitation of an innocent child victim."66 The First Court of Appeals stated that "jurors were permitted to rely on their common sense to conclude that these images of a teenage girl-who had *142undressed in the belief that she had privacy in the bathroom-were created and preserved to appeal to deviant and voyeuristic interest of the viewer, and thus the images were intended or designed to elicit a sexual response."67 Citing to the Dost factors, the First Court of Appeals held that,


While the court concludes that the defendant’s admission to sexual intercourse with at least five children alone warrants an upward departure, there are additional significant aggravating factors warranting such a departure.13 Indeed, as specifically outlined in the Board’s position statement, the court finds that an upward departure is warranted based on the nature of the images possessed by the defendant, including a video clip showing the sadomasochistic abuse of a young girl, and evidence of the defendant’s deviant sexual arousal towards children as demonstrated by his online conversations with an undercover detective, in which he invited the detective to masturbate together while watching <mask>.


– 22 – 2719 purposes of presumptive sentencing is a question of law that this Court reviews de novo.45 Here, as Lee concedes, both federal law and Alaska law criminalize the knowing possession of <mask>.46 Both federal and Alaska law also have a similar definition of what constitutes child pornography.47 Lee nevertheless argues that the statutes are dissimilar because (according to Lee) federal law does not require that the defendant know that the pornographic material involves a person under eighteen years of age and federal law also prohibits possession of computer-generated images that do not involve actual children. But, as the State points out, neither of these propositions is true. In United States v. X-Citement Video, Inc., the United States Supreme Court interpreted the federal child pornography statute to require proof that the defendant knew that the material in his possession “involved the use of a minor.”48 Likewise, in Ashcroft v. Free Speech


Celis-Garcia is distinguishable here. Contrary to Defendant's assertion, this is not a multiple acts case, but rather, is a case concerning a proscribed course of conduct. "A person commits the crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and ... [s]uch person has been convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony." Section 571.070.1(1). "Crimes of *189possession are generally recognized in our criminal law as continuing offenses because '[t]he possession is a continuing offense, lasting as long as the act of possession does.' " State v. Wright, 484 S.W.3d 817, 820 (Mo. App. E.D. 2015) (quoting WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW Sec. 6.1(e), n. 46 (2d ed. 2003) ). "This is because possession [is] not terminated by a single act or circumstance but [is] committed as long as the proscribed conduct continues." Id. (internal quotes and citation omitted). As such, Missouri and federal courts have held that several crimes of possession are continuing course of conduct offenses. See ibr.US_Case_Law.Schema.Case_Body:v1">id. ("[P]ossession of <mask> is a continuing offense because it does not cease when the defendant acquires the pornography, but rather when the possession terminates."); State v. Robinson, 710 S.W.2d 14, 16 (Mo. App. W.D. 1986) ("possession of the knife ... is a continuing charge"); State v. Sampson, 408 S.W.2d 84, 89 (Mo. 1966) ("possession of the amphetamine was a continuing offense"); U.S. v. Fleischli, 305 F.3d 643, 658 (7th Cir. 2002) ("Possession of a firearm is a continuing offense which ceases only when the possession stops.") (superseded by statute on other grounds).


First, a debilitating medical condition may support a downward departure as it tends to suggest that an individual is less likely to offend. (See People v Stevens, 55 AD3d 892 [2d Dept 2008]; People v Adams, 44 AD3d 1020 [2d Dept 2007].) Such is not necessarily the case in possession of <mask> cases, where no physical activity is required. (See People v Curthoys, 77 AD3d 1215 [3d Dept 2010].)16 So, too, while advanced age may support a downward departure, age alone is not dispositive. (See People v Burton, 71 AD3d 468 [1st Dept 2010]; People v Johnson, 44 AD3d 571 [1st Dept 2007]; People v Harrison, 74 AD3d 688 [1st Dept 2010]; People v Beyah, 76 AD3d 917 [1st Dept 2010].) Indeed, in the instant matter, the defendant committed the offenses at age 49. At the time of the hearing, he was 55 years old, hardly the “advanced age,” he claims. Quite simply, in the context of this child pornography case, the defendant has failed to demonstrate that his age warrants a downward departure. (See People v Gajadhar, 103 AD3d 572 [1st Dept 2013]; People v Thomas, 105 AD3d 640 [1st Dept 2013]; People v Cabrera, 91 AD3d 479 [1st Dept 2012].)


While in prison, Reddig completed the Missouri Sex Offender Program ("MOSOP"), and was released on parole in 2013. He was allowed to move to Kansas to live with his aunt and uncle. While in an outpatient sex offender treatment program, Reddig admitted to viewing and masturbating to pornography of children as young as four. His treatment was increased, but he continued looking at <mask> for children then as young as age two. Reddig was terminated from outpatient treatment due to concerns that he was going to reoffend.


It does, however, obviously have a relationship to the harm caused by these offenses. The more images an offender possesses, the more the offender has contributed to creating a market for the sexual abuse of children. The RAI, however, does not and was not designed to effectively measure the relative degrees of harm caused by <mask> offenders. It provides 20 points for two victims and 30 points for three or more victims. In the court’s experience, however, child pornography offenders are not typically prosecuted for having one or two child pornography images. The usual case, rather, is one where there are large numbers of such images. Thus, in the majority of cases, offenders have been scored with 30 points. The score has functioned less as a measure of how harmful a child pornography offender’s crimes are when compared to like offenders and more as an assessment that the demand created by such crimes generally promotes the sexual abuse of multiple children. Since New York’s child pornography statute was enacted after the RAI was created, however, none of these impacts could possibly have been intended by the instrument’s drafters.


The text of section 13031(a) imposes a reporting duty on a covered professional “who, while engaged in a professional capacity or activity described in subsection (b) . . . , learns of facts that give reason to sus- pect that a child has suffered an incident of child abuse.” “[C]hild abuse,” in turn, is defined as “the physical or mental injury, sexual abuse or ex- ploitation, or negligent treatment of a child.” 42 U.S.C. § 13031(c)(1). The statute further provides that “the term ‘sexual abuse’ includes the employment [or] use . . . of a child to engage in . . . sexual exploitation of children,” and that “the term ‘exploitation’ means <mask> or child prostitution.” Id. § 13031(c)(4), (6). Under these definitions, cov- ered professionals must report suspected abuse if they learn of facts giving reason to suspect that a child “has suffered an incident of [em- ployment or use to engage in child pornography],” 7 or “has suffered an incident of [child pornography].” Although section 13031 does not define the term “child pornography,” it is defined elsewhere in the U.S. Code as any visual depiction, . . . whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—


On 12/30/12 the above subject was confronted by his wife after she found naked pictures of her daughter on his iPad. Above subject admitted to hiding a web cam in her daughter's bedroom. The above subject then started to delete the pictures off the iPad and he destroyed the web cam. During the course of the investigation detective located <mask> that above subject was in possession of. Child pornography was several pictures that were on 3½" floppy discs. Steele retained counsel and entered a not guilty plea.


and 10 videos of <mask> on one of appellant’s computers, a Sony laptop. BitTorrent and encryption programs had been installed on appellant’s other computer, a Hewlett-Packard (HP) laptop. A digital forensic examiner found evidence that torrent files containing child pornography had been downloaded to the HP laptop at some point, including the files that appellant had shared with Sergeant Servat. He also found a large encrypted file on the laptop approximately 100 gigabytes in size, capable of holding 50,000 images. Appellant’s search history on the Google search engine was also admitted into evidence, and included terms such as “sad girls spanked TGP,” “rape TGP,” “cruel TGP,” “microbikini preteen,” “microbikini child,” “microbikini baby,” and “amateur preteens.” Other child-pornography- related search terms had been bookmarked in a web browser. B. The Defense Case Appellant testified he had approximately 25 years of experience in computer programming. He spent about 16 hours a day, seven days a week, on his computer. Appellant was well versed in peer-to-peer networks. He admitted he used a BitTorrent network to download child pornography. When appellant installed BitTorrent on his computer, he was aware that in participating in a peer-to-peer network, “with the ability to download comes the ability to upload.” He knew that his software client’s settings defaulted to enable other users to access the contents of his shared folder, but claimed he did not intend to share any of the child pornography and forgot to turn off the default setting. Appellant admitted he had obtained hundreds of thousands of images of child pornography. But he claimed he had downloaded the material as part of a project to develop an algorithm that would determine if individuals


Detective Sean Pierce of the San José Police Department investigated <mask> on the Internet. Pierce identified an IP address (Internet Protocol address) used by a Comcast account sharing child pornography online. An IP address is an identifier assigned to a device on a network, such as a router, computer, or printer. The IP address allows the device to be identified and located by other devices. When a user connects to the Internet through a router, the user's Internet service provider (e.g., Comcast) assigns an IP address to the user's router.


There is ample information available to debunk the myth that those who view <mask> present no risk of personally engaging in such activity. The purpose of the Sex Offender Registration Act is to protect the community, especially its children, from sexual offenders. To hold that the children whose sexual abuse is recorded and disseminated to those who wish to view it are not victims flies in the face of the legislative purpose. Accordingly, the court finds that the children shown being sexually abused in the images possessed by Mr. Fitzpatrick are victims of his crime. The Sex Offender Registration Act risk assessment instrument will so reflect.


“A monetary penalty under the AVAA is separate and distinct from restitution.” United States v. Madrid, 978 F.3d 201, 205 (5th Cir. 2020). Restitution requires identification of a victim and proof of losses. 18 U.S.C. § 2259(b)(2). However, a special assessment does not. Rather than going to individual victims, all assessments “collected under” the AVAA “shall be deposited into the <mask> Victims Reserve” fund. 18 U.S.C. § 2259B(a).


Finally, defendant’s attempt to liken this situation to the prewarrant confirmatory searches condemned in Murray v United States (487 US 533, 540 [1988]) is without merit. As stated above, when the police with Mulrooney opened up the “xxx” and “MPG” file folder directories on December 10th, they necessarily first encountered a table of contents page replete with *645image file titles expressly announcing the presence of <mask>. Because Mulrooney had already confirmed for the police the results of his private search on December 7th, i.e., that indeed the titles were accurate for the many image files he opened on that earlier date, defendant retained no expectation of privacy in the remaining images of child pornography in those two file folders under the Jacobsen-Walter-Adler rationale (see United States v Jacobsen, 466 US 109 [1984]; Walter v United States, 447 US 649 [1980]; People v Adler, 50 NY2d 730 [1980]). Accordingly, the police were “lawfully present,” for purposes of the plain view doctrine (1 Wayne R LaFave, Search and Seizure: A Treatise on The Fourth Amendment § 2.2, at 395, and n 1 [3d ed 1996]), or in other words “they had a right to be where they were when they saw” (People v Brown, 96 NY2d at 88-89) the two file folder directory or table of contents pages. The case of Murray v United States (supra; see also, People v Burr, 70 NY2d 354, 362 [1987]) involves police acquisition of probable cause at a time when they had no right to be where they were, e.g., an illegal entry during which drugs are observed, a subsequent retreat from the premises to obtain a search warrant (leaving the contraband within), and a subsequent search pursuant to the warrant issued solely on the basis of observations made during the illegal entry. Murray and its progeny plainly have no application to an official search of items with respect to which defendant no longer enjoys a reasonable expectation of privacy because of an earlier private search. Otherwise, the JacobsenWalter-Adler line of cases would be meaningless.


In a March 22, 2012, interview with Garza and Sergeant Jerry Duvall, defendant stated he woke up on March 21, 2012, at approximately 8:30 p.m. and saw "a small clear case containing two ... memory cards [i]n it." He "took them out of the case to see what was on them," "put them in his DVD player," and observed <mask>. At the same time, CSH police entered the dormitory. Defendant "put [the memory cards] in a pocket because he didn't know what to do when the officers entered the room." On June 6, 2012, Duvall executed a search warrant, examined the memory cards, and found child pornography.


Pursuant to this court’s decision in State v. Crawford (202 Conn. 443), the issuance of an arrest warrant within the time period prescribed by the applicable criminal statute of limitations commences a prosecution for purposes of satisfying that statute of limitations, so long as the warrant is executed without unreasonable delay. The state, on the granting of permission, appealed from the trial court’s dismissal of an information charging the defendant with possession of <mask> in the first degree. In 2009, the police executed a search warrant at the defendant’s residence and seized two of his com- puters. Thereafter, the defendant signed a sworn statement in which he admitted to possessing child pornography. The defendant was not arrested at that time but was informed by the police that he would be arrested as soon as a forensic examination of his computers was completed. In 2011, the defendant moved to California. In 2013, after the state forensic laboratory issued a report confirming the presence of child pornography on the computers, and after the police confirmed the defendant’s address in California, an arrest warrant for the defendant was issued. Between 2009 and 2018, the police, despite having the defen- dant’s cell phone number, never attempted to communicate with the defendant about the status of his case. In 2018, nearly five years after the warrant was issued and more than three years after the applicable statute of limitations ((Rev. to 2009) § 54-193 (b)) purportedly expired, the defendant was arrested and charged with possession of child pornog- raphy in the first degree. Thereafter, the defendant filed a motion to dismiss the information, claiming that the delay in the execution of the arrest warrant was unreasonable under Crawford and, therefore, that his prosecution was time barred. In response, the state argued that, because the defendant had moved to California in 2011, the tolling provision of § 54-193 (c), which extends the time within which an infor- mation may be brought with respect to a person who fled from and resided outside of the state after the commission of the offense, tolled the limitation period within which the warrant could be executed. In granting the defendant’s motion to dismiss, the trial court concluded that the tolling provision was inapplicable because the arrest warrant was issued within the limitation period, the defendant had not fled the state within the meaning of the tolling provision, the defendant met his burden of demonstrating his availability for arrest, and the state failed to meet its burden of demonstrating that the nearly five year delay in the warrant’s execution was not unreasonable under Crawford. On appeal, the state, conceding that the five year delay in the execution of the arrest warrant was unreasonable, claimed that the trial court nevertheless incorrectly concluded that the tolling provision of § 54-193 (c) was inapplicable in light of the fact that the arrest warrant was issued within the limitation period. Held that the trial court correctly concluded that the tolling provision of § 54-193 (c) was inapplicable, as that provision tolls the limitation period solely with respect to the time within which a prosecution may be brought and does not purport to address prosecutions, such as the present one, that have already been brought, at which point there is no need for tolling because the statute of limitations has already been satisfied; moreover, contrary to the state’s assertion that this court’s interpretation of § 54-193 (c) penalizes it for obtaining an arrest warrant within the limitation period, this court’s case law indicates that, so long as the warrant is executed without unreasonable delay, the state can continue to prosecute the defendant as soon as it is able to locate and arrest him. Argued April 29—officially released October 1, 2021**


*706The court has located a case which supports the People’s position on the overbreadth issue, United States v Juarez (2013 WL 357570, 2013 US Dist LEXIS 11869 [ED NY, Jan. 29, 2013, No. 12-CR-59 (RRM), Mauskopf, J.]). In Juarez police seized the defendant’s cell phone in an arrest for the crime of “unlawful surveillance” under New York law after he placed his cell phone camera under the skirts of women in Union Square Park and recorded them. The warrant to search the phone authorized the seizure of evidence of the unlawful surveillance crime “in the vicinity of 4th Avenue and 14th Street” in Manhattan and unspecified “related crimes, and conspiracy to commit those crimes” which the court found under the warrant had to occur “at a specific location in New York City” (2013 WL 357570, *1, *4, 2013 US Dist Lexis 11869, *3, *12). <mask> was then discovered in the search of the phone.


Regardless of the court’s risk level assessment (whether the court finds the defendant a risk level one or two offender), the People request an upward departure, to risk level three, based upon: (1) defendant’s compilation of numerous <mask> clips into a video that lasts just under three hours; (2) defendant’s rationalization that he was merely addicted to pornography, thereby minimizing his personal responsibility; and (3) defendant’s history of sexual dysfunction, which includes sexual relationships with two separate cousins.


This statute, which was enacted in 1996, is contained in article 263 of the Penal Law (sexual performance by a child). The definitions relevant to Penal Law § 263.16 have been in effect since 1977 when article 263 was enacted. “Sexual performance” is defined as “any performance or part thereof which includes sexual conduct by a child less than sixteen years of age”. (Penal Law § 263.00 [1].) “Sexual conduct” is stated to mean “actual or simulated sexual intercourse, deviate sexual intercourse, sexual beastiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals”. (Penal Law § 263.00 [3].) The statutory definition of “performance” includes a “photograph”. (Penal Law § 263.00 [4].) The required element *252of scienter (“knowing the character and content thereof’) has been incorporated in the <mask> statutes of New York State since 1977. (See, Penal Law § 263.15.)


The defendant was designated a level two sex offender based upon his conviction of promoting an obscene sexual performance by a child and possessing an obscene sexual performance by a child. The defendant contends that he was improperly assessed 80 points by the court, five points more than the 75 points required for adjudicating him a level two sex offender, based upon the number of victims and the fact that children depicted on <mask> accessed by him were strangers to him. Contrary to the defendant’s contention, the assessment of those points was supported by clear and convincing evidence in the record (see People v Johnson, 11 NY3d 416, 422 [2008]; People v Brown, 116 AD3d 1017 [2014]; People v Bretan, 84 AD3d 906, 907 [2011]).


Penal Law § 263.15 is directed against the exploitation of children "as subjects in sexual performances”. (L 1977, ch 910, § 1.) The United States Supreme Court holds that the State has a " 'compelling’ ” interest in " 'safeguarding the physical and psychological well-being of a minor’ ”. (New York v Ferber, 458 US 747, 756-757, supra, citing Globe Newspaper Co. v Superior Ct, 457 US 596, 607 [1982].) Additionally, the court in Ferber found that "[t]he distribution of photographs * * * 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 <mask> must be closed if the production of material *594which requires the sexual exploitation of children is to be effectively controlled.” (Supra, at 759.)


The trial court made several findings of fact supporting quashal. First, the court rejected the assertion that the rear structure was simply a garage: "Had that been the case (i.e. the detached building was simply a garage) to search it would have been reasonable, and indeed compelled by the warrant. The officers, however, discovered that the detached building was plainly a separate residence before the recovery of any of the computers or other evidence containing the <mask> from defendant's detached residence." The court ruled that when police realized the rear structure was a separate residence, the law required them to halt their search and seek an additional warrant under Maryland v. Garrison (1987) 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (Garrison ).


When compared to prior practice, the Position Statement likely will result in more accurate initial scoring determinations. The recidivism rates for <mask> offenders when compared to other sex offenders appear to be low. The Position Statement, however, in this court’s view, continues to leave courts with no useful guidance in determining whether to depart from presumptive RAI scores in setting risk levels.


convict him of three counts: two counts for crimes against JF and one for producing <mask> with KM. Second, he asks for a new trial on the grounds that the district court should have sup- pressed the evidence from the New York and Kentucky searches. Third, he argues that the district court should have granted a mis- trial when it admitted, but then excluded, six images of the girls from the camera’s unallocated space. We address each issue in turn.


18. People v. Buttram (2003) 30 Cal.4th 773, 790; accord, People v. Panizzon (1996) 13 Cal.4th 68, 75–76 (Panizzon).) Even if an appeal goes forward without a certificate of probable cause based upon claims that do not require one, the defendant may not raise additional claims that do require a certificate. (People v. Mendez (1999) 19 Cal.4th 1084, 1104.) Nevertheless, there are two types of issues that may be raised on appeal following a guilty or nolo contendere plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Shelton (2006) 37 Cal.4th 759, 766; People v. Buttram, supra, 30 Cal.4th at p. 780.) C. Analysis Despite his no contest plea, defendant claims he was improperly convicted on count 2 for <mask> possession under section 311.11(c)(1) because that subdivision does not state a substantive offense but is, rather, an alternate penalty provision. The People assert defendant’s failure to obtain a certificate of probable cause under section 1237.5 precludes him from presenting this argument on appeal. The certificate requirements of section 1237.5 are to “be applied in a strict manner.” (People v. Mendez, supra, 19 Cal.4th at p. 1098.) To determine whether an appeal challenging a post-no contest plea sentence requires examining the substance of the claim on appeal: “the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.” (People v. Ribero (1971) 4 Cal.3d 55, 63, superseded by statute on other grounds as stated in In re Chavez (2003) 30 Cal.4th 643, 656.) In other words, the question “is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.” (Panizzon, supra, 13 Cal.4th at p. 76.)


Inspector Hayes began his investigation by entering the America Online “Pre-Teen Room” which provided a forum for “picture trading”. It is unclear whether the participants are meant to be preadolescents or whether the photographs are meant to depict preadolescents or both. (The Pre-Teen Room has since been deleted from the services currently available through America Online.) In his search for <mask>, Inspector Hayes would “log-on” during hours when children would be likely to use the computer: after 3:30 p.m. on weekdays and on weekends. As 13-year-old Tori, he received instant messages from hundreds of adult males from all over the country and the world. Enlisting the assistance of America Online to access subscriber information, he was able to obtain the geographical locations for the participants whose screen identities could well, like his own, be completely fictitious. By obtaining telephone numbers, usually from the computer user himself, prearranged calls were placed by female Detective Karen Gumbs to verify that the computer personality was actually an adult male. Detective Gumbs spoke with men in Washington, Oregon, Texas and New Jersey, as well as defendant in Connecticut. The telephone conversations were sexually explicit and, much like the cyberchats in evidence, included offers to “teach” the purported adolescent concerning sexual activities and to meet with the teen female for such purpose.


be incongruent for the Legislature to apply contract principles to a criminal provision where the object of the agreement and the consideration used to achieve it are both unlawful and preclude the formation of a contract. Furthermore, section 311.2 is part of a broader statutory scheme “aimed at extinguishing the market for sexually explicit materials featuring children.” (People v. Cantrell (1992) 7 Cal.App.4th 523, 540.) It was adopted in its present form, along with section 311.4, as a “ ‘double-barreled legislative attack which treats producers [of child pornography] as child abusers whether or not the material is obscene, and deals with distributors and retailers of obscene “materials depicting minors under [F]irst [A]mendment analysis.’ ” (People v. Cochran (2002) 28 Cal.4th 396, 402 (Cochran).) As the Legislature declared when enacting this urgency legislation: “The proliferation of <mask> and the use of minors as subjects in child pornography pose a serious threat to the health and welfare of a large number of minors in California which necessitates immediate redress.” (Stats. 1977, ch. 1061, § 4, p. 3203.) The Legislature’s purpose in seeking to eradicate the market for child pornography would not be served by limiting the reach of section 311.2, subdivision (b) to the distribution of obscene matter that is, as appellant contends, “induced or caused by promises made by the parties involved and resulting from a bargaining process.” Commercial distributors of child pornography do not necessarily engage in quid pro quo agreements with their customers. For example, a website operator who exhibits child pornography free of charge and yet earns a profit through the Internet traffic generated on the website would not be a commercial distributor under appellant’s construction of the statute. Even though the website operator is distributing or exhibiting child pornography as a commercial or profit-making enterprise,


Williams testified and admitted that he has sexually assaulted children and that he has a problem with seeking out <mask>. He testified that he has never intentionally looked for pornography involving prepubescent children. He stated that he is not still sexually attracted to children and that he has not been since around the time of his arrest. Williams also testified, without objection, that he has been granted parole in his state cases, but he has not been released from confinement. He testified that he is "not at risk of offending," that he "will not reoffend," and that he "will never have another victim." He stated that, upon release, he plans to move to Arizona, where his mother lives, register as a sex offender, and try to get into a sex offender treatment program. He testified that he does not think that he would reoffend if he did not enter a sex offender treatment program, but he acknowledged that "it's a benefit for [him] and for the public" for him to enter such a program.


Inc. (2002) 27 Cal.4th 939, 960 (Kasky).) Commercial speech is “speech which does ‘no more than propose a commercial transaction’ ” (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976) 425 U.S. 748, 762), and is generally associated with a profit motive. (See Kasky, supra, 27 Cal.4th at p. 962 [“commercial speech, being motivated by the desire for economic profit, is less likely than noncommercial speech to be chilled by proper regulation.”], citing Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra, 425 U.S. at p. 772, fn. 24.) Accordingly, even if consideration signifies recompense or payment, such payment must be “commercial” in nature, meaning payment associated with a commercial transaction such as the buying or selling of goods or services or a transaction motivated by economic profit. Read in context, “commercial consideration” cannot reasonably be interpreted to extend to the simple act of trading obscene material with others, because such exchange does not necessarily involve engaging in commerce or a profitmaking enterprise. Trading in illicit material, even if unlawful, can be a noncommercial endeavor. While the Attorney General emphasizes that the <mask> here was traded over the Internet, we fail to see how using this platform to disseminate obscene matter automatically makes it commercial. And, as discussed above, equating commercial consideration with an intent to trade would erase any distinction between the wobbler and felony obscenity laws described above. To harmonize the various statutes governing the criminal distribution of child pornography and best effectuate the Legislature’s intent, we conclude that the element of commercial consideration in section 311.2, subdivision (b) requires proof that the defendant received or intended to receive payment at the time he or she distributed, exhibited or exchanged obscene matter


fines “exploitation”—without any qualification—to include “<mask> or child prostitution,” but defines “sexual abuse” to include “rape, molestation, prostitution, or other form[s] of sexual exploitation of children.” Compare 42 U.S.C. § 13031(c)(6) (definition of “exploitation”), with id. § 13031(c)(4) (definition of “sexual abuse”). We do not think, however, that the statute intends to draw a strong distinction between “exploita- tion” and “sexual exploitation.” The latter phrase is not a defined term. And the statute in other respects seems to treat the two terms as essentially interchangeable. In particular, the definition of “sexual abuse” expressly provides that “prostitution . . . of children” is a form of “sexual exploitation of children,” and the definition of “exploitation” similarly provides that “child prostitution” is a form of “exploitation.” Id. § 13031(c)(4), (6).


Near a television set in the living room, the detectives found more photographs depicting one of the children who had been present when the photographs obtained from the photo lab were taken.7 From a dresser found in the living room, Detective Heavey seized defendant’s passport, Social Security card stub, and some letters. Several pieces of video and still camera equipment were seized from a closet in the living room area. Also, a cardboard box containing numerous pornographic magazines and nine additional “mini-albums” — none of which contained <mask> — was seized from the garage. Various items of clothing were also seized, including a knit *721pink shirt, four pairs of ladies’ underpants, and a lavender nightgown; these articles of clothing were similar in appearance to the items of clothing worn by the child seen in the “Eric” videotape. Also seized from the bedroom were a pair of “camouflage” shorts similar to those worn by defendant in the “Eric” videotape, as well as a tube of surgical lubricant. Defendant was seen to use the lubricant in the course of engaging in a sex act with the male child.


Furthermore, to the extent that the defense suggests that the dicta provided by the Court of Appeals in People v Johnson (11 NY3d 416 [2008]) provides that all defendants who are scored as presumptive risk level two sex offenders under SORA following their conviction of crimes which consisted of their possession of pornographic images of children will uniformly and properly be granted downward departures to risk level one designations, there is absolutely no support for such a reading of the holding or dicta enunciated therein. Rather, insofar as relevant to this branch of the defendant’s argument, the Johnson case simply stands for the proposition that a defendant who has been convicted of a crime involving the possession of child *810pornography may seek a downward departure from his or her presumptive risk level, while noting that the application of points under risk factor 7 to such a defendant “produces a seemingly anomalous result, one the authors of the Guidelines may not have intended or foreseen” (People v Johnson, 11 NY3d at 421). Contrary to the defendant’s contention, the Johnson Court’s holding does not stand for the proposition that a SORA defendant’s application for a downward departure from a presumptive risk level two designation must be granted in all <mask> possession cases irrespective of the showing proffered by the particular defendant at his or her SORA hearing. Rather, it appears that the more well-reasoned approach adopted by SORA hearing courts which have applied the “preponderance of the evidence” standard enunciated in People v Wyatt (89 AD3d at 127-128) when granting a SORA defendant’s application for a downward departure from the presumptive risk level designation in a child pornography possession case is to have relied upon a specific mitigating factor, such as the sex offender’s participation in and response to sex offender treatment programming, before granting an application for a downward departure (People v Antoine, 37 Misc 3d 474 [2012]; People v Yen, 33 Misc 3d 1234[A], 2011 NY Slip Op 52240[U] [2011]).


The police may seize items not specified in the warrant if the warrant authorized the seizure of that type of property. (See, People v Dominique, 229 AD2d 719, 720 [3d Dept 1996] [warrant specifying “ ‘tatooing [sic] equipment’ ” authorized seizure of ink-stained bag and towel; warrant specifying “ ‘red and green piggy banks with change’ ” authorized seizure of coin wrappers].) Once the police saw that the videotape cassettes were surrounded by a plethora of sexually explicit still pictures of children, commingled in a closed metal container, they had reason to believe that the videotapes contained recordings of visual images depicting <mask>. Their suspicions were heightened by defendant’s son’s repeatedly expressed intense desire to obtain the box following his father’s arrest, and by the fact that one of the tapes bore a person’s name, and *726the other was inscribed with an “X,” perhaps alluding to the illicit subject matter contained therein. Also, Detective Heavey’s expert opinion that pedophiles keep “mementos” of their illicit activities lent credence to the belief that the videotapes contained images of the type for which seizure was authorized.


During the course of the instant risk assessment determination proceeding, the People submitted material for the court’s consideration, including the risk assessment instrument prepared by Assistant District Attorney Laura Forbes which was admitted into evidence as People’s exhibit 1, the RAI prepared by the Board which was admitted into evidence as People’s exhibit 2a, the case summary which was admitted into evidence as People’s exhibit 2b, the sex offender designation form which was admitted into evidence as People’s exhibit 2c, a copy of the instant indictment which was admitted into evidence as People’s exhibit 3, a copy of the defendant’s presentence investigation report which was admitted into evidence as People’s exhibit 4, the affidavit of Investigator Richard Corvinus which was admitted into evidence as People’s exhibit 5, and an optical compact disc containing files depicting images of <mask>. In reliance upon their submission of the above-referenced materials and the oral argument they presented, the People submit that the defendant should be designated a risk level two sex offender based upon the allocation of 95 points to his total risk factor score. As proposed by the People, the recommended total risk factor score of 95 points would be derived from the allocation of 30 points pursuant to RAI risk factor 3 “Number of victims,” 30 points pursuant to RAI risk factor 5 “Age of victim,” 20 points pursuant to RAI risk factor 7 “Relationship with victim,” and 15 points pursuant to RAI risk factor 14 “Supervision.” With respect to RAI risk factor 3, the People advance their argument that 30 points should be allocated to the defendant’s total risk factor score thereunder in reliance upon People’s exhibit 3 in evidence, as the grand jury returned the instant indictment upon findings that the defendant knowingly possessed more than three computer files depicting sexual conduct by more than three distinct children of less than 16 years of age. With respect to RAI risk factor 5, the People sup*802port their argument that 30 points should be allocated to the defendant’s total risk factor score thereunder through their reliance upon People’s exhibit 5 in evidence, which indicates that more than 50 of the image files located on the defendant’s computer and hard disk drives contained images of children 10 years of age or less engaged in sexual performances. With respect to RAI risk factor 7, the People support their argument that 20 points should be allocated to the defendant’s total risk factor score thereunder through their reliance upon People’s exhibit 4 in evidence, which indicates that the defendant did not know any of the victims depicted in the pornographic images he possessed. With respect to RAI risk factor 14, the People support their argument that 15 points should be allocated to the defendant’s total risk factor score thereunder through their reliance upon their recognition that the defendant will not be supervised upon his release from incarceration. The People do not seek an adjudication of the defendant as either a “sexually violent offender,” a “predicate sex offender,” or a “sexual predator,” nor do they seek an upward departure from the defendant’s presumptive risk level two designation.


Minor A to engage in sexually explicit conduct that involved lascivious exhibition of Minor A’s genitalia, for the purposes of having Minor A take a photograph of the sexually explicit conduct.” At the change of plea hearing, the district court placed Merrill under oath and engaged in a thorough colloquy under Rule 11 of the Federal Rules of Criminal Procedure. Merrill testiﬁed that he had read the plea agreement, discussed it with defense counsel, and understood it. The government recited the factual basis as set forth in the plea agreement, including: “At defendant’s direction Minor A took photographs of herself that involved the lascivious exhibition of her genitals . … And then she sent those photographs to the defendant via text message at his direction.” When asked whether the government’s facts were accurate, Merrill replied: “Yes I did do that. I just don’t remember because it was so long ago. But … it says I did it because it was on my phone.” Defense counsel interjected to explain that, based on his conversations with Merrill, “it’s not that he doesn’t remember anything about the oﬀense. It’s that he doesn’t remember certain details.” The judge asked Merrill whether he remembered “soliciting photographs and possessing the types of photographs that are set forth in the plea agreement.” Merrill conﬁrmed that he did. Days before the scheduled sentencing hearing, new counsel appeared for Merrill. His new counsel moved to withdraw his guilty pleas. Merrill’s motion and supplemental aﬃdavit asserted that his two former attorneys, Pablo deCastro and Summer McKeivier, “never explained to him what it means to produce <mask> under the law” and “never explained what the elements of the production 4 No. 21-1070


Because “distribute” necessarily involves the transfer of materials to another person or location, a distribution within the meaning of the obscenity statutes occurs when a defendant’s <mask> materials are actually transferred to or downloaded by another person. Although appellant concedes that “the downloading of a torrent file containing multiple pornographic images and videos by [Sergeant] Servat’s program would complete an act of distribution,” he nonetheless argues that counts two through four are “legally unauthorized” because Servat downloaded the “same file with the same contents.” Appellant’s arguments are belied by the record. Sergeant Servat’s testimony established that downloading the same torrent file does not necessarily mean that the same files with the same content are downloaded. He testified that on May 26, 2017, a torrent file was downloaded with approximately 244 pornographic files, stored in subfolders bearing names such as “Hawaiian Breeze” and “LS Studio.” The same torrent file was downloaded the next day, also resulting in 244 files, but Servat testified that there were “one or two” more folders in the May 27 download. The May 27 download contained a folder named “Spoilt bab” and a subfolder named “Issue 15, Spoilt Babies.” According to Sergeant Servat, the download on May 27 contained “mostly” pornographic images, but also a 50- minute video depicting 9 and 10 year old girls orally copulating and digitally penetrating each other. On May 28, the same torrent file was downloaded again, this time resulting in 217 obscene files. The May 28 torrent download included a folder named “Happy Birthday” with a subfolder containing 12 obscene videos showing 7 and 8 year old girls in sexually provocative acts. Appellant complains that Sergeant Servat did not specify any differences in the folders or whether the folders contained different files, but


Our conclusion that the trial court's order does not violate Article 39.15(c) does not end the inquiry. The trial court excluded State's Exhibit 3 and Hanner's testimony regarding his own observation of the images for two reasons: (1) the evidence is irrelevant because it was not in the format required by the trial court; and (2) the State refused to make copies of the <mask> images for admission into evidence.


costly to release. Id. at 142–43 (explaining that the good faith ex- ception as a rule “reflect[s]” and is “justified by” weighing costs and deterrence benefits). Under Herring, therefore, when a court con- cludes that a constitutional violation was caused by a police of- ficer’s good faith mistake, “rather than systemic error or reckless disregard of constitutional requirements,” id. at 147, the costs of suppressing the evidence necessarily outweigh the benefits. The in- verse is also true. And it is true whether the charged crime is mur- der or jaywalking or something in between. Finally, even if this evidence should have been suppressed, we believe any error would have been harmless beyond a reasona- ble doubt under Chapman v. California, 386 U.S. 18 (1967). Consti- tutional errors in a criminal trial “do not require reversal if they are harmless.” United States v. Pon, 963 F.3d 1207, 1227 (11th Cir. 2020) (internal quotation marks omitted) (quoting United States v. Roy, 855 F.3d 1133, 1167 (11th Cir. 2017) (en banc)). A constitu- tional error is harmless when the government proves “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. (quoting Chapman, 386 U.S. at 22). “To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury con- sidered on the issue in question, as revealed in the record.” Yates v. Evatt, 500 U.S. 391, 403 (1991). Two pieces of evidence were found in the truck: (1) a cam- era with <mask> and (2) sex toys and similar parapher- nalia. Nicholson argues that the images found on the camera were USCA11 Case: 19-11669 Date Filed: 01/24/2022 Page: 23 of 25


The court of appeals reversed Appellant's conviction on Count 1, holding that the evidence was insufficient to support the conviction. As to the original full image of the child, the court of appeals decided that the full image is not <mask> because it does not depict a "lewd exhibition of the genitals." Following that holding, the court of appeals then held that the cropped image could not support the conviction on Count 1 because, having been "made" in 2014 at the time of cropping, that image does not depict a person who was under the age of eighteen at the time the image was made, and thus could not be child pornography.11


Unlike Penal Law § 235.22, section 263.10 is unrelated to the age of the recipient of the proscribed communication. In enacting Penal Law article 263, the New York Legislature found “a proliferation of exploitation of children as subjects in sexual performances”, declaring that “[t]he public policy of the state demands the protection of children from exploitation through sexual performances.” (L 1977, ch 910, § 1.) Article 263 was thus enacted for the protection of the child performers who were necessarily exploited and abused in the process of creating the pornographic communication.19 (New York v Ferber, 458 US 747 [1982], supra; People v Keyes, 75 NY2d 343, 346 [1990]; People v Gaito, 199 AD2d 615, 616 [3d Dept 1993].) The statute was expressly intended to chill the market for this contraband by criminalizing its possession and thereby to eliminate the child abuse inherent in its production. (See, New York v Ferber, at 759-760; People v Keyes, at 348; see also, Osborne v Ohio, 495 US 103, 109-110 [1990], supra [wherein the *736prohibition against private possession of <mask> was found to be constitutional].) Child pornography, like obscenity, is not protected under the First Amendment. In upholding the constitutionality of New York’s Penal Law § 263.15, which criminalizes the promotion of any sexual performance by a child under 16 regardless of whether it is “obscene”, the United States Supreme Court so held (New York v Ferber, at 750, 764). The Court took care to reject the application of the Miller obscenity standard to child pornography, finding the subject matter itself to be unprotected regardless of its effect upon the average person.20


An upward departure is also warranted based on the nature of the <mask> possessed by the defendant. The defendant possessed not only still images, but multiple video recordings of children being brutally and repeatedly sexually assaulted, sometimes over the course of several years. Many of the videos are rather lengthy, and show the sexual abuse of multiple child victims. At least two of the videos are high-quality produc*337tians with an individual filming the abuse while the child victim is being sexually assaulted by an adult male. Moreover, at least one of the video recordings shows the sadomasochistic abuse of a child victim. In that particular video, the child victim, who is wearing a black mask, is bound around her neck, wrists, and ankles, with her ankles tied to the binding around her neck. An adult male forces a dildo, and later, his penis into her mouth, and holds her head while he repeatedly forces his penis into her mouth.


It is also true that in one sentence of its opinion, the Kent majority appeared to dispense with the distinction between the intangibility of an image and its placement on a tangible medium. In that passage, the Court noted that some state authorities had held that a defendant’s awareness that a child pornographic image was stored on a cache was not necessary to impose criminal liability. Those authorities, the Court continued, did “not rely on the tangibility of the image (i.e., its permanent placement on the defendant’s hard drive and his ability to access it later)” but upheld criminal liability merely for accessing and viewing <mask>. (Id. at 302 [citations omitted].) The connotation of this passage is that child pornographic computer images are themselves tangible. That one sentence read in isolation, however, in this court’s view, is less an assessment that digital computer images are tangible than a minor imprecise turn of phrase on an issue which was not material to the Court’s holding.24


Even if the language of the warrant could be interpreted to include a *132search of Nguyen's residence, the warrant and affidavit failed to establish probable cause for such a search. The Attorney General contends "probable cause was established by the existence of an IP address assigned to an internet user at that property on the date and time the contraband images were transferred." He relies on the affidavit's statement that "the person responsible for the trading of <mask> from this residence can be anyone with access to the internet signal associated with this residence." The phrase "this residence" in the affidavit referred to the front house-i.e., Reynolds' residence. The Attorney General asserts that "[e]ven though it turned out that there were multiple domiciles on the property, there was probable cause to search all the residences because the entire premises were suspect."


The 2009 amendment to Article 39.14 made it subject to the restrictions provided by Article 39.15. See TEX.CODE CRIM.PROC.ANN. art. 39.14(a) (West 2018). Article 39.15 of the Code of Criminal Procedure requires that the trial court allow discovery of property or material that constitutes <mask>, as described by Section 43.26(a)(1) of the Penal Code, but it establishes the procedures which must be followed. TEX.CODE CRIM.PROC.ANN. art. 39.15(a)(1), (c) (West 2018). Under Section 39.15(b), property or material described by subsection (a) must remain in the care, custody, or control of the court or the state as provided by Article 38.45. TEX.CODE CRIM.PROC.ANN. art. 39.15(b).


– 16 – 2719 Instead, the defendant must show “that the jury’s ability to fairly decide the individual charges [was] substantially impaired [because] the jury hear[d] evidence relating to other charges at the same time.”32 Here, the evidence of Lee’s sexual abuse of the children was strong, and the jury’s decision to acquit on one of the charges demonstrates that they carefully reviewed the evidence and were not simply overcome by emotion. With the exception of the count on which the jury acquitted, the children’s accounts supported the sexual abuse and assault charges. The court admitted the recorded interviews of S.A. and D.A. in their entirety, and, during these interviews, both S.A. and D.A. reported that Lee assaulted them on multiple occasions and threatened S.A. with a sword. They also testified at trial. Although D.A. could not recall the assaults that had occurred five years earlier when she was six, S.A. gave consistent testimony regarding what had occurred. S.A. recalled being threatened by Lee and detailed multiple incidents of sexual abuse, including Lee touching her vaginal area while they were watching a movie. She was adamant that she was not mixing up Lee’s actions toward her with the actions of someone else. Given the strength of the evidence and the trial court’s care in eliminating the most inflammatory <mask> images, we conclude that Lee has failed to show the particularized prejudice required to prevail on this claim. Accordingly, we find no abuse of discretion in the trial court’s decision to deny Lee’s motion to sever.


542 F. App’x 724, 726–27 (10th Cir. 2013) (finding that, after § 2252A(a)(5)(B) was amended in 2008, the government was not required “to establish that the images themselves had crossed state lines”); United States v. Brown, 785 F.3d 1337, 1350–51 (9th Cir. 2015) (interpreting the 2008 amendments of §§ 2251(d)(1)(A) and 2252A(a)(1) to “not require evidence that the [child pornography] actually crossed state lines”); United States v. DeFoggi, 839 F.3d 701, 713 (8th Cir. 2016) (“[The defendant’s] use of the internet to access and download [child pornography] from [a website] is enough in this case to satisfy the interstate commerce nexus [of § 2252A(a)(5)(B)].”); see also United States v. Grzybowicz, 747 F.3d 1296, 1306 (11th Cir. 2014) (“The interstate commerce element[s] for [§§ 2251(a) and 2252A(a)(5)(B)] [are] satisfied by proof that the <mask> was transmitted using a facility of interstate or foreign commerce, including by computer . . . .”). In this case, the government provided the jury with circumstantial evidence that Clark’s child pornography moved from his computer through the internet to the government agent’s computer. This is sufficient evidence of distribution using a means or facility of interstate commerce within the meaning of § 2252(a)(2).


The Supreme Court extensively discussed the knowing possession requirement of KRS 531.335. The Court recognized that, "[t]he crime requires only the knowing possessing of <mask>, regardless of the purpose. The mens rea requirements of [ KRS 531.335 ] are satisfied by showing that the defendant knew the videos were child pornography and that he knowingly possessed them." Crabtree , 455 S.W.3d at 402.


There is a well-established body of constitutional law which holds that the court may limit that "speech” which is made available to children by persons other than their parents. "[T]he power of the State to control the conduct of children reaches beyond the scope of its authority over adults” (Prince v Massachusetts, 321 US 158, 170; Ginsberg v New York, 390 US 629, 638; cf., Emerson, Toward a General Theory of the First Amendment, 72 Yale U 877, 939 ["regulations of communication addressed to (children) need not conform to the requirements of the first amendment in the same way as those applicable to adults”]). Thus, for example, <mask> is not constitutionally protected speech (Osborn v Ohio, 495 US 103; R.A.V. v City of St. Paul, 505 US —, 112 S Ct 2538; see, People v Sprowal, 49 Misc 2d 806 [App Term, 1st Dept]).


On February 1, 2013, defendant filed a suppression motion pursuant to section 1538.5, alleging the warrantless search on March 21, 2012, violated the Fourth Amendment. On March 12 and 13, 2013, the superior court heard the motion in conjunction with the preliminary hearing. At the hearing, CSH police testified CSH is a maximum-security psychiatric hospital with a patient *909population of 1,100, between 80 to 85 percent of whom are sexually violent predators. Because CSH is located on the grounds of Pleasant Valley State Prison, a visitor cannot access the hospital unless he or she first passes an inspection by the Department of Corrections and Rehabilitation. Various signs throughout CSH advise that all persons, vehicles, and items are subject to search and/or list prohibited items. Officers conduct random searches of patients and their dormitories for contraband daily to maintain institutional security. However, patients often dispose of items in the trash or in the toilet once they realize officers are conducting a search. A *493major problem is the sale of <mask>. According to Sergeant Duvall, CSH is "possibly becoming a distribution hub." In addition, there have been assaults on (1) those "coming forward" to report child pornography; and (2) those who possess the child pornography by fellow patients who "don't like the persons having materials like that."


After a bench trial, the district court convicted John Kuhnel of receipt and possession of <mask>. On appeal, Kuhnel challenges the search of his vehicle by his supervising probation officer and the sufficiency of the evidence for the receipt convictions. Kuhnel raises additional arguments in a pro se supplemental brief, including that his possession convictions violate the Double Jeopardy Clause.1 We affirm in part and remand with instructions.


“The Board remains concerned about <mask> offenders, and in the majority of cases, believes that they have a sexually deviant interest in children which poses a significant risk to public safety; however, recognizes that each person convicted of a child pornography offense poses risks that are unique to that individual. These images are in essence crime scene photos of children being sexually abused, and the increased demand for these images results in further sexual victimization of children.” (State of New York Board of Examiners of Sex Offenders, June 1, 2012.)


sel, Department of Defense (Feb. 26, 2010, 5:02 PM). The Department of State “does not have a formal position or policy addressing whether the reporting requirement is triggered when a covered professional learns that someone has viewed <mask>, but the professional does not know the identity of the child or children depicted and has no reason to believe that the viewer knows their identities.” E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, OLC, from Robert Choo, Office of the Legal Adviser, Department of State (July 21, 2010, 2:35 PM). It recognizes, however, that this situation “may trigger other actions including the enforcement of child pornography laws, if applicable, or internal discipline.” Id. 7 The substitution in the text is not completely straightforward, in that the statute de-


Finally, Dr. Kline concluded that Derby was more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility. Dr. Kline explained that predatory acts are those directed towards individuals, including family members, for the primary purpose of victimization. Dr. Kline noted that children portrayed in <mask> are also victimized. Dr. Kline explained that Derby's past offense against his nephew was a predatory, sexual act and that Derby's purpose in molesting his nephew was victimization. Dr. Kline opined that future acts by Derby were similarly more likely than not to be of a predatory, sexually violent nature involving some victimization.


The government responds that Kuhnel’s conviction under § 2252A(a)(5)(B) involved additional proof of a digitally “morphed” image. “Child pornography” for purposes of § 2252A(a)(5)(B) more broadly includes visual depictions “created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(C). Like § 2252(a)(4)(B), however, the definition also encompasses visual depictions of real minors engaging in sexually explicit conduct. 18 U.S.C. § 2256(8)(A). Although the digitally altered picture of Victim G would not have fallen within the narrower language of § 2252(a)(4)(B), all the images and videos charged in the possession counts met the definition of <mask> applicable to § 2252A(a)(5)(B). The two possession statutes therefore do not require mutually exclusive proof of different types of child pornography.


In March 2012, the subpoenaed company identified Defendant as the "account holder/subscriber" for the IP address. Detective Phelps compared files that had been offered via Peer-to-Peer from the IP address with files in a law enforcement library of known images of <mask>, and he determined that 15 files offered from the IP address contained child pornography. Detective Phelps executed an affidavit for a search warrant ("the Phelps affidavit") that included, inter alia , specific descriptions of the content of the images in the 15 identified files available from the IP address.