dissenting.
The State filed an information charging Mather with 18 counts of knowingly making a visual depiction of sexually explicit conduct based on 18 separate photographs. Mather was convicted on all 18 counts and was sentenced to a term of 3 to 5 years’ imprisonment on each count, with the sentences to run concurrently. I respectfully disagree with the majority’s statutory interpretation of how many criminal acts were committed.
Neb. Rev. Stat. § 28-1463.03 (Reissue 1995) provides in relevant part: “(1) It shall be unlawful for a person to knowingly make ... create ... or in any manner generate any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers.” The term “visual depiction” shall mean “live performance or photographic representation.” See Neb. Rev. Stat. § 28-1463.02(6) (Reissue 1995).
The question of how many convictions can lawfully be obtained under circumstances such as those in the case at bar is a question of the appropriate unit of prosecution, and that is a question of legislative intent. See Castaldi v. United States, 783 F.2d 119 (8th Cir. 1986), cert. denied 476 U.S. 1172, 106 S. Ct. 2897, 90 L. Ed. 2d 983. With respect to federal law, when Congress fails to set the unit of prosecution with clarity, doubt as to congressional intent is resolved in favor of lenity for the accused. See United States v. Kinsley, 518 F.2d 665 (8th Cir. 1975).
In Kinsley, the court confronted the issue of whether a felon’s possession of four firearms constituted one or four violations of 18 U.S.C. app. § 1202(a) (1970), which prohibited a convicted felon’s possession of “ ‘any firearm.’ ” See 518 F.2d at 666. The court noted that in many cases in which courts have found ambiguity in connection with the allowable unit of prosecution, the object of the offense has been prefaced by the word “any.” The *196court concluded that the phrase “any firearm” in 18 U.S.C. app. § 1202(a) was ambiguous. In contrast, the court noted that because I.R.C. § 5861(d) (1970) is drawn in terms of ‘“a firearm,’ ” the provision arguably suffers from no ambiguity. See Kinsley, 518 F.2d at 670 n.9.
In U.S. v. Coiro, 922 F.2d 1008 (2d Cir. 1991), the court held that 18 U.S.C. § 1510(a) (1982), which prevents the obstruction, delay, or prevention of the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator, was ambiguous with respect to the allowable unit of prosecution. The court found that use of the word “any” in the phrase “any person” made the phrase ambiguous. It stated that in cases in that and other circuits, the word “any” has typically been found ambiguous in connection with the allowable unit of prosecution, for it contemplates the plural rather than specifying the singular, relying on United States v. Kinsley, supra.
Courts have also noted the difference between the use of the terms “a” and “any” in cases involving pornography. See, U.S. v. Kimbrough, 69 F.3d 723 (5th Cir. 1995); State v. Parrella, 736 So. 2d 94 (Fla. App. 1999); American Film Distributors, Inc. v. State, 471 N.E.2d 3 (Ind. App. 1984). These cases conclude that when the statute uses “any” instead of “a,” the intent of the legislature is not clear, and the cases must be resolved against turning a single transaction into multiple offenses.
For example, the majority relies in part on Burk v. State, 705 So. 2d 1003 (Fla. App. 1998). In Burk, the statute criminalized the production of “a” sexual performance of a child. There, the court held that it was permissible to charge a defendant with 25 counts for 25 different photographs. But other Florida cases have held the opposite when the statute used the term “any” instead of the term “a.”
In Parrella, the fourth district of the Florida Court of Appeals, the same district that decided Burk, held that the showing of multiple movies containing child pornography could not be charged as separate counts when the statute criminalized the possession of “any” motion picture. The court specifically stated that when the term “any” is used instead of the term “a,” the legislature intended only a single unit of prosecution. See, also, *197Wallace v. State, 724 So. 2d 1176 (Fla. 1998) (discussing difference between terms in case involving resisting police officer).
The majority relies on State v. Multaler, 252 Wis. 2d 54, 643 N.W.2d 437 (2002), as an example in which multiple counts were permissible under a statute that utilizes the term “any.” In Multaler, there were more than 28 separate image files. Multaler began downloading images over a period of time. The court determined that since there were more than 28 separate files, every time Multaler downloaded a new file, he recommitted himself to additional criminal conduct. The statute in question provided: “ ‘Whoever possesses any ... photograph, motion picture, videotape ... is guilty of a ... felony.’ ” Id. at 81, 643 N.W.2d at 450. The court found that because Multaler had downloaded, compiled, and stored multiple images overtime, multiple punishments were appropriate. Therefore, I find Multaler to be factually distinguishable. In addition, to the extent Multaler is read to hold that in all cases, separate counts may be imposed per photograph, I disagree with its reasoning.
In the case at bar, § 28-1463.03(1) refers to “any visual depiction of sexually explicit conduct.” Mather took 18 photographs of T.P., and the majority has determined that each photograph constituted a separate offense and that Mather was properly charged with 18 counts.
In my opinion, § 28-1463.03 is ambiguous because of the phrase “any visual depiction.” In this case, one could logically conclude that two separate events occurred because two photographs were taken when Mather and T.P. were near a lake and Mather then drove to an area 5 miles west of Weeping Water and took 16 more photographs of T.P. at a different location. Following this line of reasoning, two separate counts would be appropriate. See State v. Root, 141 Wash. 2d 701, 710, 9 P.3d 214, 218 (2000) (Supreme Court of Washington, en banc, held that correct unit of prosecution was “per photo session” involved).
Another problem with § 28-1463.03 is that equally culpable conduct may be charged differently. For example, a 10-minute live performance in which a child depicts sexually explicit conduct may be charged as one count. If the child is photographed using a standard 35-mm motion picture camera, which would produce the equivalent of 14,400 still frames, *198each frame could be charged as a separate count. Unlike criminal statutes in other jurisdictions, which describe the terms “photograph,” “motion picture,” “photographic negative,” or “videotape,” § 28-1463.02(6) defines “visual depiction” as “live performance or photographic representation.”
Separate criminal conduct may be charged in the same act if the Legislature expressly so provides, but if the Legislature does not expressly provide, or when it fails to set the unit of prosecution with clarity, any doubt as to the Legislature’s intent is to be resolved in favor of the accused. I find nothing in § 28-1463.03 which suggests that the Legislature intended to impose multiple punishments depending on the number of photographs taken during a photography session in which a minor engages in sexually explicit conduct.
In my opinion, the statutory provision “in any manner generate any visual depiction of sexually explicit conduct” is ambiguous, and the ambiguity should be construed in favor of a criminal defendant. See § 28-1463.03. While Mather committed a serious act, for which a serious punishment should be imposed, I believe it would have been more appropriate to charge him with 2 counts rather than 18.
Connolly and McCormack, JJ., join in this dissent.