CONCORD — The New Hampshire Supreme Court denied a Hanover resident and former Keene State professor’s appeal to overturn his conviction on child pornography charges, holding that evidence in the case supported the trial court’s guilty verdict issued 19 months ago.
Roland Higgins, 77, was indicted on charges of possessing and distributing child pornography in 2018. He was convicted following a two-day bench trial in Grafton County Superior Court in 2022.
Higgins, a retired professor of East Asian and world history, has been free on bail and living at home in Hanover pending appeals since his indictment five-and-a-half years ago. He was sentenced in 2023 to serve four to 10 years in state prison on one set of charges and received an additional suspended six to 12-years sentence on another set of charges.
“The record includes sufficient evidence to convict the defendant of knowingly possessing” the illicit images, Associate Justice Patrick Donovan wrote in a 13-page opinion in which Chief Justice Gordon McDonald and Associate Justice James Bassett concurred (Associate Justice Anna Barbara Marconi recused herself from the case). They also found that the trial court further could rationally have found that Higgins knowingly distributed the images.
In 2023, Higgins appealed his guilty verdict to the Supreme Court on grounds that the trial court erred in concluding there had been sufficient evidence to establish that he had both knowingly possessed and shared the child pornography investigators had retrieved from his computer.
But in upholding the trial court’s guilty verdict, the Supreme Court this week released its opinion siding with the lower court’s decision rejecting Higgins’ claim that he had inadvertently downloaded illicit images from the internet, and was unaware those images were on his computer and able to be shared with others.
“We feel the New Hampshire Supreme Court overlooked some of the most crucial elements of our appeal, so we are going file a motion asking them to reconsider their decision,” Cabot Teachout, Higgins’ attorney, said on Thursday.
At the heart of Higgins’ appeal was the opaque technology BitTorrent, a file-sharing program associated with the “dark web” that allow users to download illicit content but also — without any affirmative action by the user — turns the user’s computer into a source of illicit content for other users.
Higgins maintained that the illicit images found on his computer were the result of them having been inadvertently vacuumed up by BitTorrent in his search for legal “erotica” — some of it admittedly involving younger girls but not technically crossing the line into child pornography — and that he had been unaware this computer was “passively” feeding those illicit materials to others.
In its analysis of the possession and distribution convictions, the Supreme Court found that the trial court had correctly applied the legal standards in the relevant New Hampshire state case law in ruling Higgins was guilty of both charges. The court also found he had taken affirmative steps to access the illicit content.
The justices affirmed the lower court’s finding that Higgins had made incriminating statements to police during their investigation that he had at times in the past seen child pornography on the internet (those admissions were not directly tied to the images cited in his indictment).
The Supreme Court — which as a matter of course accepts the facts in an appeal found by the lower court and said its analysis is conducted “in the light most reasonable to the state” — held that Higgins’ admissions made it unnecessary for the state to prove that he had ever opened or viewed the specific images that were charged in the indictments.
Regardless, the justices said that even if Higgins did not affirmatively distribute the illicit images to other users, simply having the BitTorrent program — which allows for other users to access those images without the owner’s action or knowledge — installed on his computer is itself tantamount to distribution.
Citing two federal cases — one of them, the justices noted, was written by U.S. Supreme Court Associate Justice Neil Gor such when he served on the 10th Circuit court in Colorado — “distribution” can be judged to occur even when a defendant did not actively elect to send the files.
“Although we have not yet addressed knowing distribution of child sexual abuse images in the context of peer-to-peer file-sharing network such as BitTorrent, we too are persuaded by the reasoning” in Gorsuch’s opinion, Donovon wrote in his opinion.
“We agree that, regarding the element of knowing distribution, ‘[w]hen an individual consciously makes files available for others to take and those files are in fact taken, distribution has occurred,’ ” Donovon wrote, quoting from the other case in the U.S. Court of Appeals for the 1st Circuit.
Higgins’ motion for reconsideration is due May 24. It is rare for the court to ever reverse itself — motions to reconsider are typically denied without further argument — which means the next step would be for the Supreme Court to issue issue its final opinion along its final mandate to Grafton County Superior Court proceed accordingly, which in turn would lead a court hearing or the court simply order Higgins to report to prison.
Contact John Lippman at jlippman@vnews.com.
