STATE OF NEW MEXICO, Plaintiff-Respondent, v. JAMES MICHAEL OLSSON, Defendant-Petitioner. Consolidated with: STATE OF NEW MEXICO, Plaintiff-Petitioner and Cross-Respondent, v. WILLARD BALLARD, Defendant-Respondent and Cross-Petitioner.
Docket No. 33,226
Docket No. 33,565
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
April 21, 2014
2014-NMSC-012
Teddy L. Hartley and Stephen K. Quinn, District Judges
ORIGINAL PROCEEDINGS ON CERTIORARI
Nina Lalevic, Assistant Public Defender
Santa Fe, NM
for Petitioner James Michael Olsson
Martha Anne Kelly, Assistant Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM
for Respondent and Petitioner State of New Mexico
Jorge A. Alvarado, Chief Public Defender
Kimberly M. Chavez Cook, Assistant Appellate Defender
Santa Fe, NM
for Respondent Willard Ballard
OPINION
MAES, Justice.
{1} In this opinion, we decide the correct unit of prosecution for possession of child pornography under
{2} We hold that the Legislature has not clearly defined the unit of prosecution for possession of child pornography because the language is ambiguous and the history and purpose do not offer any further clarity. We also hold that the Herron indicia of distinctness test is not applicable in cases of possession. Herron v. State, 1991-NMSC-012, 111 N.M. 357, 805 P.2d 624. Therefore, we resort to the rule of lenity and hold that Olsson and Ballard can each only be charged with one count of possession of child pornography.
I. FACTS AND PROCEDURAL HISTORY
A. State v. Olsson
{3} Olsson was charged with sixty counts of possession of child pornography based on photographs of minors found in three binders seized from Olsson and images found on his computer. Olsson filed a motion for merger of counts asking the trial court to determine the proper unit of prosecution for those charged with possession under
{4} The trial court certified the question on unit of prosecution to the Court of Appeals on interlocutory appeal. State v. Olsson, 2008-NMCA-009, 143 N.M. 351, 176 P.3d 340 (Olsson I). The Court of Appeals ruled that
{5} On remand Olsson pleaded guilty to six counts of possession of child pornography for a sentence of eight years and reserved the right to appeal the unit of prosecution issue. On appeal, Olsson claimed that because the six counts were based on three counts for the three different binders containing child pornography and three counts for three digital images found on Olsson‘s laptop, that the six counts of possession violated his constitutional protections against double jeopardy.
{6} The Court of Appeals reaffirmed its holding from the 2008 review on interlocutory appeal that
{7} Olsson appealed to this Court pursuant to
B. State v. Ballard
{8} Ballard gave his computer and two external hard drives to his coworker, Daniel Etlicher, and asked him to perform software updates. Approximately two weeks later, Ballard admitted to Etlicher that he had downloaded a pornography file that came with child pornography and asked Etlicher to erase the memory on the two external hard drives. Etlicher turned the computer over to the police. Police testified at trial that Ballard told them
{9} At trial a computer forensics analyst testified that twenty-five files had been “created” or “downloaded” on five separate occasions. There were eight files consisting of video clips and seventeen files consisting of still images. The eight video clips were downloaded on April 7, April 17, May 11, May 21, and May 25, 2007. All of the still images were downloaded on April 7, 2007. All of the images and videos clips were contained on a single external hard drive. The jury convicted Ballard on all twenty-five counts. At sentencing and after arguments on the merger issue, the trial court determined that all of the images were distinct, concluded that there were no charges for “obvious duplications of participants” in the images, and declined to merge the twenty-five counts. Ballard was sentenced to thirty-seven-and-a-half years in prison, with all but nine years suspended. Ballard appealed, claiming that based on double jeopardy grounds, the twenty-five counts merge into one count consisting of a unitary course of conduct. Ballard, 2012-NMCA-043, ¶ 2.
{10} The Court of Appeals found that each distinct download constituted a separate offense, but that multiple images within a download were not separate offenses. Id. ¶¶ 28-30. The Court concluded that the facts of this case fit within
{11} The State appealed and raised one question for review: “Did the Court of Appeals err in reducing the twenty-five counts of sexual exploitation of children, which were based on twenty-five separate images, to five counts, based primarily upon the fact that Defendant downloaded the images on five separate calendar days?” We granted certiorari.
{12} Ballard filed a cross-petition and raised an intent argument, specifically that the evidence was insufficient at trial to establish that he had knowledge of the child pornography on his computer. Ballard did not raise that issue on appeal, nor is sufficiency of the evidence before this Court. Further, the State points out that the jury was fully instructed on the
{13} Because both cases question the proper unit of prosecution under
II. STANDARD OF REVIEW
{14} The issue of intended unit of prosecution is a question of law subject to de novo review. See State v. Rowell, 1995-NMSC-079, ¶ 8, 121 N.M. 111, 908 P.2d 1379 (“The main goal of statutory construction is to give effect to the intent of the legislature. . . . Interpretation of a statute is an issue of law, not a question of fact. . . . We review questions of law de novo.” (citations omitted)).
III. DISCUSSION
A. The plain meaning of the statutory language is ambiguous
{15} The State argues that the plain meaning of the statute indicates a legislative intent to create multiple units of prosecution. Specifically, the Legislature‘s use of the word “any” in conjunction with singular words, such as “obscene visual or print medium” and “prohibited sexual act,” creates a presumption of multiple units of prosecution.
{16} Olsson argues that the use of “visual or print medium” in
{17} Ballard argues that the definition of “visual or print medium” in
{18} “The relevant inquiry in [a unit of prosecution case] is whether the legislature intended punishment for the entire course of conduct or for each discrete act.” Swafford v. State, 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 1223. The plain language of the statute is the primary indicator of legislative intent. See Whitely v. N.M. State Pers. Bd., 1993-NMSC-019, ¶ 5, 115 N.M. 308, 850 P.2d 1011. This analysis requires courts to determine the unit of prosecution intended by the Legislature by employing a two-part test. State v. Gallegos, 2011-NMSC-027, ¶ 31, 149 N.M. 704, 254 P.3d 655. First, courts must analyze the statute to determine whether the Legislature has defined the unit of prosecution and, if the statute spells out the unit of prosecution, then the court follows that language and the inquiry is complete. State v. Swick, 2012-NMSC-018, ¶ 33, 279 P.3d 747. If the unit of prosecution is not clear from the statutory language, courts must “determine whether a defendant‘s acts are separated by sufficient ‘indicia of distinctness’ to justify multiple punishments.” Gallegos, 2011-NMSC-027, ¶ 31 (internal quotation marks and citations omitted). Even when analyzing the indicia of distinctness courts are guided by the “language, history, purpose, as well as the quantum of punishment that is prescribed.” Id. ¶ 33. If there is no distinctness to the acts charged, then the rule of lenity applies, meaning “doubt will be resolved against turning a single transaction into multiple offenses.” Herron, 1991-NMSC-012, ¶ 14 (internal quotation marks and citation omitted).
{19}
It is unlawful for a person to intentionally possess any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts any prohibited sexual act or simulation of such act and if that person knows or has reason to know that one or more of the participants in that act is a child under eighteen years of age. A person who violates the provisions of this subsection is guilty of a fourth degree felony.
The definition of “visual or print medium” includes:
(1) any film, photograph, negative, slide, computer diskette, videotape, videodisc or any computer or electronically generated imagery; or
(2) any book, magazine or other form of publication or photographic reproduction containing or incorporating any film, photograph, negative, slide, computer diskette, videotape, videodisc or any computer or electronically generated imagery.
{21} Moreover, the use of the word “any” in the statute only compounds the ambiguity. The State cites cases that interpret statutes of other states as allowing multiple units of prosecution when using “any” with singular nouns. See, e.g., United States v. Snyder, 189 F.3d 640, 647 (7th Cir. 1999); Fink v. State, 817 A.2d 781, 787-88 (Del. 2003); Williams v. Commonwealth, 178 S.W.3d 491, 494-95 (Ky. 2005); Commonwealth v. Dingle, 898 N.E.2d 1, 9 n.10 (Mass. App. Ct. 2008). However, Olsson and Ballard adequately distinguish those statutes by legislative intent or context, or cite states whose statutes indicate a single unit of prosecution using the same language. See, e.g., Mason v. Commonwealth, 636 S.E.2d 480, 483-84 (Va. Ct. App. 2006); State v. Valdez, 894 P.2d 708, 711-14 (Ariz. Ct. App. 1994); Braunstein v. Frawley, 407 N.Y.S.2d 250, 253-54 (N.Y. App. Div. 1978). We are not convinced by either argument. We do not undertake an analysis of the cases cited by the parties because the multiple interpretations argued by the parties only highlight the lack of clarity in
{22} This case is unlike State v. Leeson where the Court of Appeals determined that the unit of prosecution was “readily discernible” for violations of
{23} Because the plain meaning as to the proper unit of prosecution is not apparent, the statutory language is ambiguous. It should be noted that this Court is fatigued with the plain
B. The history and purpose of Section 30-6A-3 do not define a clear unit of prosecution
{24} The State contends that the purpose and key element of the statute is to protect children from being used as sexual objects, which would indicate a unit of prosecution equal to each distinct prohibited sexual act. The State argues that possession of child pornography is part of the prohibited behavior that the Legislature intended to protect against as evidenced in the title of
{25} Ballard agrees that the general purpose of the statute is to protect children from being sexually exploited but argues that the statute also addresses more than one social evil. Ballard asserts that the statute is aimed primarily at victimization, which occurs when the sexually exploitative material is created, whereas possession is a later consequence. The Legislature recognized this by designating manufacturing as the highest crime and possession as the lowest, with distribution in the middle. Compare
{26} Olsson argues that the Legislature intended a single unit of prosecution when it named
{27} This Court has held that the purpose of the Act is to protect children from the harm “that flows from trespasses against the child‘s dignity when treated as a sexual object.” Myers, 2009-NMSC-016, ¶ 17 (internal quotation marks and citation omitted). We do not agree with Olsson and Ballard that possession should be treated as a victimless crime. Possession causes equal or greater harm than the original manufacture because it further disseminates the original trespass.
{28} In 1984, the New Mexico Legislature made the sexual exploitation of children a separate crime from the general child abuse provisions and included purpose in its definition of one of the five prohibited sexual acts: the “lewd exhibition of the genitals or pubic area . . . for the purpose of sexual stimulation.” 1984 N.M. Laws, ch. 92, § 2(A)(5). See generally State v. Rendleman, 2003-NMCA-150, ¶¶ 41-42, 134 N.M. 744, 82 P.3d 554 (tracing the history of
{29} The 2001 amendment supports the notion that the Legislature viewed possession alone, whether prohibited depictions were sold or not, as prohibited conduct. Nonetheless, the fact that prohibition of possession appears to be one of the main goals of the statute does not reveal the Legislature‘s intended unit of prosecution. Instead, this history draws attention to the fact that a unitary conduct analysis for possession is not likely what the Legislature intended because a defendant would have no incentive to stop downloading child pornography after the first image.
{30} We encounter another problem in determining the Legislature‘s intent when considering the sentencing disparities. A single count of possession under
{31} We conclude that the language, history, and purpose of
C. The Herron test of distinctness does not apply in possession cases
{32} In determining distinctness, the Court may apply the six Herron factors: (1) time between criminal acts, (2) location of the victim during each act, (3) existence of any intervening events, (4) distinctions in the manner of committing the acts, (5) the defendant‘s intent, and (6) the
{33} Olsson contends that because legislative intent concerning the unit of prosecution is unclear, this Court must engage in a Herron factor analysis to determine whether the offenses are sufficiently distinct. Olsson did not provide relevant evidence about his possession to the Court of Appeals because such evidence was unavailable pretrial at the time of Olsson‘s interlocutory appeal; therefore the Court of Appeals was unable to apply the Herron factors. Olsson I, 2008-NMCA-009, ¶ 10. We conclude that the record posttrial is also devoid of facts that would allow us to consider the distinctness of Olsson‘s acts.
{34} However, Ballard‘s case has a more sufficient factual background to engage in a Herron distinctness analysis, but the parties did not directly address Herron. Instead, the parties engaged in a general discussion on distinctness and the rule of lenity.
{35} The State argues that the Court of Appeals erred in reducing the twenty-five charges to five because reliance on the download dates is not rooted in the language or purpose of the statute. The State asserts that it proved that Ballard possessed twenty-five separate and distinct computer images of child pornography at twenty-five separate and distinct times. Thus Ballard should be charged with twenty-five counts.
{36} Ballard cites State v. Quick, 2009-NMSC-015, ¶ 20, 146 N.M. 80, 206 P.3d 985, for the proposition that the actus reus for possession offenses is defined by the moment the evidence is seized from a defendant‘s possession. Ballard argues that his possession was a single actus reus because his conduct has been consistently alleged as occurring on one specific date. Finally, Ballard asserts that the Court of Appeals’ recognition of the possession of a “bundling of images” is properly rooted in the statutory inclusion of media inherently containing multiple images.
{37} This case is distinguishable from Quick, which concluded “that the separate crimes of possession and possession with intent to distribute were intended by the New Mexico Legislature to apply in the alternative when based on a single act of possession.” Id. ¶ 2. Quick, an appeal based on a claim that multiple punishments was a double jeopardy violation, provided that “[t]he problem of multiple punishments arises in either of two situations: when a defendant claims to have been convicted (1) of several different crimes or (2) of multiple counts of the same crime, despite legislative intent to impose fewer punishments under the circumstances.” Id. ¶ 8. Quick dealt with the former, also known as double description. Id. This case addresses the latter, commonly known as a unit of prosecution case. In a double description case the primary inquiry is “whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses.” Id. (internal quotation marks and citation omitted). The relevant inquiry in a unit of prosecution case “is whether the legislature intended punishment for the entire course of conduct or for each discrete act.” Swafford, 1991-NMSC-043, ¶ 8.
{38} Additionally, Quick dealt with possession of controlled substances. 2009-NMSC-015, ¶ 1.
{39} This reveals a problem with attempts to determine whether conduct in a child pornography possession case is distinct under Herron: The Herron factors are specifically tailored to a case where a defendant has direct contact with a victim. See Herron, 1991-NMSC-012, ¶ 1 (criminal sexual penetration); State v. Garcia, 2009-NMCA-107, ¶ 6, 147 N.M. 150, 217 P.3d 1048 (battery); State v. Boergadine, 2005-NMCA-028, ¶ 1, 137 N.M. 92, 107 P.3d 532 (fraud). Possession cases do not so neatly fit the Herron mold because it is unclear when each of the factors would apply and the factors are inconclusive when they do apply. For instance, time between criminal acts, location of the victim during the acts, existence of any intervening events, and the defendant‘s intent could apply specifically to when a defendant downloaded an image or each time he viewed them. It is difficult to ascertain a defendant‘s intent at the time of downloading or at the time of viewing the images. The location of the victim during a download or viewing is not relevant. The number of victims could possibly be established, but the circumstance of multiple victims can exist from possession of a single videotape or a single computer diskette as described in
{40} Further, Justice Ransom, who authored Herron, stated the following in State v. Brooks:
We believe our more recent analysis and discussion in Herron v. State, 111 N.M. 357, 805 P.2d 624 (1991), is applicable to rape, sodomy, and sexual assault or penetration cases. In sex crime cases, the jury looks at several factors to determine if each contact or penetration is part of the same act or is a separate act, Herron, 111 N.M. at 361, 805 P.2d at 628, while in larceny and embezzlement cases, the jury looks to see if the defendant‘s intent was to achieve a single fraudulent scheme or plan through the commission of several acts, see Allen, 59 N.M. at 141, 280 P.2d at 299; Pedroncelli, 100 N.M. at 680, 675 P.2d at 129.
1994-NMSC-062, ¶ 10 n.1, 117 N.M. 751, 877 P.2d 557. Justice Ransom‘s affirmation that the Herron factors were originally designed for cases where there is direct contact between the defendant and the victim further convinces us that the Herron factors do not apply in possession cases.
{41} In Ballard, the Court of Appeals seems to rely on the timing factor to conclude that the five specific download dates for each bundle of child pornography resulted in five counts instead of the original twenty-five. 2012-NMCA-043, ¶ 29. The Court of Appeals struggled to apply the Herron factors, however, asking “[w]hen, if at all, do factors such as timing, location, sequencing, and intervening events, come into play?” Id. ¶ 26.
{42} While it would seem logical in the context of Herron for the Court of Appeals to determine counts based on download dates, the State is also correct in its assertion that download dates are not included in the statutory language nor alluded to in the purpose and history. This problem, along with the impracticability of how to apply the Herron factors to Olsson and Ballard‘s cases, further illustrates the difficulty in applying the Herron factors to possession cases. Therefore, we hold that the Herron factors are not applicable in possession cases and that the indicia of distinctness factors do not determine the unit of prosecution.
D. The rule of lenity applies
{43} If there is no distinctness to the acts charged, then the rule of lenity applies, meaning “doubt will be resolved against turning a single transaction into multiple offenses.” Herron, 1991-NMSC-012, ¶ 14. This Court has also held that:
[T]he rule of lenity, which counsels that criminal statutes should be interpreted in the defendant‘s favor when insurmountable ambiguity persists regarding the intended scope of a criminal statute, may not be applied to defeat the apparent intent of the Legislature, as manifested by the language and structure, legislative history, and motivating policies of [a] statute.
State v. Morales, 2010-NMSC-026, ¶ 13, 148 N.M. 305, 236 P.3d 24 (second alteration in original) (internal quotation marks and citation omitted).
{44} Olsson and Ballard both argue that the rule of lenity should apply and that only a single count of possession should be imposed. The State argues that in order for the rule of lenity to apply, there must be “grievous ambiguity” in the statutory language, which the State urges does not exist in this case.
{45} We hold that the rule of lenity applies. The statutory language is insurmountably ambiguous and we do not discern any distinctness in the acts charged. Since
{46} This Court in Swafford noted that “[t]he case law is replete with failed attempts at judicial definitions of the same factual event.” 1991-NMSC-043, ¶ 27. That is precisely the situation in this case, and because “an intent to punish separately [also cannot] be found through application of the canons of construction set forth above, lenity is indicated.” Id. ¶ 34. Therefore, we hold that the rule of lenity requires us to interpret
IV. CONCLUSION
{48} IT IS SO ORDERED.
PETRA JIMENEZ MAES, Justice
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice
EDWARD L. CHÁVEZ, Justice (dissenting).
CHÁVEZ, Justice (dissenting).
{49} Because I conclude that the unit of prosecution for possession of child pornography in the Sexual Exploitation of Children Act,
{50} It is not unusual for the Legislature to use general language when defining a crime. General language is to be expected because legislation is often written to balance competing policy interests. It may also be desirable for the Legislature to elect to use language that is general or imprecise to accommodate the uncertainty of future application of a statute, while using language specific enough to guide courts in a particular direction. Countless published and unpublished appellate opinions discuss the approach to interpreting general language in a statute with the court‘s ultimate goal being to determine the intent of the Legislature. Rules of statutory construction, provided both by the Legislature in the Uniform Statute and Rule Construction Act, see
{51} A court‘s analysis is no different when it is determining the unit of prosecution in a criminal statute. In this case, the question is “What would a reasonable legislator have intended the unit of prosecution to be for possession of child pornography under the Act, considering the language, history, and purposes of the legislation?” If reasonable doubt persists regarding the intended unit of prosecution, the rule of lenity requires courts to interpret the unit to be a single transaction and not multiple offenses. Herron v. State, 1991-NMSC-012, ¶ 14, 111 N.M. 357, 805 P.2d 624.
{52}
It is unlawful for a person to intentionally possess any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts any prohibited sexual act or simulation of such act and if that person knows or has reason to know that one or more of the participants in that act is a child under eighteen years of age.
{53} I conclude that the Legislature intended the unit of prosecution for possession of child pornography to be based on the number of different children depicted participating in distinct prohibited sexual acts as defined in
{54} The purpose of the Act is also instructive. I agree with the majority that possession of a medium depicting child pornography is not a victimless crime. See majority op. ¶¶ 24, 27. The very purpose of the Act is to protect against the sexual exploitation of children. As we recently stated in State v. Myers, 2009-NMSC-016, ¶ 17, 146 N.M. 128, 207 P.3d 1105, “Child pornography is particularly harmful because the child‘s actions are reduced to a recording which could haunt the child in future years, especially in light of the mass distribution system for child pornography.” (Internal quotation marks and citations omitted.) The Act recognizes that
{55} In my reading of the statute, if the defendant possesses a medium depicting the same child participating in the same prohibited sexual act, i.e., masturbation, the unit of prosecution permits only one count. If the defendant possesses a medium depicting the same child participating in two distinct prohibited sexual acts, i.e., sexual intercourse in some images and masturbation in the other images, the unit of prosecution permits two counts of possession. If the defendant possesses a medium of three children separately engaged in the same type of prohibited sexual act, the unit of prosecution permits three counts because there are three different victims depicted separately. The Legislature also intended that courts treat as a continuous transaction a medium depicting one or more children performing the same prohibited sexual act. Thus, if a defendant possesses a medium containing multiple images of a group of children engaged in the same prohibited sexual act, the unit of prosecution only permits one count. If the medium possessed by the defendant includes an image of a different group of children, the unit of prosecution permits an additional count. In my opinion, the district court in State v. Ballard correctly identified the unit of prosecution when the judge concluded that the twenty-five separately charged images each involved a different child victim and a distinct act. 2012-NMCA-043, ¶ 20.
{56} I find it difficult to conclude that the Legislature did not intend multiple punishments when a defendant possesses media depicting a different child or different children engaged in distinct prohibited sexual acts. Each child who is recorded by video or still photograph(s) while participating in a prohibited sexual act is exploited at the time of his or her participation, yet each child‘s victimization extends beyond the walls where they were abused when they are photographed or videotaped. The child cannot know who will look at the photographs or videotapes and for how long the photographs and videotapes will circulate. This was our concern in Myers, and the majority opinion echoes this concern in paragraph 27, which states that “‘pornography poses an even greater threat to the child victim than does sexual abuse or prostitution[; b]ecause the child‘s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place.‘” (quoting David P. Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981)).
{57} I recognize that modern technology, including computers, the internet, and digital cameras, contributes to a person‘s ability to manufacture, distribute, and possess large quantities of child pornography. However, I am not persuaded that simply because it is now easier and
{58} Interestingly, the unit of prosecution for manufacturing an obscene visual or print medium depicting child pornography is each image.
{59} Despite Leeson, I remain persuaded that the “reasonable legislator” did not intend each and every image or video medium to be the unit of prosecution for possession. Requiring proof that the defendant possessed the medium, when the defendant knew or should have known that the medium depicted a child or children engaged in a prohibited sexual act, is the additional element not required for manufacturing that persuades me that the unit of prosecution is different for possession. In addition, it would have been a simple matter for the Legislature to have stated that “It is unlawful for a person to intentionally possess any obscene image or video medium depicting . . . .” In the alternative, the Legislature could have simply written that “each and every image or video clip shall be deemed a separate offense” as it did in
{60} I also conclude that the date of downloading such media cannot be the unit of prosecution because the downloading date is not reflected in the language, history, or purpose of the legislation. Majority op. ¶¶ 35, 42. Whether the defendant‘s conduct is unitary depends entirely on what conduct the Legislature intended to proscribe, and the language in the statute does not divide possession based on when the medium was obtained.
{61} I am also not convinced that the difference in punishment between possession of child pornography and criminal sexual contact of a minor leads to the rule of lenity. Majority op. ¶¶ 30, 43. If a defendant has criminal sexual contact with more than one minor, the defendant is punished multiple times. Each child is a victim. If a defendant has criminal sexual contact with the same minor on more than one date, or in different geographic locations, the defendant is subject to multiple punishments. State v. Salazar, 2006-NMCA-066, ¶ 30, 139 N.M. 603, 136 P.3d 1013.
{62} The consequences of the unit of prosecution that I have hypothesized is that a defendant who possesses a medium containing multiple images of different children engaged in distinct prohibited sexual acts, or the same child or children participating in distinct prohibited sexual acts, is subject to multiple convictions, which might result in an extraordinarily lengthy sentence. This consequence advances what we have interpreted to be the purpose of this legislation, which is to deter the continued victimization of a child who is the subject of child pornography. As noted by the majority in the last sentence of paragraph 29: “Instead, [prohibition of possession] draws attention to the fact that a unitary conduct analysis for possession is not likely what the Legislature intended because a defendant would have no incentive to stop downloading child pornography after the first image.” To interpret
{63} I conclude that the unit of prosecution for possession of child pornography is based on the number of different child victims participating in distinct prohibited sexual acts, or the same child or children participating in distinct prohibited sexual acts. As to each child victim, possession is a continuing course of conduct if the child is depicted performing the same prohibited sexual act resulting in one unit of prosecution. Similarly, when more than one child is depicted performing the same prohibited sexual act, the Legislature treats the possession as a continuing course of conduct resulting in one unit of prosecution until a different child becomes a subject of the prohibited sexual act.
{64} For the foregoing reasons, I respectfully dissent.
EDWARD L. CHÁVEZ, Justice
Topic Index for State v. Olsson, Nos. 33,226/33,565
APPEAL AND ERROR
Standard of Review
CRIMINAL LAW
Sexual Exploitation of Children
STATUTES
Interpretation
Legislative Intent
Rules of Construction