STATE OF CONNECTICUT v. MICHAEL INZITARI, SC 21008

Judicial District of New Britain

 Criminal; Whether Evidence Insufficient to Prove Defendant Possessed Fifty or More Images of Child Pornography; Whether Jury Improperly Instructed on Standard for Lascivious Images; Whether Court Improperly Declined to Give Specific Unanimity Instruction; Whether Court Improperly Admitted "Artifacts" of Deleted Images from Defendant's Phone. Following the defendant's arrest on an unrelated charge, the police obtained a cell phone that he intentionally left in his friend's possession just prior to his arrest.  A forensic examination revealed that the phone contained hundreds of images of suspected child pornography.  The defendant was charged with one count of violating General Statutes § 53a-196d (a) (1) because he "knowingly possesse[d] . . . fifty or more visual depictions of child pornography."  Child pornography is defined under § 53a-193 (13) as "sexually explicit conduct," which in turn is defined under § 53a-193 (14) as, inter alia, the "lascivious exhibition of the genital or pubic area of any person."  At trial, thirteen of the fifty-seven images that were recovered from the defendant's phone and entered as evidence depicted naked boys but did not portray any sexual intercourse. The trial court admitted, as uncharged misconduct evidence, "artifacts" extracted from the phone that related to deleted images. The trial court found that such evidence was relevant to the issues of identity and knowledge, rejecting the defendant's arguments that the evidence was cumulative, unduly prejudicial, and constituted impermissible propensity evidence. After the state rested, the trial court denied the defendant's motion for a judgment of acquittal, which claimed that the state failed to prove that fifty or more photographs depicted "child pornography" because several of the photographs did not depict children engaged in any sexual activity. Over the defendant's objection, the trial court instructed that the jury was permitted to consider the six factors articulated in United States v. Dost (636 F. Supp. 828) to determine whether any of the images depicted a "lascivious" display of the genitals or the pubic area of a child.  The defendant had argued that our Supreme Court in State v. Sawyer (335 Conn. 29) did not approve of the use of the Dost factors in jury instructions but did find that the factors are generally relevant and provide guidance in evaluating whether an image is lascivious.  The trial court also declined to provide a specific unanimity instruction requested by the defendant that would have instructed the jurors to unanimously agree on which fifty out of the fifty-seven photographs in evidence fit the statutory definition of child pornography.  Following the defendant's conviction, he appealed to the Appellate Court, and the Supreme Court transferred the appeal to itself.  On appeal, the defendant claims that (1) the evidence was insufficient to prove that he possessed fifty or more images of child pornography because thirteen images did not meet the definition of "sexually explicit conduct"; (2) the jury was improperly instructed that it could consider the Dost factors in deciding whether any of the images were lascivious; (3) his constitutional rights were violated when the trial court declined to instruct that all jurors must unanimously agree on which fifty or more images were found to constitute child pornography; and (4) the trial court abused its discretion in admitting into evidence artifacts of images deleted from the defendant's phone.