subject: Possession Child Pornography St. Marys County Maryland Computer Minor Obscene Act 11-208 11-207 [print this page] Possession Child Pornography StPossession Child Pornography St. Marys County Maryland Computer Minor Obscene Act 11-208 11-207
JONATHAN GEORGE MOORE v. STATE OF MARYLAND
COURT OF APPEALS OF MARYLAND
388 Md. 446
August 11, 2005, Filed
Count II alleged that Moore "knowingly possessed a film, videotape, photograph, and other visual representation depicting an individual under the age of 16 years . . . engaged in sexual conduct" in violation of 11-208(a). Moore moved for a judgment of acquittal as to Count I, arguing that his conduct was not prohibited by 11-207(a)(3). The court denied the motion and found Moore guilty of both counts in the indictment.
Whether the Circuit Court erred in finding that Moore violated 11-207(a)(3)?
The State's interpretation of "use a computer to depict or describe" as "use a computer to download" does not accord with the ordinary usages of depict and describe. The definition of "download" is different than the definitions of "depict" and "describe." "Download" means to transfer or copy a file. The definition of "download" makes clear that to download is a different act than to depict and describe. The person who captures an image directly into a computer by means of a digital camera or who first converts the motion picture or photograph into a computer file has depicted that image. The person who downloads that image merely has copied and saved the file--i.e. has taken possession of the file.
The grammatical form of "depict or describe" further evidences that the meaning of the statute is to use a computer to create, not to use a computer to download. The person who downloads a picture transfers and copies a depiction or a file that depicts--the image already has been depicted when the person downloads it. The act of downloading is covered by 11-208, which prohibits a person from knowingly possessing a "visual representation depicting an individual under the age of 16 years". Section 11-208 prohibits the possession of an image that already has been depicted, or created. Thus, the possession statute employs the nominalized, gerund form of the verb depict.
Thus we conclude that the plain language of the statutory terms "to depict or describe" is unambiguous. The plain meaning of "use a computer to depict or describe" is to use a computer to create, not to use a computer to download. We hold that a person who downloads visual representationsof a minor engaged in obscene acts or sexual conduct does not violate the proscription of 11-207(a)(3) against "using a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct." Accordingly, the Circuit Court erred in finding that Moore violated 11-207(a)(3).
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.
