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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Carroll No. 2008-019 THE STATE OF NEW HAMPSHIRE v. PETER CLARK Argued: September 17, 2008 Opinion Issued: October 30, 2008 Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (John C. Kissinger, Jr. and Michael J. Murphy on the brief, and Mr. Kissinger orally), for the defendant. GALWAY, J. The defendant, Peter Clark, appeals his convictions for possession of child pornography, see RSA 649-A:3 (2007), following a bench trial in Superior Court (O'Neill, J.) We affirm. The following facts are supported by the record. In 2002 and 2003, the defendant became the subject of an investigation involving his internet communications with Detective James McLaughlin of the Keene Police Department, whom the defendant believed to be a fourteen-year-old boy. The defendant and Detective McLaughlin, as the fictitious child, communicated regularly via internet "chats," or instant, real time, messaging. These

conversations were of a graphic sexual nature. The defendant was arrested during his attempt to meet the fictitious child. Following his arrest, police executed a search warrant at the defendant's residence, seizing his computer. Special Agent Andrew Murphy, a computer forensic specialist for the United States Secret Service, subsequently conducted a forensic examination of the computer, which exposed the ten images that are the basis for the underlying indictments. At trial, the State moved to allow the fact finder to determine whether the images depicted real children under the age of sixteen based solely upon those images. The defendant objected. The trial court ruled that, "the State is not required, as a matter of law, to present any additional evidence or expert testimony beyond the images themselves to meet its burden of proof." It noted, however, that the State had provided additional competent expert evidence; namely, the testimony of Agent Murphy. The trial court concluded that "the subject images in this matter are beyond a reasonable doubt, of real children under the age of 16," and found the defendant guilty of ten counts of possession of child pornography. On appeal, the defendant argues that the State presented insufficient evidence that: (1) the images were of real minor children; and (2) that he knowingly possessed child pornography. We address each argument in turn. In order to prevail upon his challenges to the sufficiency of the evidence, the defendant must prove that "no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt." State v. MacDonald, 156 N.H. 803, 804 (2008). The defendant argues that the images in this case, standing alone, were insufficient to prove that actual children were depicted. He asserts that, "[g]iven the current state of technology, ordinary people have difficulty in differentiating between virtual and real images," necessitating evidence beyond the images themselves. He further contends that the images in this case, as introduced as exhibits at trial, were "strikingly small, approximately two inches by three inches in size," "somewhat grainy and unclear," and consisting of "grids of individually colored pixels," making it impossible to conclude beyond a reasonable doubt that real children were depicted. We disagree. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the United States Supreme Court declared unconstitutional as overbroad section 2256(8)(B) of the Child Pornography Prevention Act of 1996, see 18 U.S.C.

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New Hampshire Law