State v. Liberty, 2012 Mo. LEXIS 104

Liberty was convicted in a court-tried proceeding of one felony count of first-degree promoting child pornography and nine counts of first-degree possession of child pornography.
The Internet post underlying the promoting charge described sexual conduct involving a 5-year-old and 7-year-olds, and the post was on a pedophile site linked to Liberty.
Authorities connected the online posts to Liberty via screenshots, seizure of Liberty’s laptop and Olympus camera, and a search warrant for his residence.
The district court found Liberty guilty on all counts except one possession count; he received consecutive sentences including 12 years for promoting and 3 years on each possession count.
Liberty appealed, challenging the sufficiency of the evidence for promoting pornography and the possession counts, and arguing double jeopardy barred multiple possession convictions.
The Missouri Court of Appeals affirmed the promoting-pornography conviction, held that seven possession convictions were reversible due to unit-of-prosecution ambiguities under section 573.037, and remanded for retrial on those counts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for promoting child pornography	Liberty argues the post does not describe sexual conduct.	Liberty contends the text fails to meet 573.025.1.	Affirmed; evidence supported sexual-conduct description.
Whether possession counts depict sexual conduct	Liberty contends the images do not depict sexual conduct.	Liberty argues all counts fail for lack of sexual-conduct depiction.	Images depict sexual conduct; however seven counts reversed for unit-of-prosecution ambiguity.
Whether multiple possession convictions violate double jeopardy	Liberty maintains accumulation violates double jeopardy.	Statute unambiguously permits multiple prosecutions; if ambiguous, lenity applies.	Section 573.037 ambiguous; lenity requires reversing seven counts but retrial may proceed.
Effect of 2008 amendment to 573.037 on unit of prosecution	Amendment clarifies unit of prosecution.	Amendment does not resolve ambiguity in prior version.	Amendment supports single-unit theory for more than 20 images; court still applies lenity for seven counts.

State v. Vandevere, 175 S.W.3d 107 (Mo. banc 2005) (standard for sufficiency review in criminal appeals)
State v. Nash, 339 S.W.3d 500 (Mo. banc 2011) (standard for rational-fact-finder sufficiency review)
State v. Bateman, 318 S.W.3d 681 (Mo. banc 2010) (sufficiency review and standard guidance)
State v. Oliver, 293 S.W.3d 437 (Mo. banc 2009) (discusses interpreting sexual-conduct in images)