CONCORD — A Hanover man is seeking to have his conviction on child pornography charges overturned by the state’s Supreme Court, arguing that he was unaware the sexually explicit images were on his computer and the state lacked sufficient evidence to accuse him of the crime.

Roland Higgins, a retired Keene State professor, was convicted of possessing and distributing child pornography in Grafton County Superior Court in 2022. Last year, he was sentenced from four to 10 years in state prison with an additional six to 12-year sentence, which was suspended for 10 years following his release.

He remains home in Hanover pending his appeal.

“There is no evidence of what Mr. Higgins searched for and there’s no evidence that if those were files that were on his computer that he ever actually saw and read them,” Cabot Teachout, Higgins’ attorney, told the five members of the New Hampshire Supreme Court during oral argument in Concord on Tuesday, explaining that case law requires that a defendant must have “actual knowledge” of the images to be found guilty.

Slightly longer than 30 minutes was allotted to the opposing attorneys — Teachout and Assistant Attorney General Audriana Mekula on behalf of the state. They each had 15 minutes to present their respective positions, arguments that at times delved into the technical intricacies of BitTorrent, the opaque file sharing program through which the sexually explicit images on Higgins’ computer were transmitted.

“I don’t want to get into a debate about the torrent and all that,” Senior Associate Justice James Bassett said to Teachout at the outset. “But isn’t the main point that this stuff wouldn’t be on the computer if there hadn’t been an affirmative action to put it there?”

Teachout replied accessing content on BitTorrent does require an action on the part of the user but that the structure of the technology is such that requests for content can trigger tens of thousands of files in return, some of which may contain illicit images unknown to the user.

When questioned by investigators at his office in Keene, N.H., in 2018, Higgins acknowledged he would sometimes download a file named “Russian model” or look at pictures labeled “teenage models,” but he denied searching out sexually explicit images of minors on BitTorrent.

Superior Court Judge Lawrence MacLeod, following a two-day bench trial in 2022, found Higgins guilty on all the counts he was charged, saying he was not persuaded by the defendant’s claim that he was unaware the illicit images were stored and shared on his computer.

“The evidence is convincing to the Court beyond a reasonable doubt that, in fact, (Higgins) did know that he downloaded” sexually illicit content, MacLeod concluded, adding that Higgins had made “incriminating and damaging statements in his interview with the police” and in the “totality” of evidence his denials were not “credible.”

But Teachout told the justices on Tuesday that although there is no dispute the illicit images were on Higgins’ computer, prosecutors lacked any evidence that could prove his client either deliberately sought out child porn or was aware that the images he was charged with possessing were on his computer. (BitTorrent technology allows content to be sent from a user’s computer without their action or knowledge).

Regardless, Teachout maintained case law has established that “even for someone who has looked for this kind of material in the past, that is still not sufficient to establish actual knowledge of specifically charged images.”

Mekula, the assistant attorney general, hit back hard at Teachout’s arguments, assuring the justices that there was adequate evidence of Higgins’ guilt and that investigators had found other illicit content on the defendant’s computer for which he had not been charged.

She said that Higgins, in interviews with investigators, had demonstrated a sophisticated knowledge of the technology behind BitTorrent, including that a user’s own computer can be a source to distribute content to other users without them being aware of it.

“There is direct and circumstantial evidence that the defendant possessed every single one of those files,” she said.

But, responding to a question from Bassett asking if it is the state’s position that the defendant did not even have to view illicit content to be charged with “possession or actual knowledge,” Mekula replied in the affirmative.

“Correct … another way to prove ‘actual knowledge’ would be to prove that the defendant had those images and that he had dominion or control over them,” she said, citing case law.

Mekula said that Higgins assertions to investigators that he was only interested in images of young models was disingenuous, pointing out that his credibility was undercut by his “body language” and “stuttering” when investigators informed him illicit images had been found on his computer.

“He may have said he was interested in ‘Russian models’ … but he was actually interested in looking at 12-year-old girls” who were posing in “lewd positions,” which even if it did not involve “sexual acts” between adults and minors still falls under the state statutes for child pornography.

Teachout closed the oral arguments by arguing that any illicit images landed on Higgins’ computer inadvertently and he did not intentionally seek them out.

“Someone who uses BitTorrent goes to an ‘indexing’ site. They chose a torrent to download. It may list 10,000 images. You don’t see all the images for the files that are in that torrent and you agree to download it and then it’s on your computer, whether or not you ever look at it or ever know it’s there or ever read the file names,” he said.

Contact John Lippman at jlippman@vnews.com.