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State v. Weeks and Martin
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 171
Docket:	Cum-00-95
Argued:	September 8, 2000
Decided:	October 6, 2000


	[¶1]  Defendants Michael Weeks and Dale Martin appeal from the
judgments entered in the Superior Court (Cumberland County, Cole, J.) on
their conditional guilty pleas to twelve counts of disseminating sexually
explicit materials in violation of 17 M.R.S.A. § 2923 (1983), as amended by
P.L. 1983, ch. 223.  They argue that the court (Warren, J.) erred when it
denied their joint motion to dismiss the indictments because section 2923
is unconstitutionally vague.  They also argue that the court erred in
sentencing each defendant to three consecutive five-year sentences. 
Finding no error, we affirm the judgments.
	[¶2]  The facts presented by the State at the Rule 11 proceeding
may be briefly summarized as follows:  In August of 1998, a detective in New
Hampshire entered an internet relay chat system, depicting himself as a
fourteen-year-old boy.  In that system, he entered a chat channel entitled
"#100%preteenboysexpics."  There he exchanged messages with a person
who used the screen names "ManinME" and "Grezmnky."  "Grezmnky"
informed the detective that he had a host of pornographic pictures that
could be accessed through the internet system.  While they conversed,
"Grezmnky" sent the detective more than 120 photographs, 100 of which,
according to their depictions, were of children under the age of eighteen. 
	[¶3]  Information provided during the internet chat indicated that
"Grezmnky" was Michael Weeks and that he lived at 1 Cumberland Avenue
in Portland.  Acting on this information, the Portland police obtained a
warrant to search Weeks's home.  Weeks was then living with Dale Martin. 
During the search, authorities seized a computer that had been used to store
approximately three thousand visual images.  At least 975 of these images
were sexually explicit depictions of minors.  The search also revealed
computer records indicating that defendants had used their computer to
establish a lending library of pornographic images.  Anyone accessing the
system through "#100%preteenboysexpics" and then through a setup called
"!wildside" could take images from defendants' files in exchange for new
images.  The rule was that if a visitor provided one image, he or she could
receive two. 
	[¶4]  The computer evidenced forty-seven such transactions taking
place on September 2, 3, and 4, 1998.  The images exchanged involved
children, ranging in age from eighteen-month old babies to teenagers, and
some adults.  They depicted masturbation, lewd exhibition of the genitals,
children engaging in sexual acts with other children and with adults, and
child bondage.  These images could have been sent anywhere in the world
over the internet. 
	[¶5]  Defendants were interviewed on multiple occasions at the
Portland Police Department prior to being taken into custody.  In these
interviews, they admitted that they had set up the computer, that they knew
that there were thousands of sexually explicit images of children in their
library, and that they had established the library to collect pictures of
teenage boys.  Defendants explained that their system required quite a bit of
upkeep and that they had to spend time categorizing the images.  At one
point, the glut of incoming pictures became so unmanageable that they had
to discard them all. 
	[¶6] The Grand Jury indicted defendants, charging each with forty-
seven counts of disseminating sexually explicit materials (Class C) in
violation of 17 M.R.S.A. § 2923 and nine hundred seventy-five counts of
possessing sexually explicit materials (Class D) in violation of 17 M.R.S.A. §
2924 (Supp. 1999).  Defendants jointly moved to dismiss these indictments
on a number of constitutional grounds, but their motions were denied. 
Pursuant to a plea agreement, defendants then entered conditional guilty
pleas to twelve counts of disseminating sexually explicit materials in
exchange for the dismissal of thirty-five counts of dissemination and all
counts of possession.  The court divided the dissemination convictions into
three separate criminal episodes and sentenced defendants to three
consecutive five year sentences.{1}  It suspended the last five year sentence
and placed defendants on probation for four years.  Defendants now appeal.
	[¶7]  Defendants first challenge the constitutionality of section 2923,
the dissemination statute, on grounds of vagueness.  The Due Process Clause
of the Fifth Amendment to the United States Constitution requires that
criminal defendants be given "fair notice of the standard of conduct to
which they can be held accountable."  United States v. Robinson, 137 F.3d
652, 653 (1st Cir. 1998) (internal quotations omitted).  Thus, a statute will
be invalidated for vagueness when it fails to "define the criminal offense
with sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357
(1983).  See also Portland v. Jacobsky, 496 A.2d 646, 649 (Me. 1985) ("An
ordinance or a statute may be void for vagueness when its language either
forbids or requires the doing of an act in terms so vague that people of
common intelligence must guess at its meaning.").  
	[¶8]  In the present case, at the time of the offenses, 17 M.R.S.A.
§ 2923 provided:
     1. Offense.  A person is guilty of dissemination of sexually
explicit material if he intentionally of knowingly disseminates
or possesses with intent to disseminate any book, magazine,
print, negative, slide, motion picture, videotape or other
mechanically reproduced visual material which depicts any
minor, who the person knows or has reason to know is a
minor, engaging in sexually explicit conduct.
17 M.R.S.A. § 2923 (1) (1983), as amended by P.L. 1983, ch. 223.  In 1999,
after the present offenses occurred, the Legislature amended section 2923
to "clarif[y] the definition of 'disseminate' to make clear that the
dissemination of sexually explicit materials via computer is covered by the
laws regulating sexual exploitation of minors."  L.D. 1575, Summary (119th
Legis. 1999).  As amended, section 2923 currently prohibits the
dissemination of "any book, magazine, print, negative, slide, motion picture,
videotape, computer data file or other mechanically, electronically or
chemically reproduced visual image or material that depicts any minor . . .
engaging in sexually explicit conduct."  17 M.R.S.A. § 2923 (1) (Supp. 1999)
(emphasis showing relevant changes).  
	[¶9]  Defendants argue that section 2923, prior to the amendment,
was unconstitutionally vague because it did not specifically refer to images
contained on computer files.  They point out that penal statutes are to be
strictly construed and that genuine ambiguities regarding the coverage of a
criminal statute are to be resolved in favor of the defendant.  Defendants
emphasize that the police officers found no pictures when they searched
defendants' house; they recovered only data that had been stored on the
hard drive of defendants' computer.  They argue that the Legislature's
clarification of the statute demonstrates convincingly that people of ordinary
intelligence might not have concluded that the original version of the statute
prohibited the dissemination of child pornography over the internet.
	[¶10]  We disagree.  Prior to the amendment,  section 2923
provided ample notice to an ordinary person that disseminating child
pornography over the internet is prohibited.  On its face, the statute
prohibited the dissemination of "any book, magazine, print, negative, slide,
motion picture, videotape, or other mechanically reproduced visual
material" depicting child pornography.  17 M.R.S.A. § 2923(1) (emphasis
added).  There is no doubt that defendants' computer is a machine and that
its files contained "mechanically reproduced visual material" even though
the material was not visible to the naked eye unless printed or displayed on
a computer screen.  By prohibiting the dissemination of videotapes, motion
pictures, slides, and negatives depicting child pornography, the statute
clearly reaches the dissemination of stored images as well as finished
pictures.  An ordinary person reading the statute would understand that the
dissemination of computer files depicting child pornography is prohibited
because the files contain "mechanically reproduced visual materials."  Thus,
section 2923 does not constitute a denial of due process.
	[¶11]  Defendants also argue, in this direct appeal, that the court
abused its discretion in imposing consecutive sentences and that it deviated
from the sentencing process set forth in State v. Hewey, 622 A.2d 1151
(Me. 1993) and 17-A M.R.S.A. § 1252-C (Supp. 1999).  Defendants applied
for leave to appeal their sentences pursuant to M.R. Crim. P. 40, but their
applications were denied.  Accordingly, defendants may not now challenge
the propriety of their sentences "unless a 'jurisdictional infirmity' appears
on the record 'so plainly as to preclude rational disagreement as to its
existence.' "  State v. Cunningham, 1998 ME 167, ¶ 5, 715 A.2d 156, 157
(quoting State v. Parker, 372 A.2d 570, 572 (Me. 1977)).  Defendants fail to
demonstrate that the court exceeded its statutory powers, and thus there is
no jurisdictional infirmity.  See State v. Parker, 372 A.2d 570, 572 (Me.
	The entry is:
				Judgments affirmed.

Attorneys for the State: Stephanie Anderson, D.A. Julia Sheridan, A.D.A. (orally) Cumberland County Courthouse 205 Newbury St. Portland, Maine 04l0l Attorneys for the defendants: Karen Dostaler, Esq. 555 Forest Ave. Portland, Maine 04l0l (for Michael Weeks) Peter Evans, Esq. (orally) Mittel, Asen, Hunter & Cary P.O. Box 427 Portland, Maine 04112 (for Dale Martin)
FOOTNOTES******************************** {1} . The court sentenced defendants to five years on counts 1, 4, 8, and 9 (offenses occurring on September 2, 1998) concurrent with each other; five years on counts 13, 21, 24, 25, 27, and 28 (offenses occurring on September 3, 1998) concurrent with each other but consecutive to counts 1, 4, 8, and 9; and five years on counts 42 and 43 (offenses occurring on September 4, 1998) concurrent with each other but consecutive to counts 13, 21, 24, 25, 27, and 28.