Preview:

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC.                                                                           SUPERIOR COURT
(FILED:  OCTOBER 26, 2012)
STATE OF RHODE ISLAND                                                                     :
:
v.                                                                                        :                C.A. No. P2-2012-0835A
:
ARUNOTHAI ASAWABOWORNAN                                                                   :
:
DECISION
McBURNEY, M.   Before this Court, pursuant to Rule 9.1 of the Superior Court Rules of
Criminal Procedure1 and Rhode Island General Laws 1956 § 12-12-1.7,2 is the Motion of
Arunothai Asawabowornan (“Asawabowornan” or “Defendant”) to dismiss charges by
information against her for Producing Child Pornography in violation of Rhode Island
General Laws 1956 § 11-9-1.3(1), Transferring Child Pornography in violation of section
11-9-1.3(2),  and  Possessing  Child  Pornography  in  violation  of  section             11-9-1.3(4).
1 Rule 9.1 of the Rules of Criminal Procedure for the Superior Court states:
“A defendant who has been charged by information may, within
thirty (30) days after he or she has been served with a copy of the
information, or at such later time as the court may permit, move to
dismiss on the ground that the information and exhibits appended
thereto do not demonstrate the existence of probable cause to
believe that the offense charged has been committed or that the
defendant committed it. The motion shall be scheduled to be heard
within a reasonable time.”
2 Rhode Island General Laws 1956 § 12-12-1.7 states:
“Within thirty (30) days after a defendant is served with a copy of
an information charging him or her with an offense, he or she may
move  in  the  superior  court  to  dismiss  the  information  on  the
ground that the information and exhibits appended to it do not
demonstrate the existence of probable cause to believe that the
offense  charged  has  been  committed  or  that  the  defendant
committed it. Upon the filing of the motion to dismiss the court
shall schedule a hearing to be held within a reasonable time.”




Defendant asserts that the images and video upon which the charges are based fail to
meet the statutory criteria for child pornography.   Therefore, she argues, there is no
probable cause to believe that the charged crimes were committed, and accordingly, the
charges  should  be  dismissed.    For  the  reasons  set  forth  below,  this  Court  denies
Defendant‟s Motion to Dismiss.
I.  Facts and Travel
Arunothai Asawabowornan is a native of Thailand, living as a resident alien in
Providence.  In 2006 or 2007, Defendant, while in Thailand, became the legal guardian of
her niece, Jane.3   From her adoption until February 2011, Jane lived with Defendant,
Defendant‟s sister, and Defendant‟s boyfriend.
In September  2010, the Rhode Island State Police received a tip through the
National Center of Missing and Exploited Children that a video had been uploaded to
www.youtube.com                                                                                 (“YouTube”)   by   a   user   with   the   e-mail   address   of
arunothai4@gmail.com.   That video‟s content centered on a young female, who was
asleep and lying face-up on a bed.   In the video, the female was wearing shorts, without
underwear, and her genitalia was plainly visible under her shorts.   The video-operator
zoomed in on the female‟s bare genitals and then, while still zoomed in, pulled aside the
young female‟s shorts, fully exposing her pubic area.
Based on the video, the Rhode Island State Police completed a search warrant for
the e-mail address arunothai4@gmail.com, and made a subpoena request for the Internet
Protocol (“IP”) address associated with that e-mail.  The e-mail logs from Google, sent in
response  to  the  search  warrant  and  subpoena,  revealed  several  other  photographs,
3 To protect the privacy of the child victim in this case, the Court has given her a
fictitious name.
2




including the three other photographs at issue in this case.   Two of those photographs
were of Jane, who at the time of the search warrant was eight years old.   In one of the
photographs (Image 1), Jane is completely nude.   In the second photograph (Image 2),
Jane‟s underwear is just above her knees.  The camera frame is focused on her pubic area,
and her face is not visible in the picture.   The third photograph (Image 3) shows Jane in a
park.   Although another photograph depicts her wearing a bikini, in the photograph at
issue, she has her top off, exposing her breasts.
The e-mail data additionally revealed that the e-mail address was registered to
Arunothai Asawabowornan, and that the photographs had been sent to four other e-mail
addresses.    Based  on  this  information,  the  Rhode  Island  State  Police  completed
applications for search warrants for the four e-mail addresses to which the photographs
had been sent.   The police subsequently learned, through Defendant‟s statements and an
investigation,  that  the  four  e-mail  addresses  were  all  registered  to  members  of
Defendant‟s family.
Based on the YouTube posting, the photographs that had been sent, and additional
surveillance, the police executed a search warrant on Defendant‟s residence.    While
executing the search warrant, the police advised Defendant of her Miranda rights and
asked her if she wished to speak with them about the subject matter of the investigation.
The Defendant made a recorded statement, in which she admitted to taking the video,
posting the video to YouTube, taking the photographs, and transmitting the photographs
through e-mail.    Additionally, upon executing the search warrant, the police seized
computers, cameras, and a variety of electronic storage devices, such as external hard
drives, flash cards, and thumb drives.   The Defendant was charged with three counts
3




under section 11-9-1.3—Possession of Child Pornography in violation of section 11-9-
1.3(a)(4);  transfer  of  child  pornography  in  violation  of  section                         11-9-1.3(a)(2);  and
production of child pornography in violation of section 11-9-1.3(a)(1).
In  March                                                                                        2011,  the  Defendant  made  a  Rule                       5  Motion  for  Preliminary
Examination under the District Court Rules of Criminal Procedure, seeking to dismiss the
charges for lack of probable cause.   After hearing testimony and reviewing evidence
presented, the District Court hearing judge concluded that probable cause had been
shown on each count of the felony complaint.   In June 2012, the Defendant again sought
to dismiss the charges for probable cause, basing this motion on Rule 9.1 of the Superior
Court Rules of Criminal Procedure.
By agreement of the parties, this Court also engaged in an in camera viewing of
the video, which is at the core of these allegations.
II. Standard of Review
It  is  well  settled  that                                                                      “[w]hen  addressing  a  motion  to  dismiss  a  criminal
information, a [Superior Court] justice is required to examine the information and any
attached exhibits to determine whether the state has satisfied its burden to establish
probable cause to believe that the offense charged was committed and that the Defendant
committed it.”   State v. Martini, 860 A.2d 689, 691 (R.I. 2004) (quoting State v. Fritz,
801 A.2d 679, 682 (R.I. 2002)); see also State v. Aponte, 649 A.2d 219, 222 (R.I. 1994);
State v. Reed, 764 A.2d 144, 146 (R.I. 2001).   Further, when ruling on a motion to
dismiss, “the trial justice should grant the state „the benefit of every reasonable inference‟
in favor of a finding of probable cause.”   State v. Young, 941 A.2d 124, 128 (R.I. 2008)
(quoting State v. Jenison, 442 A.2d 866, 875-76 (R.I. 1982)).
4




Additionally, “[t]he probable-cause standard applied to a motion to dismiss is the
same as that for an arrest.”    Aponte,  649 A.2d at  222.                                    “Probable cause to arrest
„consist[s] of those facts and circumstances within the police officer‟s knowledge at the
moment of arrest and of which he had reasonably trustworthy information that would
warrant a reasonably prudent person‟s believing that a crime has been committed and that
the prospective arrestee had committed it.‟”   Id. (quoting State v. Usenia, 599 A.2d 1026,
1029  (R.I.                                                                                   1991)).                                                              Thus,  probable  cause  sufficient  to  support  an  information  is
established when, after taking into account relevant facts and circumstances, a reasonable
person  would  believe  that  the  charged  crime  occurred  and  was  committed  by the
Defendant.   Furthermore, a trial justice‟s finding of probable cause “may be based in
whole or in part upon hearsay evidence or on evidence which may ultimately be ruled to
be inadmissible at the trial.”   1956 § 12-12-1.9.
III.    Analysis
A. Collateral Estoppel
The State has argued that the matter before the Court is barred from consideration
by the doctrine of collateral estoppel due to a previous finding of probable cause in the
felony complaint by a District Court hearing judge.                                           “Collateral estoppel „means simply
that when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties in any future
lawsuit.‟”   State v. Hie, 688 A.2d 283, 284 (R.I. 1996) (quoting Ashe v. Swenson, 397
U.S. 436, 443 (1970)).                                                                        “For this doctrine to apply, three requirements must be satisfied:
there must be an identity of issues; the prior proceeding must have resulted in a final
judgment on the merits; and the party against whom collateral estoppel is sought must be
5




the same as or in privity with a party in the prior proceeding.”   Id. (citing Providence
Teachers Union, Local 958 v. McGovern, 113 R.I. 169, 172, 319 A.2d 358, 361 (1974)).
Moreover, under the identity of the issues analysis, “there are three factors that must be
considered:                                                                                       „first, the issue sought to be precluded must be identical to the issue decided
in the prior proceeding; second, the issue must actually have been litigated; and third, the
issue must necessarily have been decided.‟”   Id. at 285 (quoting State v. Chase, 588 A.2d
120, 123 (R.I. 1991)).
Additionally, the Rhode Island Supreme Court has determined that the doctrine of
collateral estoppel can be applied against criminal defendants.   Id. at 284.   However,
“[t]he United States Supreme Court has noted that „collateral estoppel in criminal cases is
not to be applied with the hypertechnical and archaic approach of a 19th century pleading
book, but with realism and rationality.‟”   Id. at 284-85 (quoting Ashe, 397 U.S. at 444).
The Court‟s inquiry on whether to apply collateral estoppel “must be set in a practical
frame and viewed with an eye to all the circumstances of the proceedings.”   Id. at 285
(quoting Ashe, 397 U.S. at 444).
It is clear that there is an identity of the parties in this case, as the State of Rhode
Island and Defendant have argued before the District Court and the Superior Court on
these motions.   Equally evident is that there is an identity of issues.   In considering the
first factor, the issue in this case is identical to the issue decided in the prior proceeding.
In the District Court, Defendant requested a Preliminary Examination in accordance with
Rule 5 of the District Court Rules of Criminal Procedure,4 which requires the hearing
4 Rule 5(c) of the District Court Rules of Criminal Procedure provides:
“Preliminary Examination.   The defendant shall not be called
upon to plead.   If the defendant waives preliminary examination,
6




judge to determine whether probable cause exists to believe that an offense has been
committed and that Defendant has committed the offense.   In this Court, Defendant made
a Motion to Dismiss for Lack of Probable Cause under Rule 9.1 of the Superior Court
Rules of Criminal Procedure, which requires the Superior Court Justice to determine
whether probable cause exists to believe that an offense has been committed and that
Defendant committed it.   Furthermore, in considering the second factor, this issue was
fully litigated in the District Court, and the hearing judge issued a written decision:   the
“Decision on Defendant‟s Motion for Preliminary Examination.”   In that decision, he
concluded,  “[a]fter a thorough review of the testimony presented at the hearing, the
Court‟s inspection of the video, and a review of the pertinent statute, this Court finds that
the probable cause has been shown on each count of the instant felony complaint.”
Finally, in considering the third factor, the determination of probable cause was necessary
to the prior proceeding:   based on that decision, Defendant was held on the complaint to
answer in Superior Court.
However, the doctrine of collateral estoppel does not apply because the District
Court determination was not a final judgment.   The Rhode Island Supreme Court has
the judge of the District Court shall forthwith hold the defendant to
answer in the Superior Court.   If the defendant does not waive
examination, the judge shall hear the evidence within a reasonable
time.   The defendant may cross-examine witnesses against him or
her and may introduce evidence in his or her own behalf. If from
the evidence it appears to the judge that there is probable cause to
believe that an offense has been committed and that the defendant
has committed it, the judge shall forthwith hold the defendant to
answer in the Superior Court; otherwise the judge shall discharge
the defendant.   The judge shall, where authorized by statute, admit
the defendant to bail as provided in these rules.   After concluding
the proceeding the judge shall transmit forthwith to the clerk of the
Superior  Court  for  the  appropriate  county  all  papers  in  the
proceeding and any bail taken by him or her.”
7




determined that “[t]he denial of a motion to dismiss a criminal action (with the exception
of a motion on double-jeopardy or collateral-estoppel grounds) is not a final judgment
from which an appeal may be taken.”   State v. Morejon, 675 A.2d 410, 412 (R.I. 1996);
see also State v. Godette, 751 A.2d 742, 745-46 (R.I. 2000).
Additionally, in determining whether to apply collateral estoppel, this Court must
consider all the circumstances of the proceeding and the practical consequences of
applying the doctrine.   Hie, 688 A.2d at 285.   Therefore, because the procedural posture
of this Motion differs with the posture of the matter before the District Court, and
because different procedural rules apply to each motion, this Court declines to apply the
doctrine of collateral estoppel in this matter.  This Court now proceeds to an evaluation of
the merits of Defendant‟s motion.
B.  Probable Cause
The Defendant is charged with three violations of the Child Pornography statute
under Rhode  Island  General  Laws  1956  §  11-9-1.3.    Section  11-9-1.3 provides  in
pertinent part:
“Child pornography prohibited. - (a) Violations. It is a
violation of this section for any person to:
(1) Knowingly produce any child pornography;
(2) Knowingly mail, transport, deliver or transfer by any
means, including by computer, any child pornography;
(3) Knowingly reproduce any child pornography by any
means, including the computer; or
(4)  Knowingly possess  any book,  magazine,  periodical,
film, videotape, computer disk, computer file or any other
material that contains an image of child pornography.
(c) Definitions. For purposes of this section:
(1)                                                                                            „Child  pornography‟  means  any  visual  depiction,
including any photograph, film, video, picture, or computer
or computer-generated image or picture, whether made or
8




produced by electronic,  mechanical,  or other  means, of
sexually explicit conduct where:
(i) The production of such visual depiction involves the use
of a minor engaging in sexually explicit conduct;
(ii)  Such  visual  depiction  is  a  digital  image,  computer
image, or computer-generated image of a minor engaging
in sexually explicit conduct; or
(iii) Such visual depiction has been created, adapted, or
modified  to  display  an  identifiable  minor  engaging  in
sexually explicit conduct.
(6) „Sexually explicit conduct‟ means actual:
(i)  Graphic  sexual  intercourse,  including  genital-genital,
oral-genital, anal-genital, or oral-anal, or lascivious sexual
intercourse where the genitals, or pubic area of any person
is exhibited;
(ii) Bestiality;
(iii) Masturbation;
(iv) Sadistic or masochistic abuse; or
(v) Graphic or lascivious exhibition of the genitals or pubic
area of any person;
(7)                                                                                         „Visual  depiction  includes  undeveloped  film  and
videotape  and  data  stored  on  a  computer  disk  or  by
electronic means, which is capable of conversion into a
visual image;
(8)  „Graphic,‟ when used with respect to a depiction of
sexually explicit conduct, means that a viewer can observe
any part of the genitals or pubic area of any depicted person
or animal during any part of the time that the sexually
explicit conduct is being depicted.
Since the Rhode Island Supreme Court has yet to interpret this statute, this Court
looks to analogous federal decisions interpreting federal child pornography statutes for
guidance in its application.   See 18 U.S.C. § 2256(2)(B)(iii) (proscribing “graphic or
simulated lascivious exhibition of the genitals or pubic area of any person”); see also
State v. Byrne, 972 A.2d 633, 641 n.11 (R.I. 2009) (noting similarity between Rhode
Island and federal child pornography statutes).   Federal courts have recognized that the
“graphic” or “lascivious” nature of the content at issue is a case-specific determination
that must be established based on the totality of the circumstances.   See, e.g., United
9




States v. Wallenfang, 568 F.3d 649, 658 (8th Cir. 2009); United States v. Amirault, 173
F.3d 28, 32 (1st Cir. 1999); United States v. Knox, 32 F.3d 733, 747 (3d Cir. 1994);
United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff‟d, 813 F.2d 1231 (9th Cir.
1987).
Specifically, courts have applied the list of factors articulated in United States v.
Dost:
“1) whether the focal  point  of the visual  depiction  is  on the child‟s
genitalia or pubic area;
2) whether the setting of the visual depiction is sexually suggestive, i.e., in
a place or pose generally associated with sexual activity;
3) whether the child is depicted in an unnatural pose, or in inappropriate
attire, considering the age of the child;
4) whether the child is fully or partially clothed, or nude;
5) whether the visual depiction suggests sexual coyness or a willingness to
engage in sexual activity;
6) whether the visual depiction is intended or designed to elicit a sexual
response in the viewer.”
Dost, 636 F. Supp. at 828; see also Wallenfang, 568 F.3d at 657-58 (applying the Dost
factors as guidance to determine whether a depiction is lascivious); Amirault, 173 F.3d at
32  (noting  that  although  the  Dost  factors  provide                                     “specific,  workable  criteria”  in
determining whether content is “lascivious,” other factors will also be evaluated and that
“[t]he inquiry will always be case-specific”); Knox, 32 F.3d at 747 (concluding that fact-
finders must determine whether content is lascivious “using the Dost factors and any
other relevant factors given the particularities of the case”).   The Dost factors are not
exhaustive;  they  are,  however,                                                            “generally  relevant  and  provide  some  guidance  in
evaluating whether the display in question is lascivious.”  Amirault, 173 F.3d at 31-32.
To withstand this Motion to Dismiss, the State must merely submit sufficient
evidence that a reasonable person would believe that the charged offenses occurred, and
10




Defendant committed the offenses.   In this case, that standard requires that the State
produce sufficient evidence for a reasonable fact-finder to conclude that the video posted
to YouTube or the photographs e-mailed by Defendant included content that was a
“[g]raphic or lascivious exhibition of the genitals or pubic area of any person.”   See § 11-
9-1.3(c)(6).
Where, as here, a reasonable person would believe that the content at issue
included a graphic or lascivious exhibition of a person‟s genitals or pubic area, the Court
will not dismiss a charge under Rule 9.1.   In this case, the State has presented three
photographs and one video.   Applying the Dost factors, a reasonable jury could find that
the photographs or the video depicted a graphic or lascivious exhibition of Jane‟s pubic
area.  See Dost, 636 F. Supp. at 828.
In Image 1, Jane appears completely nude.   When viewing this image in light of
the Dost factors, this Court finds that there is probable cause to believe that the image
constitutes child pornography under section 11-9-1.3 and that Defendant generated and
distributed the image.   The third and fourth factors in Dost are particularly relevant to
this analysis.   The image, which depicts a completely nude minor, is lascivious in this
Court‟s opinion, in part, because the complete nudity is inappropriate considering the
age of this child.   The fact that this image was recovered during the execution of a
search warrant for Defendant‟s e-mail address and that Defendant ultimately admitted to
the taking of the photograph and transmittal of the photograph by e-mail further support
the finding of probable cause.
In Image 2, Jane appears with her pubic area exposed and her underwear just
above her knees.    Her genital area is fully uncovered, and her pose of putting on
11




underwear is sexually suggestive.   Further, the fact that she is exiting the shower and
changing is also sexually suggestive.   Therefore, this image implicates the first, second,
third, and fourth factors in Dost.   Based on the lascivious nature of the image, the
manner of discovery of the image, and Defendant‟s statement and transmittal of the
image, this Court finds probable cause to believe that the image violates the Child
Pornography Statute.
In Image 3, Jane appears in a park without a top, so her breasts are exposed.
Therefore, the third and fourth Dost factors are applicable to this image.  Based upon the
lascivious nature of the image and the manner of discovery of the image, as well as
Defendant‟s statement and transmittal of the image, this Court finds probable cause to
believe that it violates the Child Pornography Statute.
In the video, Jane appears sleeping on a bed.   She is wearing shorts without
underwear, and her pubic area is plainly visible under her shorts.   The video-operator
zooms in on the genital area, and then, while zoomed in, pulls aside Jane‟s shorts, fully
exposing her genitals.  Further, Jane is lying on a bed, and, as the United States Court of
Appeals for the Second Circuit has determined in the context of evaluating whether an
image is lascivious such that it constitutes child pornography,  “a bed is  „generally
associated with sexual activity[.]‟”   United States v. Rivera, 546 F.3d 245, 250 (2d Cir.
2008).   Therefore, the first, second, third, and fourth Dost factors are applicable.   Based
upon the lascivious nature of the video, the manner of discovery of the video, as well as
Defendant‟s statement and transmittal of the video, this Court finds probable cause to
believe that the video violates the Child Pornography Statute.   Additionally, this Court
agrees  with  the  State‟s  contention  that  this  video  was  graphic  and  would  not  be
12




considered  constitutionally  protected  speech.    This  shocking  depiction  of  Jane‟s
genitalia  is  exactly  what  the  General  Assembly  sought  to  prohibit  in  the  Child
Pornography Statute.
Although the photographs or video may not meet all the Dost factors, a depiction
need not meet all the Dost factors to be lascivious.   United States v. Wolf, 890 F.2d 241,
247 (10th Cir. 1989).   For example, in Wolf, the United States Court of Appeals for the
Tenth Circuit held that a depiction can be “lascivious” even if it does not suggest sexual
coyness or a willingness to engage in sexual activity.   Id.   In that case, the image at issue
depicted a young girl lying on her back, while sleeping.   Id. at 243.   The girl‟s sleep-shirt
had been pulled up above her waist to expose the nude lower half of her body.   Id.   The
Wolf court upheld the fact-finder‟s conclusion that the picture was lascivious, reasoning
that holding otherwise “would ignore the obvious exploitative nature of the depiction and
require the child to exhibit lust, wantonness, sexual coyness or other inappropriate
precocity.”  Id. at 246.
In addition, the fact that Jane is partially clothed in some of the depictions does
not preclude a finding that the images are graphic or lascivious.   In fact, in United States
v. Knox, the United States Court of Appeals for the Third Circuit noted that visual
depictions of clothed genitalia may fall within the meaning of “lascivious exhibition of
the genitals or pubic area,” and thereby qualify as child pornography.                            32 F.3d at 754.
Therefore,  where,  as  here,  the  determination  of  whether  the  content  at  issue  is
“lascivious”  or                                                                                  “graphic”  is  highly-fact  specific,  and  where   “the  spectrum  of
constitutionally unprotected pornographic material [is] broader” because a child is the
13




subject matter of the content, it is inappropriate for this Court to dismiss for lack of
probable cause.  See id. at 750.
IV. Conclusion
Taking into account the relevant facts and circumstances, and granting the State
the benefit of every reasonable inference, this Court denies the motion to dismiss for lack
of probable cause.   For the reasons set forth above, this Court finds that there is probable
cause to support the charges of Producing Child Pornography in violation of Rhode
Island General Laws 1956 § 11-9-1.3(1), Transferring Child Pornography in violation of
section  11-9-1.3(2), and Possessing Child Pornography in violation of section  11-9-
1.3(4).
14

Download 12-0835A.pdf

Rhode Island Law