                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Murphy, 2013 IL App (2d) 120068




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    PAUL F. MURPHY, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-12-0068


Filed                      September 27, 2013


Held                       Defendant’s convictions for 15 counts of aggravated child pornography
(Note: This syllabus       were upheld over his contention that possession of multiple pornographic
constitutes no part of     images of young girls is only a single offense when images of different
the opinion of the court   girls are depicted, since the legislature’s objective of eliminating the
but has been prepared      market for child pornography would not be furthered by applying the rule
by the Reporter of         of lenity to permit only one punishment under such circumstances.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Du Page County, No. 11-CF-344; the
Review                     Hon. Robert G. Kleeman, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Thomas A. Lilien and Kerry Goettsch, both of State Appellate Defender’s
Appeal                     Office, of Elgin, for appellant.

                           Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman and
                           Edward R. Psenicka, Assistant State’s Attorneys, of counsel), for the
                           People.


Panel                      JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                           Justice Hudson concurred in the judgment and opinion.
                           Justice Hutchinson specially concurred, with opinion.




                                            OPINION

¶1          Following a bench trial in the circuit court of Du Page County, defendant, Paul F.
        Murphy, was convicted of 15 counts of aggravated child pornography (720 ILCS 5/11-
        20.3(a)(6) (West 2010)) and was sentenced to a 36-month term of probation. The convictions
        were based on defendant’s possession of a computer thumb drive containing pornographic
        images of girls ranging in age from approximately three to nine years of age. Each count
        pertained to a separate image. Relying on People v. McSwain, 2012 IL App (4th) 100619,
        defendant argues that the simultaneous possession of multiple pornographic images
        constitutes but a single offense and will not support multiple convictions. The State argues
        that the decision in McSwain is incorrect and that, in any event, McSwain is distinguishable.
        We affirm.
¶2          To understand McSwain, it is helpful to be familiar with the principles that emerged from
        our supreme court’s decision in People v. Carter, 213 Ill. 2d 295 (2004). The defendant in
        Carter was convicted of multiple counts of unlawful possession of a weapon by a felon. The
        statute defining that offense provides, “It is unlawful for a person to knowingly possess on
        or about his person or on his land or in his own abode or fixed place of business any weapon
        *** or any firearm or any firearm ammunition if the person has been convicted of a felony
        under the laws of this State or any other jurisdiction.” (Emphasis added.) 720 ILCS 5/24-
        1.1(a) (West 1996). The Carter court examined that language in order to ascertain whether
        the General Assembly “intended for the simultaneous possession of weapons and
        ammunition to be the same offense or separate offenses.” Carter, 213 Ill. 2d at 302. To
        resolve the question, the Carter court was required to determine the “allowable unit of
        prosecution” under the statute. Id. The court concluded that the word “any” made it possible
        to read the statute to mean either (1) that the possession of each firearm and of firearm
        ammunition constituted a separate offense or (2) that the simultaneous possession of multiple
        firearms and of firearm ammunition constituted only a single offense. The statute was

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     ambiguous because “any” could signify “ ‘some,’ ‘one out of many’ or ‘an indefinite
     number.’ ” Id. (quoting Black’s Law Dictionary 94 (6th ed. 1990)). According to the Carter
     court, “the term ‘any’ has categorical meanings of ‘any one of a kind,’ ‘any kind,’ or ‘any
     number.’ ” Id. at 301-02. Having determined that the statute was ambiguous with regard to
     the allowable unit of prosecution, the court applied the principle that an ambiguity in a
     criminal statute must be resolved in the defendant’s favor. Id. at 302 (citing People ex rel.
     Gibson v. Cannon, 65 Ill. 2d 366, 370-71 (1976)). The court therefore held that simultaneous
     possession of weapons and ammunition constitutes only a single offense that will support
     only one conviction. The court noted that its decision was consistent with decisions in other
     jurisdictions interpreting similar statutory provisions. Id. at 304-06.
¶3       The McSwain court applied these principles to the statute defining the offense of child
     pornography. As pertinent to both McSwain and the case presently before us, that statute
     provides as follows:
         “A person commits the offense of child pornography who:
                                              ***
                  *** with knowledge of the nature or content thereof, possesses any film,
             videotape, photograph or other similar visual reproduction or depiction by computer
             of any child *** whom the person knows or reasonably should know to be under the
             age of 18 *** engaged in any activity described in subparagraphs (i) through (vii) of
             paragraph (1) of this subsection[.]” (Emphasis added.) 720 ILCS 5/11-20.1(a)(6)
             (West 2010).
¶4       Relying on Carter, the McSwain court stated as follows:
             “We find the use of the term ‘any’ in the child-pornography statute does not
         adequately define the ‘allowable unit of prosecution.’ The statute is therefore ambiguous,
         and we must construe the statute in favor of defendant. Like the scenario in Carter,
         where the statutory language is ambiguous and in the absence of a statutory provision to
         the contrary, the simultaneous possession of the images cannot support multiple
         convictions in this case.” McSwain, 2012 IL App (4th) 100619, ¶ 59.
¶5       Although an ambiguity in a criminal statute will ordinarily be resolved in the defendant’s
     favor, that rule of construction–known as the rule of lenity (see People v. Jackson, 2011 IL
     110615, ¶ 21)–“does not require a court to construe a statute so rigidly as to defeat the intent
     of the legislature” (id.). In People v. Geever, 122 Ill. 2d 313 (1988), our supreme court
     observed that the prohibition of possession of child pornography was designed to protect
     children from exploitation by eliminating the market for such materials. Id. at 326. The
     Geever court also noted that the private possession of pornographic images of children
     “exacerbates the harm and abuse to the child victim.” Id. The Geever court explained:
             “ ‘The injury suffered by child victims of pornography is akin to that experienced by
         the victims of sexual abuse and prostitution. Yet, pornography poses an even greater
         threat to the child victim than does sexual abuse or prostitution. Because the child’s
         actions are reduced to a recording, the pornography may haunt him in future years, long
         after the original misdeed took place. A child who has posed for a camera must go
         through life knowing that the recording is circulating within the mass distribution system

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         for child pornography. Therefore, even if the child can overcome the humiliation of the
         act of posing itself, he must carry with him the distressful feeling that his act has been
         recorded for all to see.’ ” Id. at 327 (quoting David P. Shouvlin, Preventing the Sexual
         Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981)).
¶6       To hold that one who possesses child pornography commits but a single offense no
     matter how many different images he or she possesses, and no matter how many children are
     depicted, could severely undermine the legislative objectives of eliminating the market for
     child pornography. An offender having obtained one pornographic image of one child would
     have a decreased incentive to refrain from obtaining additional images of additional children.
     Although by continuing to participate in the market for child pornography an offender might
     increase the risk of his or her criminal activity being discovered and might risk more serious
     punishment upon discovery, he or she would remain guilty of only a single offense.
¶7       It is difficult to fathom why our General Assembly would intend such a result amounting
     to what one court has referred to as a “volume discount” for possession of child pornography.
     Commonwealth v. Davidson, 938 A.2d 198, 221 (Pa. 2007). In Davidson, the Supreme Court
     of Pennsylvania held that, under a statute criminalizing the possession of “any book,
     magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material
     depicting a child under the age of 18 years engaging in a prohibited sexual act or in the
     simulation of such act” (emphases added) (18 Pa. Cons. Stat. § 6312(d)), the unit of
     prosecution consisted of each such item in the offender’s possession. Davidson, 938 A.2d
     at 218. The Davidson court explained:
         “The [Pennsylvania] General Assembly’s use of the term ‘any,’ which could mean one
         or more items, suggests a lack of restriction or limitation. Further, all of the objects listed
         in the statute are singular, e.g., a ‘photograph’ or a ‘computer depiction,’ meaning that
         each photograph or computer depiction constitutes a distinct occurrence of offensive
         conduct ***. [The applicable statute] specifically criminalizes possession of any
         computer depiction, not possession of a computer hard drive which could contain an
         unknown quantity of images. [Citation.] The plain language of the statute evidences the
         intent of the General Assembly to make each image of child pornography possessed by
         an individual a separate, independent crime ***.” Id. at 219.
     The Davidson court observed that, by holding that possession of separate images constitutes
     separate crimes, it had aligned itself with the significant majority of jurisdictions that have
     considered the question. Id.
¶8       In the statute at issue here, like the Pennsylvania child pornography statute at issue in
     Davidson, the prohibited items are singular. The statute proscribes possession of any
     “photograph,” not “photographs,” and any “depiction,” not “depictions.” This weighs in
     favor of interpreting “any” to mean any one item of pornography in any one of the various
     media described in the statute. We recognize that the statute at issue in Carter similarly
     proscribed possession of any “firearm,” not “firearms.” The statute also proscribed
     possession of any “firearm ammunition,” a term that can be either singular or plural. The
     Carter decision did not address the significance of the General Assembly’s use of the
     singular word “firearm” in determining that possession of multiple firearms and ammunition


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       is a single offense. More importantly, however, the Carter court’s application of the rule of
       lenity did not produce a result antithetical to the purpose of the statute.
¶9          Unlike the weapons offense at issue in Carter, possession of child pornography involves
       specific, individual victims, and the extent to which a particular child is victimized through
       the production of pornographic materials might very well depend on the demand for images
       of that child. Applying the rule of lenity to permit only one punishment for possession of
       multiple images of different children increases demand for those images by lowering the
       price for acquiring child pornography. Mechanically extending the analysis in Carter to this
       case without regard to the obvious and fundamental differences between the possession
       offenses involved in the two cases does not give effect to the legislative intent in any
       meaningful way.
¶ 10        Arguably, the McSwain court’s reliance on Carter was misplaced. Even though that case
       involved images of a single child, offering pedophiles a “volume discount” for pornographic
       images of a particular child increases the demand for such images and might result in the
       continued exploitation of that child. We need not reach the question of whether McSwain
       was correctly decided, however. Even assuming, arguendo, that it was the General
       Assembly’s intent that possession of multiple pornographic images of the same child should
       constitute but one offense, for the reasons discussed above we reject the suggestion that the
       General Assembly could have intended the same result where the offender is in possession
       of images of multiple children.
¶ 11        For the foregoing reasons, the judgment of the circuit court of Du Page County is
       affirmed.

¶ 12      Affirmed.

¶ 13       JUSTICE HUTCHINSON, specially concurring.
¶ 14       I agree with the majority that the trial court’s judgment should be affirmed. However, I
       believe that McSwain is distinguishable and that any discussion regarding the propriety of
       that decision is unnecessary to the resolution of this case.
¶ 15       In McSwain, the reviewing court addressed whether a defendant who received a single
       email that contained five separate images of the same child could be convicted of five counts
       of child pornography. McSwain, 2012 IL App (4th) 100619, ¶ 48. Relying on our supreme
       court’s decision in Carter, the court in McSwain found that the legislature’s use of the word
       “any” did not adequately define the “allowable unit of prosecution” and thus the court
       construed the statute in the defendant’s favor. Id. ¶ 59. The court concluded that “if the
       General Assembly wants to authorize multiple convictions for child pornography based on
       the simultaneous possession of images of the same minor displayed in a single e-mail, it
       knows how to do so.” (Emphasis added.) Id. ¶ 64.
¶ 16       Despite the significant factual differences, the majority discusses McSwain and concludes
       that “[t]o hold that one who possesses child pornography commits but a single offense no
       matter how many different images he or she possesses, and no matter how many children are


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       depicted, could severely undermine the legislative objectives of eliminating the market for
       child pornography.” (Emphasis added.) Supra ¶ 6. I would prefer not to ascribe such an
       overly broad interpretation to McSwain but, rather, would limit McSwain to its specific
       circumstances.
¶ 17       Therefore, I specially concur.




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