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Arkansas Supreme Court Reverses 11 Counts of Possession of Child Pornography Because CGI Images Do Not Depict Image of a Child

by Douglas Ankney

The Supreme Court of Arkansas reversed the convictions against Jeremey Lewis on 11 counts of “distributing, possessing or viewing matter depicting sexually explicit conduct involving a child” because the images were computer-generated imagery (“CGI”) and did not depict or incorporate the image of a child.

Lewis was tried by jury on 30 counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child in violation of Arkansas Code Annotated § 5-27-602. At trial, the State’s expert, Arkansas State Police Special Agent Corwin Battle, testified that he categorized images 1 and 23 to be “comparison images” and that 23 appeared to be CGI. (“Comparative image” simply means the image was comparative to other images recovered from Lewis’ electronic devices.) Battle testified that he categorized images 15, 16, and 23-30 as CGI.

Lewis moved for a directed verdict on Counts 1, 15, 16, and 23-30, arguing the images did not contain a real person. Apparently, his motions were denied. The jury convicted Lewis of 25 counts, acquitted him of five counts, and sentenced him to a total of 42 years in the Arkansas Division of Correction. Lewis appealed, arguing that the State presented no evidence that the images underlying Counts 1, 15, 16, and 23-30 depicted or incorporated the image of a child.

The Arkansas Supreme Court observed “[a] person violates § 5-27-602(a)(2) if he or she ‘possesses through any means, including on the Internet, any photograph, film, videotape, computer program or file, computer-generated image, video game, or any other reproduction that depicts or incorporates the image of a child engaging in sexually explicit conduct.’” A “child” is defined as “[a] person under seventeen (17) years of age[.]” Ark. Code Ann. § 5-27-601(1).

For purposes of the issues in the instant opinion, a “person” is “[a] natural person.” § 5-1-102(13)(A)(i) (Repl. 2013). The Court explained: “Thus, although § 5-27-602(a)(2) includes possession of CGI, the criminal act is limited to possession of imagery depicting or incorporating the image of a child – a natural person under seventeen years of age – engaging in sexually explicit conduct. Section 5-27-602(a)(2) necessarily excludes CGI that does not depict or incorporate the image of a child under the statutory definition.

The Court’s reading of § 5-27-602(a)(2) is consistent with Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), in which the U.S. Supreme Court “declared unconstitutional as violative of the First Amendment § 2256(8)(B) of the Child Pornography Prevention Act of 1996 (“CPPA”), which prohibited ‘any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture that is, or appears to be, of a minor engaging in
sexually explicit conduct.’”

While New York v. Ferber, 458 U.S. 747 (1982), held that child pornography is deemed speech outside the protection of the First Amendment, it is based on the fact that child pornography is “intrinsically linked” to the sexual abuse of children, i.e., production of child pornography could be accomplished only by recording the crime of sexually abusing children. But the CPPA’s proscription of computer-generated imagery or “virtual imagery” went too far because it recorded no crime, and it created no victims by its production.

In the present case, the Court agreed with Lewis that the State failed to present evidence that the images identified as CGI by the State’s expert in Counts 1, 15, 16, and 23-30 depicted or incorporated the image of a child. The Court conducted its own independent examination of the image in Count 1 and concluded it did not depict or incorporate the image of a child. The Court concluded “[t]his constitutes a failure of proof sufficient to sustain Lewis’s convictions.”

Accordingly, the Court reversed and dismissed on Counts 1, 15, 16, and 22-30. See: Lewis v. State, 2023 Ark. 12 (Ark. 2023).

 

 

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