State v. Liberty

MARY R. RUSSELL, Judge,

concurring in part and dissenting in part.

I concur in the part of the majority’s opinion that affirms David Liberty’s sentence for the class B felony of promoting child pornography in the first degree under section 573.025.1.1 I agree with the majority that the evidence in Liberty’s case was sufficient to show “sexual conduct” as necessary to support Liberty’s section 573.025.1 conviction. Further, I agree with the majority that the evidence against Liberty was sufficient to show “sexual conduct” in the images underlying his challenged convictions for the class C felony of possession of child pornography under section 573.037.2

I respectfully dissent, however, from that part of the majority’s opinion that overturns seven of David Liberty’s eight convictions for possession of child pornography. Unlike the majority, I do not believe that Liberty’s rights under the double jeopardy clause of the Fifth Amendment were violated by his multiple possession convictions. I would hold that his multiple possession convictions were permissible under section 573.037, and I would affirm the trial court’s judgment in its entirety.

I. Double Jeopardy and Possession of Multiple Pornographic Images

A. The Standards of Review Focus on Honoring Legislative Intent

As the majority notes, in reviewing Liberty’s double jeopardy claims, this Court’s consideration of what conduct the legislature intended to proscribe under section 573.037 ensures that the double jeopardy protections against cumulative punishments confine the trial court’s sentencing discretion to the limits established by the legislature. See State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992). An appellate court weighing a double jeopardy challenge looks first to the “unit of prosecution” allowed by the statute to determine if the legislature intended, to permit cumulative punishments. See State v. Sanchez, 186 S.W.3d 260, 267 (Mo. banc 2006); see also McTush, 827 S.W.2d at 186.

The majority correctly notes that, if a charging statute does not express a limit to the unit of prosecution, the rule of lenity resolves doubts about the intended unit in favor of the defendant. See Bell v. United States, 349 U.S. 81, 83-84, 75 S.Ct. 620, 99 L.Ed. 905 (1955). But it also importantly highlights that the rule of lenity should be applied only when the court “can make no more than a guess as to what the legislature intended.”3 Fainter v. State, 174 *557S.W.3d 718, 721 (Mo.App.2005) (citing United States v. Wells, 519 U.S. 482, 499, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997)).

Careful application of these standards to give due regard to the legislature’s intent is important because “[t]he basic rule of statutory construction is first to seek the intention of the lawmakers and, if possible, to effectuate that intention.” State ex rel. Wright v. Carter, 319 S.W.2d 596, 599 (Mo. banc 1958). Nothing about the rule of lenity requires the court “to dispense with common sense or disregard an evident statutory purpose.” State v. Myers, 248 S.W.3d 19, 27 (Mo.App.2008). Where possible, this Court must ascertain legislative intent by giving statutory language its plain and rational meaning. See State ex rel. Wright, 319 S.W.2d at 599. Further, the gravamen of the offense at issue is important to the construction of the statute. Horsey v. State, 747 S.W.2d 748, 750-52 (Mo.App.1988). As such, even giving due consideration in favor of leniency, when a statute has “an expressed or obvious intent to establish substantial punishment for an offense,” the court’s construction of the statute favors punishing each act in contravention of the statute. State v. Good, 851 S.W.2d 1, 4-5 (Mo.App.1992) (citing Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958)); see United States v. Hinkeldey, 626 F.3d 1010, 1014 (8th Cir.2010) (discussing application of a possession statute’s use of the word “any” in a case challenging multiple convictions for possession of child pornography on double jeopardy grounds and stating that, even assuming “any” was ambiguous, “[t]here is a substantial argument that the court should reject a reading [of a possession of child pornography statute] that would punish an offender in possession of thousands of illicit images in the same manner as an individual in possession of a single image”).

B. Did Section 573.037 Contemplate Multiple Charges?

Unlike the majority, I cannot subscribe to Liberty’s arguments that the intended unit of prosecution for section 573.037 is not clear. I find no confusion in the legislature’s use of the word “any” that would require this Court to apply the rule of lenity to provide Liberty double jeopardy relief for his multiple convictions for possession of child pornography. Application of the rule of lenity is not necessary unless the legislature’s intended unit of prosecution for section 573.037 cannot be deciphered without “more than a guess as to what the legislature intended.” See Fainter, 174 S.W.3d at 721. In this case, it would “dispense with common sense” and “disregard [the] evident statutory purpose” of section 573.037 to conclude that the statute’s unit of prosecution was ambiguous and failed to allow for multiple possession charges against Liberty. See Myers, 248 S.W.3d at 27.

The legislature’s obvious purpose in enacting statutes criminalizing possession of child pornography is to protect children *558from exploitation. See State v. Foster, 838 S.W.2d 60, 64 (Mo.App.1992) (“one of the purposes of the child pornography statutes is to protect children from exploitation”); New York v. Ferber, 458 U.S. 747, 756, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (“The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.”). To the extent that any criminal statute is intended to deter criminal acts, there is no doubt that there is a public policy concern raised if a defendant’s possession of multiple images of child pornography featuring real or apparent child-victims is not punished according to each item possessed. Criminal statutes are intended to “encourage criminals to abandon criminal behavior,” and ruling that multiple images give rise to only a single count of possession of child pornography would provide no incentive for a possessor of child pornography to “desist from his criminality” rather than amassing a larger collection of child pornography.4 See State v. Barber, 37 S.W.3d 400, 405 (Mo.App.2001).5 When, as in this case, the State can prove that a defendant possessed multiple distinctive images of child pornography, it would defy common sense to declare that the legislature’s intent in enacting section 573.037 was to limit the phrase “any obscene material” to a single criminal charge regardless of the volume of material possessed.6

*559The State’s evidence against Liberty proved that each distinctive photograph supporting each of his separate possession counts was of a content and character known to him and was an obscene image with a child or apparent child as a participant or observer of sexual conduct. See sec. 573.037. Because each of the counts of possession of child pornography against Liberty was supported by “[separate and distinct facts” related to each unique image underlying each possession count, I would hold that the fact that his multiple possession counts had the same elements does not implicate double jeopardy concerns. See State v. Lulkowski, 721 S.W.2d 35, 37-38 (Mo.App.1986) (finding no double jeopardy violation for a defendant’s two convictions for promoting prostitution when each count was supported by the defendant’s operation of two different houses of prostitution; noting that the evidence was weighed separately for each offense).

C. Precedent Instructs That Use of “Any” Does Not Mandate a Single Possession Charge

Unlike the majority, I find the analysis in State v. Williams, 542 S.W.2d 3 (Mo.App.1976), in which multiple drug prosecutions were allowed, more persuasive than the analysis in State v. Baker, 850 S.W.2d 944 (Mo.App.1993), in which multiple prosecutions for knife possession were not allowed.

In Baker, the court addressed the unit of prosecution provided by the use of the word “any” in section 217.360.1(4), RSMo 1986, which criminalized an inmate’s possession of “[a]ny gun, knife, weapon, or other article or item of personal property that may be used in such manner[.]” 850 S.W.2d at 947. The court held that the defendant in Baker was entitled to an evi-dentiary hearing on his claim that his counsel was ineffective for failing to raise a double jeopardy challenge to his being charged with multiple weapons possession offenses for his simultaneous possession of four knives, rather than a single offense for all the knives collectively. Id. at 947-48. Citing a Florida case and federal case law, the court concluded that “any” was ambiguous as to the allowable unit of prosecution. Id.

Baker distinguished the inmate weapons possession statute at issue in that case from the drug possession statute that was addressed in Williams, 542 S.W.2d 3. See Baker, 850 S.W.2d at 948. Williams had addressed section 195.020, RSMo 1969, which provided it was unlawful for “any person ... to possess ... any controlled or counterfeit substance.” See Williams, 542 S.W.2d at 5. The defendant in Williams had alleged a double jeopardy violation based on his convictions for possession of both heroin and marijuana. Id. The court in Williams found that there was no double jeopardy violation because use of the word “any” in the drug possession statute at issue was meant to criminalize each substance that was possessed as an isolated unlawful act. Id.; see Baker, 850 S.W.2d at 948 (discussing Williams holding).

Baker determined that Williams was not persuasive for its interpretation of the inmate weapons possession statute because there were different kinds of drugs (heroin *560and marijuana) underlying the charges in Williams, whereas Baker involved charges of possessing four items of the same kind (four knives). Baker, 850 S.W.2d at 948. Baker highlighted that the State had to prove different elements for the distinct drugs underlying the charges in Williams, but in Baker the court considered that “the elements of proof were nearly identical for each count.” Id. Baker also noted that different statutes were involved in the case, and the defendant in Williams received a separate trial on each count whereas the defendant in Baker was convicted of four counts for knife possession in one proceeding. Id.

The majority agrees with Liberty that Baker is instructive to his case because, like the defendant in Baker, his possession counts involved evidence of the “same type of item” and required proof of identical elements. I cannot ignore, however, that each possession count brought against Liberty was supported by a distinct image that was presented into evidence. Even if the elements for each of Liberty’s counts for possession of child pornography were the same, the State’s evidence used- to prove the elements for each count was not identical.7 As such, while only one proceeding was brought against Liberty to address all of his possession charges, Williams’ analysis is more persuasive to Liberty’s case than is Baker’s analysis. Possession of distinctive pornographic images is not analogous to possession of four knives. Just as the prosecutor in Williams was required to present evidence proving the distinct illicit substances underlying each of the defendant’s drug possession charges, the prosecutor in Liberty’s case was required to provide evidence that each individual photograph underlying each count of possession of child pornography fulfilled the statutory requirements of the crime.8

*561In Foster, due to deficiencies in the defendant’s brief, the court found that it could not explore the double jeopardy concerns presented by the defendant in relation to his being charged with five separate counts of promoting child pornography based on his taking five separate photographs at the same location during a short time period. 838 S.W.2d at 6b. But the court did express: “the fact that defendant took five photographs of child pornography at the same location and within a relatively short period of time does not necessarily prevent prosecution, conviction and sentencing for five separate offenses.”9 Id. at 67. Similarly, I would find the fact that Liberty simultaneously possessed multiple images of child pornography did not prevent his prosecution for each of the images separately under the terms of section 573.037.

D. The 2008 Amendment to Section 573.037 Did Not Demonstrate an Intent to Prohibit Multiple Counts of Possession of Child Pornography

Further, in contrast to the majority, I find nothing in the 2008 amendment to section 573.037, which provides that an individual who possesses “more than [20] still images of child pornography” is guilty of a class B felony, that illustrates that the legislature previously did not intend to permit a separate unit of prosecution for possession of multiple items of child pornography. See sec. 573.037, RSMo Supp. 2011. I agree with the State’s arguments that the 2008 amendment did not relate to the legislature’s intended unit of prosecution but rather reflected that the legislature wished to provide an enhanced sentence for a defendant who possessed more than 20 images of child pornography.

“When the Legislature amends a statute, it is presumed that the legislature intended to effect some change in the existing law.” Harding v. Lohman, 27 S.W.3d 820, 824 (Mo.App.2000). This is because “[t]o amend a statute and accomplish nothing from the amendment would be a meaningless act,” and the legislature is presumed not to undertake meaningless acts. Id. Here, though, even if the available unit of prosecution under section 573.037 were not impacted by the 2008 amendment, the amendment was not meaningless. In addition to outlining the availability of new felony classes for possession of child pornography in the sentencing provisions of section 573.037.2, the amended version of the statute also criminalized possession of two distinctive types of materials: (1) child pornography, which need not necessarily meet the definition of “obscene” material; and (2) “obscene” ma*562terial that portrays what appears to be a minor under age 18 years. See sec. 573.037.1, RSMo Supp.2011.

Considering the statute and its amendment, I cannot find that the amendment had any impact on the appropriate unit of prosecution under the previous version of the statute. The changes made to the available penalty under the revised section 573.037.2 did not alter or modify the legislature’s use of the word “any” in section 573.037.1.

The majority declares that the 2008 amendment “clearly evidences the legislature’s intent as to the unit of prosecution” and “made clear that possession of 20 or more proscribed images constitutes only a single unit of prosecution.” See op. at 552. It cites to a federal case interpreting a statute that included the phrase “1 or more” in its statutory language outlining what types of materials and items were proscribed by the statute. See op. at 552-53 (citing United States v. Polouizzi, 564 F.3d 142, 154 (2nd Cir.2009)). The majority, however, fails to distinguish that the 2008 amendment to section 573.037 added the phrase “20 or more” only in the section 573.037.2 language relating to sentencing. Unlike the “1 or more” phrase interpreted in Polouizzi to be an explanation of the available unit of prosecution, the “20 or more” phrase in the 2008 amendment to section 573.037 was not added to modify the word “any” in the section 573.037.1 language outlining what the statute proscribed. Cf. Hinkeldey, 626 F.3d at 1014 (refusing to find plain error in a judgment affirming multiple possession convictions; distinguishing Polouizzi by noting that the statutory provision at issue in Hinkeldey used the term “any” and not the phrase “1 or more;” stating that “[t]he term ‘any5 does not obviously suggest a single unit of prosecution”).

In my view, under both versions of section 573.037, the prosecutor would need to exercise discretion in bringing the appropriate possession of child pornography charges to fit the facts and evidence involved in the case.

Because I would hold that nothing in section 573.037 required the prosecutor to bring one joint count reflecting Liberty’s simultaneous possession of multiple, distinctive photographic images of child pornography, I would affirm all of his possession convictions.

II. Conclusion

For the foregoing reasons, I would affirm the trial court’s judgment.

. All references to section 573.025 are to RSMo 2000, unless otherwise indicated.

. All references to section 573.037 are to RSMo Supp.2007, unless otherwise indicated.

. Similarly, in discussing application of the rule of lenity in De’Armond v. Commonwealth, the Virginia appellate court discussed:

‘Absent ambiguity, the rule of lenity is not applicable to guide statutory interpretation.’ United States v. Johnson [529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) ]....
'The simple existence of some statutory ambiguity,’ moreover, ‘is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.’ Muscarello v. United States [524 U.S. 125, *557138, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998)]. And the 'mere possibility of articulating a narrower construction' does not by itself make the rule of lenity applicable. Smith v. United States [508 U.S. 223, 239, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993)]. Nor can the rule be 'invoked by a grammatical possibility’ that raises a manifestly 'implausible reading’ of the legislative purpose. Caron v. United States [524 U.S. 308, 316, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998)].
Instead, the rule of lenity serves only to resolve genuine, plausible ambiguities and 'does not abrogate the well recognized canon that a statute ... should be read and applied so as to accord with the purpose intended and attain the objects desired if that may be accomplished without doing harm to its language.’ Cartwright v. Commonwealth [223 Va. 368, 288 S.E.2d 491, 493 (1982)] (citation omitted).

51 Va.App. 26, 654 S.E.2d 317, 321 (2007).

. See Fink v. Phelps, 2010 WL 2104233, at *8 (D.Def May 25, 2010) (noting that, when multiple possession of child pornography charges are disallowed, "a defendant would have no incentive to stop compiling or possessing images of child pornography after obtaining the first image, because he would expose himself to criminal liability for one count of possession or unlawful dealing no matter how many images he compiled or possessed” and this would disserve the legislative goal of protecting children and limiting their exploitation; considering the context of an entire child pornography statute in determining that multiple charges for possession of child pornography were permissible under a possession statute incorporating the word "any”).

. In Barber, the defendant was charged with multiple counts of unlawful use of a weapon under section 571.030.1(4), RSMo 1994, based on his flourishing a weapon multiple times during the course of a domestic altercation. 37 S.W.3d at 402. The court of appeals found that there was no double jeopardy violation based on the defendant's convictions for the multiple counts, reasoning that the legislature intended to allow cumulative punishments under the statute. Id. at 403-04. It noted that the statute’s aim to prevent the danger of unlawful use of a weapon was impacted each time the danger of being harmed by a weapon was presented. Id. at 404.

. Cf. State v. Fussell, 974 So.2d 1223, 1231, 1236-38 (La.2008) (discussing that ambiguity as to an intended unit of prosecution should be resolved to give effect to legislative intent where possible and noting that the legislative intent of criminalizing possession of child pornography was to prevent sexual exploitation of children; highlighting that the evidence supporting the defendant’s multiple convictions for possession of child pornography involved multiple different photographs, as the images showed different children and different sexual performances); Commonwealth v. Davidson, 595 Pa. 1, 938 A.2d 198, 215-21 (2007) (rejecting a defendant’s contention that he could not be subjected to separate convictions for each piece of child pornography that he possessed; noting the state’s argument that the defendant’s multiple charges did not violate double jeopardy because they were not based on a single criminal act given that the charges related to "separate and different pornographic images;” discussing that the legislature’s intent in the statute was to "target individual instances of possession” because "[ejach use of a minor to create a visual depiction of child pornography constitutes a separate and distinct abuse of that child” and "each image of child pornography victimized each child and subjected the child to precisely the type of harm the statute [sought] to prevent” (internal quotations omitted); declaring that the defendant was "not entitled to a volume discount”); State v. Ravell, 155 N.H. 280, 922 A.2d 685, 687 (2007) (discussing in a case challenging a defendant’s multiple possession of child por*559nography convictions that the legislature’s use of the phrase "any visual representation of a child engaging in sexual activity” in a statute intended to "prevent the proliferation of child pornography" could not reasonably be read "without regard for the volume of child pornography and the number of separate volitional acts required to obtain and store it” (internal quotations omitted); finding that the language allowed a unit of prosecution for "each and every instance”).

. In the context of analyzing if a double jeopardy violation occurred when a defendant is charged with different crimes based on conduct arising from the same set of facts, "[ajnalysis of whether the same offense is involved is limited to the statutory elements of each offense, not the evidence adduced at trial " State v. Gordon, 948 S.W.2d 673, 675 (Mo.App.1997) (emphasis added) (noting, in a case in which a defendant was charged with sodomy and incest for the same act, that "[wjhen there may be multiple convictions and therefore multiple punishments for a single act, the inquiry is limited to a determination of whether the legislature specifically authorized cumulative punishment under two statutes proscribing the same conduct”). But this rule is distinguished in the context of a case like Liberty’s, where the focus is not on a defendant being charged under two separate statutes but rather being charged with multiple counts under the same statute. If a double jeopardy violation could be shown simply because each count had identical elements, there would be no reason to assess the "unit of prosecution,” as each unit necessarily would have the same elements. A double jeopardy analysis focused on considering the legislature’s intended “unit of prosecution” requires the court to examine the elements of the crime as well as the evidence used to prove those elements. See Horsey, 747 S.W.2d at 751.

. To the extent that a distinct photograph was used to support each separate possession count, Liberty’s case is distinguishable from past cases in which double jeopardy concerns focused on the State using the same evidence to support multiple counts brought against a defendant. Cf. State v. Cunningham, 193 S.W.3d 774, 781-83 (Mo.App.2006) (finding as a matter of plain error a double jeopardy violation where the state attempted to bring multiple counts based on a defendant’s possession of one "large baggie” that contained 15 individual "baggies” of cocaine; viewing the "large baggie” as a single item of evidence, and rejecting the State's contention that multiple charges could be supported by the smaller "baggies” found within the "large baggie;” finding that there was "nothing to suggest that the legislature intended for multiple punishments for a single act of possessing the same controlled substance”); cf. also State v. Poison, 145 S.W.3d 881, 890-91, 896-97 *561(Mo.App.2004) (finding as a matter of plain error a double jeopardy violation when the State's evidence to support two counts brought against the defendant was the same precursor drug for methamphetamine (Ac-tifed found in two locations); noting that the State could not show that "the constructive joint possession, by a single defendant, of multiple quantities of the same [precursor chemical to methamphetamine] [was] legally sufficient to sustain [the defendant's] separate convictions” (emphasis added)).

. Cf. United States v. Esch, 832 F.2d 531, 542 (10th Cir.1987) (rejecting a defendant’s argument that her indictment was unconstitutionally multiplicitous and her assertion that only one crime occurred where she took multiple sexual photographic images of her two children during one photography session; discussing the allowable "unit of prosecution” at issue when the statute criminalized use of a minor to engage in "any sexually explicit conduct for the purpose of producing any visual depiction of such conduct,” and concluding that "each use of a minor to create a visual depiction constitutes a separate and distinct violation;” noting the legislative intent to "protect children from the abuse inherent in the production of sexually explicit materials”).