State of New Hampshire v. Wilfred Bergeron

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0488, State of New Hampshire v. Wilfred
Bergeron, the court on September 16, 2016, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, Wilfred Bergeron, appeals his convictions on ten counts
of possession of child pornography. See RSA 649-A:3 (Supp. 2015). He argues
that the Superior Court (Brown, J.) erred in: (1) denying his motion to
suppress evidence seized from his computer, and granting the State’s motion to
reexamine the computer, in violation of his rights under the State and Federal
Constitutions; and (2) finding the evidence supporting two of the convictions to
be sufficient to prove that the images were of a child engaged in sexually
explicit conduct. We first address the defendant’s constitutional arguments
under the State Constitution and rely upon federal law only to aid in our
analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

The defendant first argues that the trial court erred in denying his
motion to suppress evidence taken from his computer because, he asserts, the
police entered his home and seized the computer without a warrant or
voluntary consent. “When reviewing a trial court’s ruling on a motion to
suppress, we accept the trial court’s factual findings unless they lack support
in the record or are clearly erroneous.” State v. Mouser, 168 N.H. 19, 22
(2015).

“A voluntary consent free of duress and coercion is a recognized
exception to the need of both a warrant and probable cause.” State v. Socci, 166 N.H. 464, 473 (2014) (quotation omitted). “The burden is on the State to
prove, by a preponderance of the evidence, that the consent was free, knowing
and voluntary.” Id. (quotation omitted). “The validity of the consent is
determined by examining the totality of the circumstances.” Id. (quotation
omitted). “We will disturb the trial court’s finding of consent only if it is not
supported by the record.” Id. (quotation omitted).

The record shows that on March 16, 1989, the defendant was convicted
of felonious sexual assault and aggravated felonious sexual assault against a
boy under thirteen years of age. As a result of his conviction, the defendant
was required to register all online identifiers and meet with his local police
department’s sex offender compliance unit four times a year. See RSA ch.
651-B (2007 & Supp. 2015). On July 31, 2013, Manchester police detective
Craig received seven “cyber tips” suggesting that the defendant was collecting
child pornography on his computer using an e-mail account that he had
reported to police he no longer used. On November 15, 2013, at approximately
10:00 a.m., Craig and Manchester police detective Caldwell visited the
defendant’s apartment. Craig was dressed in plain clothes, and Caldwell was
in his uniform. Before entering the defendant’s apartment, the detectives
identified themselves as Manchester police officers and explained that they
wished to discuss his possible registration violations and possible possession of
child pornography. The defendant invited the detectives into his apartment.
The detectives spoke with him in his kitchen. When they asked to see his
computer, the defendant led them upstairs. After some further conversation,
Craig asked the defendant if he could take the computer, and the defendant
agreed. The detectives left the apartment with the computer and without
incident.

The defendant argues that based upon the totality of the circumstances,
he did not voluntarily consent to the detectives’ entry into his apartment or to
the seizure of his computer. He asserts that the consent was not voluntary
because the detectives confronted him with a number of accusations, including
failure to register an online identifier and possession of child pornography, and
that they pursued their questioning believing that he was guilty and that they
already had enough information for a warrant. He asserts that the officers
stood in close physical proximity to him within the confines of his small
kitchen, and that they never advised him of his Miranda rights, see Miranda v.
Arizona, 384 U.S. 436 (1966), or obtained a written consent to seize the
computer.

The trial court found, however, that the detectives “did not make any
outright accusations or assumptions of guilt.” “Rather,” the court found, the
detectives “spoke in a conversational tone” and “simply explained why they
were present.” The court found that, “[o]nce inside his apartment, [the]
defendant was able to move without interference,” and that he “sat and stood
as he pleased.” The court found that the defendant was not in custody, and
thus not entitled to Miranda warnings, and that while “the better practice
would have been to obtain a written consent” to seize the computer, the failure
to do so did not “invalidate [the] defendant’s consent.” We conclude that,
considering the totality of the circumstances, the trial court’s findings that the
defendant voluntarily consented to the detectives’ entry into his apartment and
to the seizure of his computer were supported by the record and not clearly
erroneous. See Mouser, 168 N.H. at 22; Socci, 166 N.H. at 473.

Alternatively, the defendant argues, the trial court erred in crediting the
offers’ testimony, and in rejecting his conflicting testimony, to find that he
voluntarily consented to the search. The defendant testified that the detectives

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entered his apartment without being invited. He testified that Caldwell stood
only one foot away from him, backed him into his living room, yelled at him,
and accused him of looking at “dirty pictures” and lying about his registration
information. The defendant testified that he felt threatened and did not believe
that he could refuse to show the detectives his computer. The defendant
testified that Craig told him that if he did not allow him to seize the computer,
he would return with “a piece of paper” and “trash” the apartment.

The trial court found, however, that the defendant’s testimony “appeared
rehearsed,” and that on cross examination, he “would frequently provide
evasive responses.” The court also found that the defendant’s testimony was
inconsistent with his earlier e-mails. The court concluded that the defendant’s
testimony was “not credible.” By contrast, the court found the detectives’
testimony to be “much more consistent, cohesive, and credible.” “We will not
overturn the credibility ruling of the factfinder, who is in the best position to
make such a determination.” State v. Seymour, 140 N.H. 736, 748 (1996)
(quotation omitted). Based upon this record, we conclude that the trial court
was not compelled to reject the detectives’ testimony or to accept the
defendant’s testimony. See Mouser, 168 N.H. at 22.

Accordingly, we conclude that the seizure of the defendant’s computer
did not violate Part I, Article 19 of the State Constitution. Because the Federal
Constitution provides no greater protection than the State Constitution under
these circumstances, see United States v. Nishnianidze, 342 F.3d 6, 14 (1st Cir.
2003); State v. Johnston, 150 N.H. 448, 454 (2004), we reach the same result
under the Federal Constitution.

The defendant next argues that the trial court erred in granting the
State’s motion to reexamine his computer because, he asserts, the State lacked
probable cause. Part I, Article 19 of the State Constitution requires that search
warrants be issued only upon a finding of probable cause. See State v. Letoile, 166 N.H. 269, 272 (2014). “Probable cause exists if a person of ordinary
caution would justifiably believe that what is sought will be found through the
search and will aid in a particular apprehension or conviction.” Id. (quotation
omitted). The record shows that the detectives obtained a warrant to search
the defendant’s computer based upon the information contained in the seven
cyber tips and from their November 15, 2013 encounter with the defendant.
The defendant filed a motion to suppress, and the State, in response, filed its
objection and a motion to reexamine the defendant’s computer. See State v.
Gubitosi, 151 N.H. 764, 767 (2005) (noting preferred method of obtaining
evidence against a defendant already before superior court is by motion to that
court). On appeal, the defendant argues that he was in custody during his
November 15, 2013 encounter with the police and that statements he made to
the detectives without Miranda warnings should have been excised from the
State’s motion to reexamine the computer. See State v. Orde, 161 N.H. 260,

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269 (2010) (reviewing court excises illegally obtained information to determine
whether remaining information establishes probable cause).

“Custody entitling a defendant to Miranda protections requires formal
arrest or restraint on freedom of movement of the degree associated with formal
arrest.” State v. McKenna, 166 N.H. 671, 676 (2014) (quotation omitted). “In
the absence of formal arrest, we must determine whether a suspect’s freedom
of movement was sufficiently curtailed by considering how a reasonable person
in the suspect’s position would have understood the situation.” Id. at 676-77
(quotation omitted). “To determine whether a reasonable person in the
defendant’s position would believe himself in custody, the trial court should
consider the totality of the circumstances of the encounter including, but not
limited to, factors such as the number of officers present, the degree to which
the suspect was physically restrained, the interview’s duration and character,
and the suspect’s familiarity with his surroundings.” Id. at 677 (citation and
quotation omitted). “Because the ultimate determination of custody requires
an application of a legal standard to historical facts, it is not merely a factual
question but a mixed question of law and fact.” State v. Jennings, 155 N.H.
768, 772 (2007) (quotation omitted). “We will not overturn the trial court’s
factual findings relevant to the question of custody unless they are contrary to
the manifest weight of the evidence.” Id. at 772-73. We review the ultimate
determination of custody de novo. Id. at 772.

In this case, the defendant was in familiar surroundings during the
November 15, 2013 encounter, as it took place in his apartment. The
defendant knew Caldwell and described his previous interactions with him as
cordial. The defendant argues that he was in custody because the detectives
initiated the contact, stood in close physical proximity to him within the
confines of his small kitchen, confronted him with specific accusations, and did
not inform him that he could terminate the encounter. However, the court
found that the detectives “spoke in a conversational tone,” and that they “did
not make any outright accusations or assumptions of guilt.” The court also
found that, “[o]nce inside his apartment, [the] defendant was able to move
without interference,” that he “sat and stood as he pleased.” In response to
Craig’s questioning, the defendant stated that he forgot to register the e-mail
account and that he had deleted child pornography from his computer a few
months earlier. Considering the totality of the circumstances of the encounter,
see McKenna, 166 N.H. at 677, we conclude that the defendant was not in
custody when he made these statements. See Jennings, 155 N.H. at 772.
Therefore, the trial court did not err by failing to excise the statements.

The defendant next argues that the State lacked probable cause because
the information contained in the warrant was stale. The cyber tips Craig
received on July 31, 2013 referenced e-mails dated February 21, 2012, and
February 24, 2013, and the defendant’s computer was not seized until
November 15, 2013.

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 “A lapse of time, alone, between a suspected crime and the issuance of a
warrant is not conclusive as to probable cause; rather it must be considered
with all the other circumstances, including the nature of the criminal activity
and the items sought.” State v. Marcotte, 123 N.H. 245, 248 (1983). We have
recognized that collectors of child pornography often retain their material for a
long time. See State v. Kirsch, 139 N.H. 647, 650-51 (1995) (“[I]t would be
reasonable for an issuing magistrate to conclude that a person charged with
sexual exploitation of children through photographs and similar items would
be likely to retain them for an indefinite period.” (quotation omitted)). “In
addition, the expertise and experience of the law enforcement officer are
relevant to the probable cause determination.” State v. Bell, 164 N.H. 452, 456
(2012) (quotation omitted). On November 15, 2013, the defendant told the
detectives that he deleted child pornography from his computer a few months
earlier. In support of its motion to reexamine the computer, the State
submitted an affidavit from a police detective who stated that “deleted” files or
data often remain on a computer’s storage system and can be recovered
months or years after their deletion. The detective also stated that, in his
experience, persons who collect sexually explicit visual images of children often
do not completely destroy them but keep them for long periods of time.

Based upon this record, we conclude that for purposes of Part I, Article
19 of the State Constitution, there was probable cause to believe that the
computer contained evidence that the defendant possessed child pornography.
See Letoile, 166 N.H. at 272. Because the Federal Constitution provides no
greater protection than the State Constitution under these circumstances, see
United States v. Irving, 452 F.3d 110, 125 (2nd Cir. 2006); Letoile, 166 N.H. at
274, we reach the same result under the Federal Constitution.

The defendant next argues that the evidence supporting two of the
convictions was insufficient to prove that the images were of a child engaged in
sexually explicit conduct. He concedes that he did not raise this issue in the
trial court and seeks review under our plain error rule. See Sup. Ct. R. 16-A.
The State counters that we cannot consider this issue, even under our plain
error rule, because the defendant waived his right to challenge the sufficiency
of the evidence when he agreed to a stipulated facts trial.

The record shows that, prior to trial, the defendant signed a waiver of his
“right to challenge this process or to challenge the sufficiency of the evidence
presented by the State in the offer of proof.” The defendant argues that,
regardless of the waiver language, the parties expected the trial court to make
an independent finding as to whether the images depicted child pornography,
and that, for this reason, the trial court looked at the images with counsel in
chambers before finding the defendant guilty. We will assume, without
deciding, that the defendant did not waive his right to challenge the sufficiency
of the evidence to prove that the images depict a child engaged in sexually
explicit conduct.

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 The State also argues that the defendant failed to provide a sufficient
record to decide the issue because there is no record of the conference held in
chambers. See State v. Winward, 161 N.H. 533, 542 (2011) (appealing party
has burden to provide sufficient record to decide his issues on appeal).
However, the record shows that, prior to the chambers conference, the trial
court advised the defendant, “we’re going in to look at the images. There won’t
be anything else that’s discussed in chambers.” Nothing in the record shows
that the parties presented any evidence other than the images during the
conference. Accordingly, we conclude that the record is sufficient to address
this issue.

“To find plain error: (1) there must be an error; (2) the error must be
plain; (3) the error must affect substantial rights; and (4) the error must
seriously affect the fairness, integrity or public reputation of judicial
proceedings.” State v. Houghton, 168 N.H. 268, 273 (2105) (quotation
omitted). “When considering a challenge to the sufficiency of the evidence, we
objectively review the record to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt, considering all the evidence and all reasonable inferences therefrom in
the light most favorable to the State.” Id. at 271.

RSA 649-A:3 prohibits the possession of “any visual representation of a
child engaging in sexually explicit conduct.” RSA 649-A:3, I(a). “‘Child’ means
any person under the age of 18 years.” RSA 649-A:2, I (Supp. 2015). RSA 649-
A:2, III (Supp. 2015) defines “sexually explicit conduct” as:

human masturbation, the touching of the actor’s or another
person’s sexual organs in the context of a sexual relationship,
sexual intercourse actual or simulated, normal or perverted,
whether alone or between members of the same or opposite sex or
between humans and animals, or any lewd exhibitions of the
buttocks, genitals, flagellation, bondage, or torture. Sexual
intercourse is simulated when it depicts explicit sexual intercourse
that gives the appearance of the consummation of sexual
intercourse, normal or perverted.

To determine whether an image depicts “a lewd exhibition of the genitals”
we have found the following factors to be instructive:

(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;

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 (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; and

(6) whether the sexual depiction is intended or designed to elicit a
sexual response in the viewer.

State v. Lopez, 162 N.H. 153, 156 (2011).

The defendant argues that the image depicted in file “12.jpg” in
indictment 216-14-CR-1066 (ID# 999222c) does not sufficiently depict a child
under the age of eighteen years engaged in “sexually explicit conduct.” “[T]he
determination of the age of the subjects in a photograph is for the trier of fact,
relying on everyday observations and common experiences.” Houghton, 168
N.H. at 272 (brackets and quotation omitted). We have reviewed the image in
file “12.jpg.” It shows a young male standing nude before a mirror holding a
cellphone or camera. His physical features show that he has not yet reached
full maturity. See id. Although his penis appears to be flaccid, he is naked,
and his complete face is not shown, making his penis the focal point of the
image. See Lopez, 162 N.H. at 156. This image of a young male, given its
focus on his genitals, is sexually suggestive. See id.

We agree with the State that although the defendant relies exclusively
upon the image itself to argue that the evidence is insufficient, the record
shows that the defendant strongly prefers images of young boys, “preferably
pre-teen to early teen with little or no clothing,” as he wrote in one e-mail. A
fact-finder could reasonably consider this evidence to support the conclusion
that the images on the defendant’s computer depict boys under the age of
eighteen. See id. at 271 (“When considering a challenge to the sufficiency of
the evidence, we . . . consider all the evidence and all reasonable inferences
therefrom.” (emphases added)).

Finally, the defendant argues that the image depicted in indictment 216-
14-CR-1066 (ID# 999215C) does not sufficiently depict “sexually explicit
conduct.” We have also reviewed this image. It depicts a young boy holding
and looking at his penis. The focal point of the image is the boy’s penis. See
Lopez, 162 N.H. at 156. We conclude that a fact-finder could determine that
the image is sexually suggestive and is designed to elicit a sexual response in a
viewer. See id.

Considering all the evidence and all reasonable inferences therefrom in
the light most favorable to the State, see Houghton, 168 N.H. at 271, we

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conclude that the evidence supporting these two convictions is sufficient to
prove, beyond a reasonable doubt, that the images depict children under the
age of eighteen years engaged in sexually explicit conduct. Accordingly, we find
no plain error. See id. at 273 (for plain error, there must be error).

Affirmed.

Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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