*1 appellee, Nebraska, State appellant. Wyman R. Mather, 646 N.W.2d No. S-01 -738. Filed June 2002. Bear, Defender, E. Cass County Julie Public Deputy P.C., Reinsch & Slattery, appellant. General,
Don Stenberg, Attorney Marilyn B. Hutchinson for appellee. C.J., Wright, Hendry, Connolly, Gerrard, Stephan, JJ.
McCormack, Miller-Lerman, J. Miller-Lerman,
NATURE OF CASE *2 5, 2001, On R. Mather was convicted April Wyman jury by in the district court of 18 of for Cass counts County depic- of tion conduct which has of sexually a child as one its in of (Reissue violation Neb. Rev. Stat. 28-1463.03 participants 1995) of the Child Prevention Act. Mather was sen- Pornography of tenced on each the 18 counts to a term 3 imprisonment the to and district court the run years, ordered that sentences Mather concurrently. his convictions and sentences. appeals that, On Mather claims if his conduct amounted appeal, guilty, counts, to one offense rather than 18 cer- continuing that admitted, was tain evidence erroneously and that his sentences We are excessive. conclude that based the statutory language, and because of the 18 differing photographs represented violation either (3), under or Mather’s error; convictions on 18 were counts not that the district did court not err in its and that the evidentiary ruling; sentences are not excessive. we affirm. Accordingly,
STATEMENT OF FACTS Mather ais who had a in photographer studio his home in Water, Nebraska. In Weeping or October T.P. September made an her get to school senior appointment high photographs time, T.P., 25, 1982, taken At Mather. who was bom May afternoon, 17was old. T.P. arrived at the studio in years after her arrival she and Mather shortly left the studio to take outdoors. were taken at loca- various photographs Photographs Water, tions within at a near a Weeping including ballpark, church, aby lake.
At told that he taken some Mather T.P. had nude pho- point, women he nude for their husbands tographs thought she was beautiful. Mather asked T.P. whether photography said, some and T.P. “Okay.” wanted to take nude photographs, lake, While were near took Mather two they T.P. which she had Mather then drove jeans. her unzipped Water, T.P. to an area 5 miles west of approximately Weeping with a bam and as “a out country described T.P. place was the location within Cass County. little creek.” T.P. testified location, of T.P. took 16 additional photographs At this Mather nude and in or near in which she completely completely were and/or her displayed. which her breasts genitals session, was beautiful and Mather told T.P. she Throughout his hands her her on how to pose, including placing directed how in order to demonstrate she breasts and her area genital for the Each pho- should her hands photographs. place a different tographs depicts pose. where he to Mather’s studio
Mather and T.P. then returned her dress. When wearing T.P. prom took senior photographs Mather told he the senior taking photographs, had completed 2 to 3 weeks. T.P. returned T.P. would they ready were ready picked up studio when the photographs Mather’s the nude pho- Mather showed T.P. the senior photographs. however, nude she could not have the pho- he told her tographs; until she turned 18. she had turned to the studio in June after T.P. returned but Mather the nude get photographs, and attempted *3 Officers he time to locate the photographs. claimed would need a in Cass office obtained County subsequently sheriff’s found, and studio where they search warrant for Mather’s house alia, of that are the subject charges inter the 18 photographs in this case. 2000, 25, in the State filed an 18-count information
On July that Mather did district court charging direct, create, make, inor any knowingly publish, provide, of sexually explicit other manner generate depiction a as one of its conduct which has child participants por- force, autho- observers or did trayed knowingly employ, rize, induce, in a child to or otherwise cause a conduct which has sexually observers. portrayed child as one of its participants 28-1463.03(1) tracked in the information 1 the 18 (3). Each count specified photographs. 5, 2001, found 3 through jury a trial held April
Following 5, the district court sen- counts. On June of all 18 Mather guilty years 3 to Mather to imprisonment tenced 18 counts and ordered that the sentences be served concurrently. Mather his appeals convictions and sentences.
ASSIGNMENTS OF ERROR Mather asserts the district (1) court erred in determining the State him with properly charged counts rather than 1 count when the facts alleged involved one continuous act resulting multiple photographs featuring same subject taken at location, the same (2) time and admitting pho- into evidence without foundation as proper to the chain and the location custody taken, where the were excessive imposing sentences.
STANDARDS OF REVIEW law, of a statute Interpretation presents question connection with which an court appellate has an obligation reach an independent conclusion of the decision irrespective made Rhea, the court by below. State v. 262 Neb.
N.W.2d 364 (2001).
In all
where the
proceedings
Nebraska Evidence Rules
of evidence
apply, admissibility
is controlled
the Nebraska
Rules,
discretion,
Evidence
not
judicial
those
except
instances under the
when
rules
discretion
judicial
is a factor
involved in
Where the
determining admissibility.
Nebraska
Evidence Rules commit the
at issue to the
evidentiary question
court,
discretion of the trial
admissibility
evidence is
Roeder,
reviewed for an abuse of discretion. State v.
262 Neb.
(2001).
N.W.2d 542
ANALYSIS Counts. Multiple
Mather was (3). under Subsection *4 (1) “It shall be unlawful provides, for a to person knowingly make, direct, create, publish, or in manner provide, any generate any of conduct which has a depiction sexually explicit child as one of its or observers.” Subsection participants portrayed
(3) to person knowingly “It shall be unlawful for provides, induce, force, authorize, cause a to or otherwise employ, of conduct which sexually explicit in depiction its observers.” For has child as one of or portrayed participants Act, a “visual Child Prevention Pornography the purposes as rep- is a “live performance photographic defined depiction” 28-1463.02(6) 1995). (Reissue Rev. Stat. resentation.” Neb. of, if that conduct Mather the generally complained asserts evidence, to one count. He established amounted specif- by of was a continuing that the conduct argues ically complained determining and the district court erred that offense that him with 18 counts of visual State separate properly conduct which has a child as one sexually explicit 28-1463.03(1) (3). and Mather of its under participants one count only that the facts of this case argues support because, based its on charges State although were different all 18 taken photographs, same as of one ongoing same subject day part Mather argues being charged continuous act. also Double sentenced on 18 counts violated the Jeopardy Constitutions which pre- Clauses the U.S. and Nebraska for in a clude the same offense multiple imposed punishments See v. 261 Neb. State single proceeding. Spurgin, (2001). N.W.2d 644 of both the federal
The Double Clauses Jeopardy three protect against Constitution and Nebraska Constitution (1) a the same distinct abuses: second for offense prosecution (2) a second for the same offense prosecution after acquittal, conviction, for the same multiple after punishments Id.; Decker, offense. State 261 Neb. N.W.2d 903 (2001). brief Mather couches his argument his Although “counts,” we understand his claim be based terms of multiple for one offense. against multiple punishments the prohibition raised Mather with to whether or The issue the same he has offense punishments not received multiple is resolved reference the statutory is that whether a (3). It well settled par one or more distinct of conduct involves ticular course has on how a legislature a statute depends offenses under *5 187 See, allowable unit of Sanabria v. prosecution. defined the 54, 2170, States, Ed. 2d 43 437 U.S. 98 S. Ct. 57 L. United States, 81, 620, (1978); 75 99 Bell v. United 349 U.S. S. Ct. L. Thus, (1955). 2d whether Mather’s conduct in Ed. 905 creating different involved 1 offense or 18 18 separate on how offenses “ the statute defines the offense and the depends ” ‘unit of intended prosecution’ as Legislature reflected in the the statute. See State plain language of v. (2001) (in 262 Neb. 634 744 Taylor, N.W.2d reading statute, court must determine to and effect and give purpose intent of as ascertained from entire Legislature of sense). statute considered in its plain, ordinary, popular conduct, to With a respect prohibited commits an person 28-1463.03(1) offense under by making, publishing, directing, § or creating, providing, generating “any visual depiction” of described, matter which subject 28-1463.02(6) under depiction § be a may A “photographic representation.” commits an person offense under 28-1463.03(3) by employing, § authoriz- forcing, or ing, inducing, a child to causing the creation of engage such “visual depiction.”
Distilled, the (1) focus of subsection is on generating “any visual and the depiction,” (3) focus subsection is on causing a child to in the engage creation visual The “any depiction.” plain language statute focuses visual “any depiction.” Under 28-1463.02(6) a § is “photographic such a representation” The depiction. form singular of “photographic representation” covered under the statute read in with the term conjunction “any” indicates that the intended Legislature for each dif prosecution fering photographic representation. statute is not ambiguous to the of a a prosecution as photograph “photo Under graphic representation.” 28-1463.03(1) (3), either or an offense is committed as to each differing visual depiction of the described type in the statute. A person who generates differing multiple prohibited depictions causes child to in the creation of such visual commits multi depictions offenses of ple (3), even though each such differing visual involves the same subject captured narrow timeframe. of 28-1463.03(1) Our reading is in accord with other with similar jurisdictions statutory language. 1987) (under fed Esch, (10th Cir.
See, 832 F.2d U.S. v. of producing for purpose use of minor prohibiting statute eral ” “ conduct, correct of sexually explicit depiction’ ‘any photograph held per photograph; unit prosecution State, child); v. use of Burk and distinct separate represented was to make 1998) intent (Fla. (legislative 2d 1003 App. So. crime; direc each individual photograph production sufficient support of each taking photograph tion of poses State, Vineyard for each photograph); violations 1998) (use tense (Tex. singular App. Crim. S.W.2d *6 for was unit possession per meant of prosecution in statute 547, Morrison, (Utah 556 31 State v. P.3d ‘“film image’”); ” “ ‘visual of child (each individual 2001) representation’ offense); for basis constitutes pornography possessed 81, 437, Multaler, 54, 2d 450 252 Wis. N.W.2d State v. “ ... to of (2002) (where possession ‘any photo statute referred ” was of 28 on each found images unit of prosecution graph,’ Root, 701, Wash. disks). State v. 2d two computer Compare 214, (2000) (where of statute Washington focus 9 P.3d in sexually on minor to conduct causing engage explicit was unit of for sex prosecution rather than on resultant depictions, minor “per per ual of minor session” photo exploitation session). in involved
We are mindful that the dissent concludes that the use of the
28-1463.03 makes the statute
In
ambiguous.
word
in
“any”
relies,
conclusion,
in
this
the dissent
two cases
reaching
part,
statutes,
federal
United States v.
We believe the federal child statute at issue in pornography Esch, at U.S. v. 832 F.2d which the use of a “proscribes minor to conduct ‘any sexually purpose such producing conduct.’ (emphasis added),” is a more to the statute and compelling comparison facts issue in this TTie at case. Court of for the 10th Circuit Appeals concluded words “any contained in the depiction” statute, federal child 2251(a) see 18 pornography (2000), U.S.C. that each required as a photograph and dis- tinct violation. The federal child pornography statute is similar to that 28-1463.03.
In a similar analysis, the Wisconsin Court in Supreme State v. Multaler, 252 Wis. 2d (2002), N.W.2d 437 concluded that “any” statute, in the Wisconsin child Wis. Stat. pornography (West Ann. 948.12 1996), required separate charge per pho- tograph. Multaler court reasoned that the term indi- “any” cated that the legislature intended prosecution for each photo- Multaler, graph. the Wisconsin Supreme Court rejected defendant’s assertion that the unit prosecution that case was each of two computer disks and stated that notwithstanding *7 the fact that the 28 to which the images defendant entered pleas to 28 counts of child possession were found on pornography disks, two a computer separate charge per image neverthe- essence, less indicated. The Multaler court “In stated: because it that images the the appears disks were of actual children, the disks served as electronic albums it photo [and is] bring appropriate separate charges separate photographs ain traditional album.” 252 Wis. 2d at photo 643 N.W.2d at Multaler, 451. In the court found that time every the defendant downloaded himself a new he recommitted image, to additional case, criminal conduct. the present every time Mather directed and caused T.P. to assume a new and took a dif- pose he fering recommitted himself to additional crimi- photograph, nal conduct. decision in Court’s Washington Supreme of the
We are aware Root, (2000), cited favor- 2d 9 P.3d 141 Wash. State note, however, the at issue in that statute We the dissent. ably by The statute involved provisions. from the Nebraska Root differs as follows: in Root stated of a of sexual minor
“(1) exploitation A is guilty person if the person: or in minor threat force to
“(a) engage a conduct, Compels that conduct such will knowing sexually explicit aof live performance; be or part photographed Aids, invites, authorizes, or causes a “(b) employs, conduct, that sexually knowing in engage explicit minor or of a will be live photographed part such conduct or performance; a
“(c) legal guardian, Being person having parent, minor, the a minor to or control of permits custody conduct, that the conduct knowing will explicit sexually of a be live performance.” part photographed 706-07, P.3d 216-17. The Washington 2d at at Wash. Washington concluded that the statute essen- Court Supreme (1) a minor in consisted of two elements: tially posing sexually the conduct will be knowing pho- conduct statute, of the the language Based tographed. particular Court concluded unit of Washington prosecu- Supreme statute was session.” at photo tion under Id. Washington “per 218. such conclusion is 9 P.3d at While supported statute, language Washington does Nebraska statute differs and not a support session” “per unit of prosecution. the dissent that under our
Finally, posits interpretation 28-1463.03, if a is the subject of a motion picture, frame of the film could charged as conceivably count. note that involves We case 18 works of present still is each which clearly encompassed photography, by “photo- 28-1463.02(6), see and that the graphic representation,” issue is before of motion not us. In this we picture regard, note that Nebraska, states unlike address the motion issue picture Wisconsin, For language. example, statutory pro- 948.12 film, vides: “Whoever possesses undeveloped photographic *8 or motion videotape picto- picture, negative, photograph, in sex- audio of a recording engaged rial or reproduction circumstances conduct under all of the following ually explicit it is not the subject of a Class E . . . Because felony is guilty we make no comment on the “motion pic- of this prosecution, ture” hypothetical. case,
In the Mather was making pho- present and a child to in 18 differing causing conduct, which each of was the sexually depictions of “visual type depiction” “photographic representation” described in and the statutes under discussion. prohibited by Under the and and the facts of case, offense, this photograph represented Mather was with 18 offenses. properly charged offense, Because each work photographic represented separate Mather was not for “the same subjected multiple punishments offense” and there was no violation of double jeopardy princi- We Mather’s first of error. reject assignment ples.
Admission Into Evidence. Photographs Mather next erred in district court argues admitting exhibits 18 and 31 into evidence. Exhibits 1 through through case, 18 are of the 18 at issue this prints photographs exhibit 31 is a found in the search of Mather’s home and packet studio of the 18 at containing prints negatives photographs trial, issue in well this case as as other At Mather photographs. to the foundation for each of these exhibits. generally objected On Mather asserts that his foun- appeal, objections regarding dation related to “the chain of as well as the issue of custody venue.” Brief for at 12. With to the chain of respect appellant Mather that “there was a custody, argues appeal complete lack of evidence the chain of for said regarding custody pho- as well as the Officer’s failure to whether tographs, decipher exhibits 1 18 were through original Id. photographs copies.” With to his the venue of the crimes argument regarding Mather charged, that T.P.’s did not argues appeal testimony establish the exact location where the shot outside Water were taken. Weeping exhibits 1 31 was as testimony regarding through testified
follows: Randall Olsen that as an for the investigator *9 the search of Mather’s he conducted sheriff’s office Cass County search, the another officer found the and residence studio. During 31, exhibit and which would become of prints negatives, packet Olsen, them and them to gave who looked at and them to gave testified that the evidence officer the evidence officer. Olsen room and checked it into the evidence at the the exhibit tagged sheriff’s office. and that he later checked the out negatives prints
Olsen testified a film evidence and them to to processing shop the room took the Olsen have additional made for handed county attorney. prints the at the and the to film had negatives operator processing shop view, her the While in the sign evidence Olsen’s log. operator the into a machine which placed negatives processing produced additional returned the to Olsen prints. operator negatives and him the additional Olsen the gave negatives returned to the prints. and returned the and packet containing packet prints negatives to the evidence room. Olsen the additional gave prints which became 1 to exhibits 18 the through county office. attorney’s 1
Exhibits 18 and 31 were through offered into evidence dur- T.P.’s ing testimony. T.P. was shown exhibits 1 18 and through testified that each her and that each photograph depicted print fairly accurately her represented that poses photographs were taken Mather in by September October 1999. T.P. was also shown exhibit 31 and identified it as containing pho- to exhibits 1 corresponding through 18 as well as other photographs by taken Mather on the same day. T.P.described the
area where the were taken as photographs being Weeping Water another location about 5 tomiles west Weeping Water and inside Cass County. 18, to 1
As exhibits it was not through asserted by the State studio, that such but, rather, were found in photographs Mather’s import Olsen’s was testimony that such exhibits were the additional made film at the prints from processing shop neg- atives found at Mather’s studio. T.P. testified 18, exhibits 1 photographs, through fairly accurately repre- sented poses directed Mather and of her taken Mather. Such testimony sufficient the introduction of evidence, exhibits 1 through into which exhibits contained of the conduct proof Mather. charged against chain of custody regarding packet With to the stated that that an exhibit exhibit we have proof identified as is sufficient of law enforcement officials remained in the custody and is sufficient foundation per a chain of possession to prove Carter, Neb. into evidence. See State v. mit its introduction Whether there is sufficient founda (1998). N.W.2d 818 evidence must neces tion evidence for the admission physical basis. Id. A trial court’s be determined on sarily case-by-case evidence will not determination of admissibility physical for an abuse of discretion. State be overturned ordinarily except Green, (1991). 238 Neb. 471 N.W.2d There was Olsen that exhibit 31 remained testimony by officials, of law enforcement which was sufficient the custody a chain of a suffi- evidence prove possession provided cient foundation to its introduction into evidence. The permit *10 district court in this case did not abuse its discretion in admit- exhibit 31. ting
On Mather mentions “the issue of venue.” Brief for appeal, 12. at Mather’s to be that appellant appellate argument appears the State failed to that the conduct took charged prove place Cass where the case was tried. this we note County regard, to be tried in the where the offense is com- right county (Reissue mitted is a Neb. Rev. Stat. right. 29-1301 statutory § 1995). Mather did not at trial to a trial in a object county than where the offense was committed. He therefore acquiesced in Cass and waived his holding County proceedings rights Meers, under 29-1301. See State v. 257 Neb. 598 N.W.2d § (1999). We Mather’s second of error. reject assignment Excessive Sentences.
Mather that the district court excessive finally argues imposed sentences. He that he “was self as a argues employed photogra- son, for had suffered the loss of his had pher many years, recently no criminal and had a volume of character ref- history prior large erence letters submitted in of a sentence support probationary than members of the Water Weeping incarceration] [rather Brief at 14. community.” appellant limits will be
Sentences within disturbed an statutory appel- of were an late court if the sentences abuse complained only Heitman, discretion. State v. 262 Neb. 629 N.W.2d judicial (2001). Mather was convicted of 18 counts of violating 28-1463.03. The 18 counts were each as first offenses which, (Reissue 1995), to Neb. Rev. Stat. 28-1463.04 pursuant are Class HI felonies. The for a III sentencing range Class felony is a minimum 1 and a maximum year’s imprisonment 20 years’ $25,000 fine, or both. Neb. Rev. Stat. 28-105 imprisonment, (Cum. 2000). Mather was sentenced to 3 to 5 Supp. years’ impris- onment on each count to be served concurrently.
Mather was convicted of a serious crime. The statute under which Mather was convicted is aimed at combating The U.S. Court pornography. has observed: “The Supreme leg- islative as well as the found in judgment, judgment the relevant literature, children is that the use of as subjects pornographic emotional, materials is harmful to the physiological, mental health of the child. . . . materials are produced a perma- [T]he nent record of the children’s New York ...” participation Ferber, 747, 758-59, 458 U.S. 102 S. Ct. 73 L. Ed. 2d (1982).
The record and show presentence that at the report time of Mather sentencing, was 53 old years and that at the time the taken, of T.R were she was 17 old. When years T.P. her senior picked up photographs, Mather T.P. to encouraged a session of nude repeat but she photography, refused. The pre- sentence includes the report observation that the victim contin- ues endure the effects of the negative event rise to giving this prosecution. Mather’s sentences were within statutory limits, and we find no abuse of discretion in the district court’s sen- We tencing. therefore reject Mather’s third assignment of error.
CONCLUSION *11 T.P., 17, was aged depicted in 18 sexually differing pho- taken and generated by Mather. Mather was charged, tried, and convicted of 18 by jury counts of depiction conduct which sexually explicit has a child as one of its partici- in violation pants of 28-1463.03. Mather § was sentenced to concurrent sentences of 3 to 5 years’ imprisonment.
In view of the 18 differing and the lan- statutory we conclude guage, unit of proper prosecution under was each and that the dis- photograph trict court therefore did not err in that the State determining Mather with 18 counts rather than 1 properly charged count as Mather. We further conclude that the district urged by court did not err in exhibits 1 18 and 31 into admitting through evidence and did not abuse its discretion Mather. sentencing We therefore affirm Mather’s convictions and sentences.
Affirmed. J., dissenting. Wright,
The State filed an information
Mather with 18 counts
charging
a visual
con-
knowingly making
sexually explicit
duct based on 18
Mather was convicted on
separate photographs.
all
18 counts
was sentenced to a term of 3 to 5 years’ impris-
count,
onment on each
with the sentences to run
I
concurrently.
with the
respectfully disagree
majority’s statutory interpretation
criminal
committed.
of how
acts were
many
(Reissue 1995)
Neb.
in rele-
Rev. Stat. 28-1463.03
provides
“(1)
vant
It shall be unlawful for a
part:
person
knowingly
make ... create ... or in
manner
generate any
depic-
tion of
which
a child as one of its
conduct
has
sexually explicit
The
“visual
observers.”
term
participants
portrayed
depiction”
shall mean “live
performance
photographic representation.”
28-1463.02(6) (Reissue 1995).
See Neb. Rev. Stat. §
The
convictions can
of how
question
many
lawfully
in the case at bar
obtained under circumstances such as those
is a
unit of
and that is a
question
appropriate
prosecution,
ques
States,
intent. See Castaldi v. United
tion of
783 F.2d
legislative
cert. denied 476 U.S.
(8th
1986),
106 S. Ct.
Cir.
law, when
196
U.S.C.
court
firearm” in 18
“any
app.
concluded
phrase
contrast,
In
the
noted that
court
1202(a) was ambiguous.
5861(d)
drawn in terms of ‘“a
because I.R.C.
is
”
firearm,’
from no
See
ambiguity.
the
suffers
arguably
provision
In v. 922 F.2d U.S. obstruction, 1510(a) (1982), the that 18 U.S.C. which prevents the of information communication delay, prevention of the United States to a violation of criminal statute relating a ambiguous criminal by any investigator, person The found that to the allowable unit of court prosecution. made use of the word in the the phrase “any person” “any” in that and other cir- It stated in cases phrase ambiguous. cuits, found con- the word has been “any” ambiguous typically it contem- nection with the allowable unit of prosecution, the on relying the rather than singular, plates plural specifying United States v. supra. Kinsley, use of the have also noted the difference between the
Courts See, terms U.S. v. “a” and in cases “any” involving pornography. Parrella, (5th 1995); F.3d Cir. State v. 736 69 723 Kimbrough, Distributors, 1999); 2d (Fla. So. 94 American Film Inc. v. App. State, (Ind. 1984). N.E.2d 3 These cases conclude that 471 App. “a,” the of the when the statute uses instead of intent “any” leg- clear, islature not and the cases must be resolved turn- against is a into offenses. ing transaction single multiple State, For relies in Burk v. majority part example, Burk, (Fla. 1998). 2d In criminalized So. statute App. There, of “a” of a child. sexual production performance it was with 25 court held that defendant charge permissible But Florida counts for 25 different cases photographs. when the used the term have held the statute opposite “any” instead the term “a.” Parrella, Florida
In
the fourth district of the
Court Appeals,
Burk, held that
showing
district that decided
the same
could not be
movies
containing
multiple
pornography
criminalized the
counts when the statute
as
The court
stated
motion
“any”
picture.
specifically
possession
“a,”
is used instead
term
leg-
that when the term “any”
See, also,
unit of
single
prosecution.
islature intended only
State,
Wallace v.
(Fla. 1998)
2d
differ-
(discussing
724 So.
officer).
ence between terms
case involving resisting police
Multaler,
252 Wis. 2d
State
relies
majority
(2002), as an
in which
counts were
N.W.2d 437
example
multiple
under a statute that utilizes the term
“any.”
permissible
Multaler,
Multaler
there were more than 28
files.
image
deter-
over a
of time. The court
began downloading images
period
*13
files,
mined that since there were more than 28
every
separate
file,
new
he recommitted himself to
time Multaler downloaded a
additional criminal conduct. The statute in
provided:
question
“
video-
‘Whoever
...
motion
any
picture,
possesses
photograph,
”
81,
In the case at § Mather took 18 photographs tion of conduct.” sexually explicit T.P., determined that each photograph and the has majority was offense and that Mather properly constituted a separate with 18 counts. charged because of ambiguous
In 28-1463.03 is my opinion, § case, In this one could logically phrase “any depiction.” because two conclude that two events occurred pho separate were near a lake and were taken when Mather and T.P. west of Water and Mather then drove to an area 5 miles Weeping of T.P. at a different location. took 16 more photographs line of two counts would be this Following reasoning, Root, 701, 710, 9 See State 141 Wash. 2d P.3d appropriate. banc, en held that cor Court (Supreme Washington, involved). rect unit of session” prosecution “per photo is that Another 28-1463.03 problem equally culpable be For conduct 10-minute may charged differently. example, live which a child depicts sexually performance explicit one If conduct as count. the child is may charged pho- camera, a standard 35-mm motion using picture tographed frames, 14,400 which would equivalent produce still Unlike crim- as a count. could be charged each frame the terms which describe inal statutes in jurisdictions, negative,” “photographic “motion picture,” “photograph,” as “visual depiction” defines “videotape,” § representation.” “live photographic performance act if in the same bemay criminal conduct Separate does but if the Legislature so provides, the Legislature expressly unit of it fails to set the prosecu- or when not expressly provide, is to be intent doubt as to the Legislature’s tion with clarity, any 28-1463.03 I find of the accused. nothing resolved in favor intended to impose multiple that the Legislature which suggests dur- taken on the number of photographs punishments depending in sexually which a minor engages session in ing photography conduct. manner gener- “in any the statutory provision my opinion, conduct” is ambigu- of sexually explicit ate ous, in favor of a crimi- should be construed and the ambiguity committed a While Mather See 28-1463.03. nal defendant. act, should be imposed, which a serious punishment serious him to charge I it would have been more appropriate believe with 2 rather than 18. counts JJ., in this dissent. join
Connolly McCormack, *14 Nebraska, appellee, State appellant. Faber, Robert