2013 IL App (2d) 120068
No. 2-12-0068
Opinion filed September 27, 2013
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 11-CF-344
)
PAUL F. MURPHY, ) Honorable
) Robert G. Kleeman,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justice Hudson concurred in the judgment and opinion.
Justice Hutchinson specially concurred, with opinion.
OPINION
¶1 Following a bench trial in the circuit court of Du Page County, defendant, Paul F. Murphy,
was convicted of 15 counts of aggravated child pornography (720 ILCS 5/11-20.3(a)(6) (West 2010))
and was sentenced to a 36-month term of probation. The convictions were based on defendant’s
possession of a computer thumb drive containing pornographic images of girls ranging in age from
approximately three to nine years of age. Each count pertained to a separate image. Relying on
People v. McSwain, 2012 IL App (4th) 100619, defendant argues that the simultaneous possession
of multiple pornographic images constitutes but a single offense and will not support multiple
2013 IL App (2d) 120068
convictions. The State argues that the decision in McSwain is incorrect and that, in any event,
McSwain is distinguishable. We affirm.
¶2 To understand McSwain, it is helpful to be familiar with the principles that emerged from our
supreme court’s decision in People v. Carter, 213 Ill. 2d 295 (2004). The defendant in Carter was
convicted of multiple counts of unlawful possession of a weapon by a felon. The statute defining
that offense provides, “It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon *** or any firearm or any
firearm ammunition if the person has been convicted of a felony under the laws of this State or any
other jurisdiction.” (Emphasis added.) 720 ILCS 5/24-1.1(a) (West 1996). The Carter court
examined that language in order to ascertain whether the General Assembly “intended for the
simultaneous possession of weapons and ammunition to be the same offense or separate offenses.”
Carter, 213 Ill. 2d at 302. To resolve the question, the Carter court was required to determine the
“allowable unit of prosecution” under the statute. Id. The court concluded that the word “any” made
it possible to read the statute to mean either (1) that the possession of each firearm and of firearm
ammunition constituted a separate offense or (2) that the simultaneous possession of multiple
firearms and of firearm ammunition constituted only a single offense. The statute was ambiguous
because “any” could signify “ ‘some,’ ‘one out of many’ or ‘an indefinite number.’ ” Id. (quoting
Black’s Law Dictionary 94 (6th ed. 1990)). According to the Carter court, “the term ‘any’ has
categorical meanings of ‘any one of a kind,’ ‘any kind,’ or ‘any number.’ ” Id. at 301-02. Having
determined that the statute was ambiguous with regard to the allowable unit of prosecution, the court
applied the principle that an ambiguity in a criminal statute must be resolved in the defendant’s
favor. Id. at 302 (citing People ex rel. Gibson v. Cannon, 65 Ill. 2d 366, 370-71 (1976)). The court
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therefore held that simultaneous possession of weapons and ammunition constitutes only a single
offense that will support only one conviction. The court noted that its decision was consistent with
decisions in other jurisdictions interpreting similar statutory provisions. Id. at 304-06.
¶3 The McSwain court applied these principles to the statute defining the offense of child
pornography. As pertinent to both McSwain and the case presently before us, that statute provides
as follows:
“A person commits the offense of child pornography who:
***
*** with knowledge of the nature or content thereof, possesses any film,
videotape, photograph or other similar visual reproduction or depiction by computer
of any child *** whom the person knows or reasonably should know to be under the
age of 18 *** engaged in any activity described in subparagraphs (i) through (vii) of
paragraph (1) of this subsection[.]” (Emphasis added.) 720 ILCS 5/11-20.1(a)(6)
(West 2010).
¶4 Relying on Carter, the McSwain court stated as follows:
“We find the use of the term ‘any’ in the child-pornography statute does not
adequately define the ‘allowable unit of prosecution.’ The statute is therefore ambiguous,
and we must construe the statute in favor of defendant. Like the scenario in Carter, where
the statutory language is ambiguous and in the absence of a statutory provision to the
contrary, the simultaneous possession of the images cannot support multiple convictions in
this case.” McSwain, 2012 IL App (4th) 100619, ¶ 59.
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¶5 Although an ambiguity in a criminal statute will ordinarily be resolved in the defendant’s
favor, that rule of construction—known as the rule of lenity (see People v. Jackson, 2011 IL 110615,
¶ 21)—“does not require a court to construe a statute so rigidly as to defeat the intent of the
legislature” (id.). In People v. Geever, 122 Ill. 2d 313 (1988), our supreme court observed that the
prohibition of possession of child pornography was designed to protect children from exploitation
by eliminating the market for such materials. Id. at 326. The Geever court also noted that the private
possession of pornographic images of children “exacerbates the harm and abuse to the child victim.”
Id. The Geever court explained:
“ ‘The injury suffered by child victims of pornography is akin to that experienced by
the victims of sexual abuse and prostitution. Yet, pornography poses an even greater threat
to the child victim than does sexual abuse or prostitution. Because the child’s actions are
reduced to a recording, the pornography may haunt him in future years, long after the original
misdeed took place. A child who has posed for a camera must go through life knowing that
the recording is circulating within the mass distribution system for child pornography.
Therefore, even if the child can overcome the humiliation of the act of posing itself, he must
carry with him the distressful feeling that his act has been recorded for all to see.’ ” Id. at
327 (quoting David P. Shouvlin, Preventing the Sexual Exploitation of Children: A Model
Act, 17 Wake Forest L. Rev. 535, 545 (1981)).
¶6 To hold that one who possesses child pornography commits but a single offense no matter
how many different images he or she possesses, and no matter how many children are depicted,
could severely undermine the legislative objectives of eliminating the market for child pornography.
An offender having obtained one pornographic image of one child would have a decreased incentive
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to refrain from obtaining additional images of additional children. Although by continuing to
participate in the market for child pornography an offender might increase the risk of his or her
criminal activity being discovered and might risk more serious punishment upon discovery, he or
she would remain guilty of only a single offense.
¶7 It is difficult to fathom why our General Assembly would intend such a result amounting to
what one court has referred to as a “volume discount” for possession of child pornography.
Commonwealth v. Davidson, 938 A.2d 198, 221 (Pa. 2007). In Davidson, the Supreme Court of
Pennsylvania held that, under a statute criminalizing the possession of “any book, magazine,
pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child
under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act”
(emphases added) (18 Pa. Cons. Stat. § 6312(d) (____)), the unit of prosecution consisted of each
such item in the offender’s possession. Davidson, 938 A.2d at 218. The Davidson court explained:
“The [Pennsylvania] General Assembly’s use of the term ‘any,’ which could mean one or
more items, suggests a lack of restriction or limitation. Further, all of the objects listed in
the statute are singular, e.g., a ‘photograph’ or a ‘computer depiction,’ meaning that each
photograph or computer depiction constitutes a distinct occurrence of offensive conduct ***.
[The applicable statute] specifically criminalizes possession of any computer depiction, not
possession of a computer hard drive which could contain an unknown quantity of images.
[Citation.] The plain language of the statute evidences the intent of the General Assembly
to make each image of child pornography possessed by an individual a separate, independent
crime ***.” Id. at 219.
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The Davidson court observed that, by holding that possession of separate images constitutes separate
crimes, it had aligned itself with the significant majority of jurisdictions that have considered the
question. Id.
¶8 In the statute at issue here, like the Pennsylvania child pornography statute at issue in
Davidson, the prohibited items are singular. The statute proscribes possession of any “photograph,”
not “photographs,” and any “depiction,” not “depictions.” This weighs in favor of interpreting “any”
to mean any one item of pornography in any one of the various media described in the statute. We
recognize that the statute at issue in Carter similarly proscribed possession of any “firearm,” not
“firearms.” The statute also proscribed possession of any “firearm ammunition,” a term that can be
either singular or plural. The Carter decision did not address the significance of the General
Assembly’s use of the singular word “firearm” in determining that possession of multiple firearms
and ammunition is a single offense. More importantly, however, the Carter court’s application of
the rule of lenity did not produce a result antithetical to the purpose of the statute.
¶9 Unlike the weapons offense at issue in Carter, possession of child pornography involves
specific, individual victims, and the extent to which a particular child is victimized through the
production of pornographic materials might very well depend on the demand for images of that
child. Applying the rule of lenity to permit only one punishment for possession of multiple images
of different children increases demand for those images by lowering the price for acquiring child
pornography. Mechanically extending the analysis in Carter to this case without regard to the
obvious and fundamental differences between the possession offenses involved in the two cases does
not give effect to the legislative intent in any meaningful way.
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¶ 10 Arguably, the McSwain court’s reliance on Carter was misplaced. Even though that case
involved images of a single child, offering pedophiles a “volume discount” for pornographic images
of a particular child increases the demand for such images and might result in the continued
exploitation of that child. We need not reach the question of whether McSwain was correctly
decided, however. Even assuming, arguendo, that it was the General Assembly’s intent that
possession of multiple pornographic images of the same child should constitute but one offense, for
the reasons discussed above we reject the suggestion that the General Assembly could have intended
the same result where the offender is in possession of images of multiple children.
¶ 11 For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.
¶ 12 Affirmed.
¶ 13 JUSTICE HUTCHINSON, specially concurring.
¶ 14 I agree with the majority that the trial court’s judgment should be affirmed. However, I
believe that McSwain is distinguishable and that any discussion regarding the propriety of that
decision is unnecessary to the resolution of this case.
¶ 15 In McSwain, the reviewing court addressed whether a defendant who received a single email
that contained five separate images of the same child could be convicted of five counts of child
pornography. McSwain, 2012 IL App (4th) 100619, ¶ 48. Relying on our supreme court’s decision
in Carter, the court in McSwain found that the legislature’s use of the word “any” did not adequately
define the “allowable unit of prosecution” and thus the court construed the statute in the defendant’s
favor. Id. ¶ 59. The court concluded that “if the General Assembly wants to authorize multiple
convictions for child pornography based on the simultaneous possession of images of the same minor
displayed in a single e-mail, it knows how to do so.” (Emphasis added.) Id. ¶ 64.
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¶ 16 Despite the significant factual differences, the majority discusses McSwain and concludes
that “[t]o hold that one who possesses child pornography commits but a single offense no matter how
many different images he or she possesses, and no matter how many children are depicted, could
severely undermine the legislative objectives of eliminating the market for child pornography.”
(Emphasis added.) Supra ¶ 6. I would prefer not to ascribe such an overly broad interpretation to
McSwain but, rather, would limit McSwain to its specific circumstances.
¶ 17 Therefore, I specially concur.
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