PROVIDENCE R.I. (WPRI) - Prosecutors in the video voyeurism case against former state Sen. Nicholas Kettle are pushing back against a request by defense attorneys to drop four charges, arguing the law isn't just about where images were taken, but also where they are stored.
In July, a lawyer for Kettle asked the courts to dismiss four of the 10 counts in his video-voyeurism case. The attorney alleged Kettle took the illicit photos out of state, so the court lacks jurisdiction over those four charges.
On Friday, prosecutors filed a response that asserted it is illegal to safe-keep images taken without a person's permission because the video voyeurism law includes the word "store."
"In other words, the Defendant argues that storing is a discrete act, as opposed to continuing crime," Assistant Attorney General Owen Murphy wrote in the response to Kettle's motion. "To effect the Defendant’s definition, the General Assembly would have had to draft a statute that precluded, capturing, recording, transmitting, and scrapbooking."
- UPDATE 8/22/2018: Judge Daniel Procaccini has sided with prosecutors and denied Kettle's motion to dismiss charges.
They argue Kettle returned from New Hampshire with the images on his iPhone. As evidence, they included in the motion text messages between Kettle and his friend.
According to investigators, Kettle's friend texted, “Do you have any pictures of her or anything?” Kettle responded, “Yes I do.”
"The Defendant subsequently sent four pictures, including one picture taken in New Hampshire," prosecutors wrote. "The Defendant continued, 'I don’t have any pics of myself if you want I can take some and send to you later I have more of her? Do you want them and you can send me what else you got.'"
His friend responded, “Yeah send it all,” according to the motion, and Kettle obliged.
"By safekeeping the New Hampshire images on his iPhone after he returned to Rhode Island, the Defendant stored the images while he was in Rhode Island," wrote prosecutors.
Kettle, a 27-year-old Coventry Republican, was arrested in February and indicted the following month on charges that he secretly took nude images of his girlfriend, then shared them with a friend in New Hampshire in exchange for photos of the friend's wife.
Kettle has pleaded not guilty.
Reached by phone, Kettle's attorney, Paul DiMaio, said they plan to file another motion in the coming days after he said they learned Kettle's then-girlfriend had pictures of the defendant on her phone.
"My client doesn’t remember she took those photographs," DiMaio said. "What's good for the goose is good for the gander."
He said the motion will be asking if any "promises or inducements" were made for the girlfriend to cooperate in the case.
Laura Meade Kirk, a spokesperson for the Rhode Island State Police, said detectives aren't aware of the claim.
"If Mr. Kettle has evidence of a crime, he should contact us and we will investigate," she said.
Both sides will be in court Aug. 22 to argue the motion to dismiss.
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