David A. Girard was indicted on May 23, 2001, for 26 counts of possessing obscene matter, violations of §
Girard appealed to the Court of Criminal Appeals. That court reversed the judgment of the trial court and remanded the cause for the trial court to vacate all but one of the convictions and sentences. Girard v. State,
The interpretation of a statute involves a question of law and an appellate court reviews a trial court's interpretation de novo, without any presumption of correctness. Simcala, Inc. v.American Coal Trade, Inc.,
The Court of Criminal Appeals set out the following summary of the pertinent facts:
"The facts adduced at trial indicate that a search of Girard's home, including his personal computer, yielded numerous downloaded images and videos of underage boys. The images were found on a disc in Girard's computer and on the hard drive on his computer. The files dated from April 3, 1998, and were, for the most part, downloaded on different days. Some files contained multiple images."
The record reveals that Girard met a young male ("C.L.") in an Internet chat room in May 2000. C.L., who was 18 years old at the time of the trial in May 2002, testified that "a couple of times" Girard sent him "pictures of nude kids." C.L. testified that he subsequently visited Girard and that he "brought discs that contained pictures of what [Girard] had sent to me." Soon after C.L. left his home to visit Girard, his parents filed a missing person's report, and Brian Middleton, a police investigator, testified that the report stated "that [C.L.] was possibly with Mr. Girard." C.L. testified that after he learned that his parents had filed a missing person's report, he went to the police station because he "wanted to clear up the missing person's report." Middleton testified that while C.L. was at the police station, he "indicated to me that he was in possession of the disc that he admitted to be child pornography." Middleton stated that C.L. did not have the discs with him at the police station, rather "[t]hey were in Mr. Girard's possession." Thereafter, Middleton obtained a warrant to search Girard's house.
In its order reversing the judgment of the trial court, the Court of Criminal Appeals stated, in relevant part:
"Girard advances only one argument on appeal. He argues that the trial court erred to reversal when it denied his motion to strike counts 2 through 26 as extraneous.
". . . .
"The statute under which Girard was indicted for 26 violations reads, in pertinent part, as follows:
"`Any person who knowingly possesses any obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony.'
"§
"This is not a case where the same act or transaction constitutes a violation of two distinct statutory provisions. See Blockburger v. United States,
284 U.S. 299 [,, 52 S.Ct. 180 ] (1932). Rather, this is a case where Girard's conduct has yielded an indictment in which the possession of each file of obscene material has been charged as a separate crime under the same statute. The pertinent inquiry in deciding whether this is acceptable in the face of constitutional guarantees against double jeopardy then becomes defining the correct *720 unit of prosecution. Bell v. United States, 76 L.Ed. 306 349 U.S. 81 [,, 75 S.Ct. 620 ] (1955). 99 L.Ed. 905 "`"A single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense. Const. of 1901, Art. I, § 9; U.S. Const. Amend. V." Ex parte Darby,
, 516 So.2d 786 787 (Ala. 1987). Such question of double jeopardy is determined by the following principles:"`"It has been aptly noted that `the Blockburger [v. United States,
, 284 U.S. 299 , 52 S.Ct. 180 (1932),] test is insufficient where . . . the concern is not multiple charges under separate statutes, but rather successive prosecutions for conduct that may constitute the same act or transaction.' Rashad v. Burt, 76 L.Ed. 306 (6th Cir. 1997). This is because when `a defendant is convicted for violating one statute multiple times, the same evidence test will never be satisfied.' State v. Adel, 108 F.3d 677 , 136 Wash.2d 629 (1998). The `appropriate inquiry' in such a case `asks what `unit of prosecution' was intended by the Legislature as the punishable act. . . . The inquiry requires us to look to the language and purpose of the statutes, to see whether they speak directly to the issue of the appropriate unit of prosecution, and if they do not, to ascertain that unit, keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant's favor.' Commonwealth v. Rabb, 965 P.2d 1072 , 431 Mass. 123 (2000) (concluding that allegedly multiple drug possessions justify multiple charges if the possessions are sufficiently differentiated by time, place or intended purpose, the case here regarding defendant's possession of drugs at his residence for immediate sale and his possession of drugs at motel for future sales)." 725 N.E.2d 1036 "`4 Wayne R. LaFave et al., Criminal Procedure § 17.4(b), 2001 Pocket Part n. 66 (2d ed. 1999). See also Project, "Twenty-Ninth Annual Review of Criminal Procedure," 88 Geo. L.J. 879, 1293 (2000) ("when the government seeks to prove that a single act or occurrence results in multiple violations of the same statute, the rule of lenity requires only one punishment unless legislative intent to impose multiple punishments is shown").'
"Townsend v. State,
, 823 So.2d 717 722 (Ala.Crim.App. 2001) (footnote omitted)."The Court of Criminal Appeals has addressed Girard's argument regarding multiple prosecutions one time and then only in dicta. In Harris v. State,
(Ala.Crim.App. 1989), the defendant was indicted for four counts of possession of obscene material, violations of § 563 So.2d 9 13A-12-192 (b), Ala. Code 1975. Harris filed a `motion to dismiss the indictment as being multiplicitous, or in the alternative, motion to compel an election by the State as to the count it intends to prosecute.'563 So.2d at 9 . The trial court denied the motion, and Harris subsequently pleaded guilty and received concurrent sentences of five years in prison. The Court of Criminal Appeals held that Harris had waived this argument by pleading guilty subsequent to the denial of his motion, but continued:"`Harris was charged in a four-count indictment with four separate violations of §
13A-12-192 (b). Count one alleged the possession of a pornographic magazine. Counts two, three, and four each involved the possession of a different video cassette tape. *721 Harris contends that he should have been convicted and sentenced for only one offense, because the magazine and cassette tapes were seized from his residence on the same occasion. We recognize that this argument may have considerable merit. See United States v. Meyer,, 602 F.Supp. 1480 1480-81 (S.D.Cal. 1985) (the appropriate unit of prosecution for offenses of transportation of material involving sexual exploitation of children and importation of obscene material, arising from defendant's transporting several photographs in one binder, was one count for each offense, rather than one count for each photograph for each offense); Braunstein v. Frawley,, 64 A.D.2d 772 , 407 N.Y.S.2d 250 253 (1978) ("[t]he promotion or possession of more than one item at the same time and on the same date constitutes one crime, and cannot be split into as many crimes as there are items"); State v. Smith,, 323 N.C. 439 , 373 S.E.2d 435 438 (1988) ("[o]ther courts have similarly held that a single transaction involving obscene materials constitutes but one offense"). See also United States v. Kinsley,(8th Cir. 1975) (possession of firearms); Vogel v. State, 518 F.2d 665 , 426 So.2d 863 878-82 (Ala.Cr.App. 1980), affirmed,(Ala. 1982), cert. denied, 426 So.2d 882 , 462 U.S. 1107 , 103 S.Ct. 2456 (1983) (possession of drugs); Owens, Alabama's Minority Status: A Single Criminal Act Injuring Multiple Persons Constitutes Only a Single Offense, 16 Cum. L.Rev. 85, 105-06 (1985) (discussed in McKinney v. State, 77 L.Ed.2d 1335 (Ala. 1987)). However, this issue has not been preserved for review.' 511 So.2d 220
"
"The act rendered illegal by the statute — the possession of any obscene matter,² even if the possession is of multiple pieces of obscene matter — is simultaneous and inseparable, more like the simultaneous, single act of transportation or importation of multiple pieces of obscene matter, see United States v. Meyer,
(S.D.Cal. 1985), than the separate transactions involved in the distribution of multiple pieces of obscene matter, see King v. State, 602 F.Supp. 1480 (Ala.Crim.App. 1995). Thus the unit of prosecution is the simultaneous possession of a collection of obscene material; in this case, there was but one possession. 674 So.2d 1381 ² The trial court, rather than let the indictments stand as pertaining to each piece of obscene matter, decided that the correct unit of prosecution was each individual computer file, even though each file may have contained multiple images, presumedly because each file was created, downloaded, or received via e-mail on a separate day. However, the statute does not proscribe the act of downloading obscene material or the act of receiving obscene material or the act of creating files of obscene material. The statute proscribes the act of possessing any obscene material."
In its brief filed in support of its petition for the writ of certiorari, the State argues that "[t]he plain language of Alabama's statute prohibiting the possession of child pornography indicates that the unit of prosecution is each obscene image possessed by the defendant." The State explains in its brief:
"[T]he Alabama Legislature has in plain language prohibited possession of obscene `matter' depicting children under 17 in sexual poses. The Legislature has defined `matter' in units that vary in scope from a single image (a `picture' or `photograph') to a collection of images in a single storage medium (a `book' or `magazine'). The statute also defines an *722 `electrical or electronic reproduction' in the singular as `matter' whose possession is wrongful. The statute does not identify any computer storage devices that might contain multiple images, such as a CD-ROM or a hard disk drive, as `matter.'
"The Court of Criminal Appeals' ruling that Girard's entire computer collection of child pornography should be treated as a single unit thus flies in the face of the plain language of the statute. The closest analogy in the statute to the `matter' that Girard possessed is an `electronic reproduction' in the singular. Indeed, the Court of Criminal Appeals has already held that an `electrical or electronic reproduction' includes a computer-based image. Rutledge v. State,
, 745 So.2d 912 917 (Ala.Crim.App. 1999). The most natural reading of the statute, therefore, is that the State was entitled to prosecute Girard for each computer-based image of child pornography that he possessed, whether stored on one or multiple media."
The State cites King v. State,
"Any book, magazine, newspaper, or other printed material, or any picture, photograph, motion picture or electrical or electronic reproduction, or any other articles or materials that either are or contain a photographic or other visual reproduction of a live act, performance, or event."
As opposed to the definition of material found at §
Further, other statutes that address the crime of possession criminalize the act of possession, regardless of how many items the offender actually possessed. For example, §
*723"(a) A person commits the crime of possession of burglar's tools if he:
"(1) Possesses any explosive, tool, instrument or other article adapted, designed or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking; and"(2) Intends to use the thing possessed in the commission of an offense of the nature described in subdivision (a)(1) of this section."
(Emphasis supplied.) Section
"(a) A person commits the crime of criminal possession of explosives if he possesses, manufactures, buys, sells or transports any explosive, and intends that the explosive be used in the commission of a crime involving violence to another person or destruction of another's property."
(Emphasis supplied.) Similarly, §
"(a) A person commits the crime of criminal possession of noxious substances if he possesses, manufactures or transports any stink bomb or device, irritant, offensive-smelling or injurious substance, and intends that the injurious article or substance be used in the commission of any crime."
(Emphasis supplied.)
These statutes use language similar to that of §
"(b) Any person who knowingly possesses any obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony."
(Emphasis supplied.)
Correspondingly, in McKinney v. State,
"`How, then, should the unit of prosecution be described so that an intent to allow multiple convictions is clear and unequivocal? Instead of using the word "any" to describe the unit of prosecution, the singular words "a" or "another" should be used. An examination, then, should be made of the Alabama Criminal Code to see how the unit of prosecution is described. This examination will disclose whether the code allows multiple convictions.
"`A review of the criminal code discloses that there are basically four categories into which the statutes can be divided. . . . The second category contains statutes in which the unit of prosecution is described with the word "any"; based on the above mode of statutory construction, only one conviction should be allowed.'"
Accordingly, we conclude that proper unit of prosecution for the offense of possession of obscene matter under §
Therefore, the Court of Criminal Appeals correctly reversed the judgment of the trial court and remanded the cause for the trial court to vacate all but one of the convictions and sentences. Accordingly, we affirm the judgment of the Court of Criminal Appeals.
AFFIRMED.
HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, WOODALL, and STUART, JJ., concur.
"Any book, magazine, newspaper, printed or written matter, writing, description, picture, drawing, animation, photograph, motion picture, film, video tape, pictorial representation, depiction, image, electrical or electronic reproduction, broadcast, transmission, telephone communication, sound recording, article, device, equipment, matter, oral communication, live performance, or dance."