               IN THE SUPREME COURT OF IOWA
                              No. 06 / 05-2028

                         Filed February 23, 2007


STATE OF IOWA,

      Appellant,

vs.

RANDALL FREDRICK MUHLENBRUCH,

      Appellee.


      Appeal from the Iowa District Court for Marshall County, Kim M.

Riley, District Associate Judge.



      The State appeals the ruling of the district court holding that a

criminal defendant may be charged under Iowa Code section 728.12(3) with

only one offense for possession of a computer that contains multiple

pornographic images. AFFIRMED.



      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant

Attorney General, Jennifer Miller, County Attorney, and Michael Salvner,

Assistant County Attorney, for appellant.



      Barry S. Kaplan and Melissa A. Nine of Kaplan & Frese, LLP,

Marshalltown, for appellee.
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APPEL, Justice.

      In this appeal, we must decide if Iowa Code section 728.12(3) (2003)

creates a single criminal offense for possession of a computer that contains

pornographic depictions of minors, regardless of the number of images, or

whether the statute establishes a separate offense for each pornographic

image stored in or accessible on a single computer. We join the appellate

courts in Kansas and Arizona in holding that, under a statute that prohibits

possession of a computer or other medium that depicts pornographic

images, only one offense arises from possession of one computer or

medium, regardless of the number of images stored on the system.

      I.    Background Facts and Proceedings.

      In this case, defendant Randall Muhlenbruch possessed a computer

containing pornographic images of minors. The images were discovered by

the defendant’s wife, who asked a friend to copy the images onto a

computer disk and turn them over to the police for investigation.         A

subsequent examination of the defendant’s computer led to the recovery of

348 pornographic images of sexual activity by minors.

      The State charged Muhlenbruch with ten counts of sexual

exploitation of a minor under Iowa Code section 728.12(3). Iowa Code
section 728.12(3) states:

      It shall be unlawful to knowingly purchase or possess a
      negative, slide, book, magazine, computer, computer disk, or
      other print or visual medium, or an electronic . . . storage
      system . . . which depicts a minor . . . engaging in a prohibited
      sexual act or the simulation of a prohibited sexual act.

The information filed by the State reveals that each count was based on the

downloading of prohibited sexual images onto his computer on different

days. The images also involved different minors.
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      Muhlenbruch filed a motion to adjudicate law points, arguing that

because he possessed only one computer containing depictions of

prohibited sexual acts, he could be charged with only one count under

section 728.12(3). The district court, in a thorough opinion, granted the

motion. The district court noted that “the plain reading of the Iowa statute

under which Defendant is charged fails to criminalize each image of child

pornography on a computer or computer disk.”

      The State appeals, contending that the district court erred in

concluding that Muhlenbruch could be charged under Iowa Code section

728.12(3) with only one offense for possession of a computer where the

computer contained multiple pornographic images.

      II.    Standard of Review.

      This court reviews a trial court’s ruling on a motion to adjudicate law

points for correction of legal error. State v. Iowa Dist. Ct., 616 N.W.2d 575,

577-78 (Iowa 2000). The appropriateness of the district court’s action turns

on the correctness of its interpretation of the relevant statutes, which are

reviewable for correction of errors at law as well. Id.

      III.   Discussion.

      Over one hundred years ago, this court stated:

      Criminal statutes are . . . inelastic, and cannot by construction
      be made to embrace cases plainly without the letter though
      within the reason and policy of the law.

State v. Lovell, 23 Iowa 304, 304 (1867). This century old principle controls

the outcome in this case.

      Iowa Code section 728.12(3) prohibits the “possession” of a

“computer” or “other print or visual medium” that depicts a minor engaged

in prohibited sexual acts. The statute plainly does not define the crime as

possession of a pornographic image involving a minor. It defines the crime
                                      4

as possession of a “computer” or “other print or visual medium” that

contains such an image.

      It is undisputed that Muhlenbruch possessed only one computer and,

as a result, it would seem to follow that he could be charged only with one

crime. The State seeks to avoid this result by asserting that the phrase

“other print or visual medium” should be expansively defined to include

individual pornographic images. Iowa Code section 728.12(3) does not

define the term “medium.” In the absence of a legislative definition, words

in a statute are given their ordinary meaning. State v. White, 545 N.W.2d

552, 555 (Iowa 1996).     A medium is ordinarily the instrumentality of

expression rather than the expression itself. Webster’s Third International

Dictionary 1403 (unabr. ed. 2002). In the field of computer science, a

medium is an “object or device . . . on which data is stored.” The American

Heritage Dictionary of the English Language (4th ed. 2000). Using these

ordinary definitions, it is the possession of the computer or other

instrumentality that contains certain images, and not the possession of

each individual pornographic image, that defines the crime.

      The State, however, cites State v. Kidd, 562 N.W.2d 764 (Iowa 1997),

in support of its position. In Kidd, the defendant possessed three sawed-off
shotguns that were bundled together in a sleeping bag. The State charged

the defendant with three separate crimes under Iowa Code section 724.3, a

statute which prohibited knowing “possess[ion] of an offensive weapon.” On

appeal we upheld the multiple convictions. Among other things, this court

noted that “an” connotes a singular item in contrast to the word “any,”

which may be plural. Id. at 765-66.

      When read in context, Kidd supports the view that Muhlenbruch may

be charged only with one crime for possession of one computer containing

pornographic materials. In Kidd, the unit of prosecution was “possess[ion]
                                       5

of an offensive weapon.” Here, the unit of prosecution is “possess[ion] . . . of

a computer . . . or other visual or print medium.” If Muhlenbruch had three

computers, bundled together, which each contained pornographic material,

he could have been charged with three separate criminal offenses, as was

the defendant in Kidd.      In this case, however, it is undisputed that

Muhlenbruch possessed only one computer.

      We note that other appellate courts have reached the same result in

interpreting similar statutes that prohibit possession of computers or other

visual mediums. For instance, the Kansas Court of Appeals has held that

under a Kansas statute that prohibited “possessing” of “other printed or

visual medium” in which a visual depiction of a child engaging in sexually

explicit conduct is shown or heard, a criminal defendant may be charged

with only one offense for possession of each medium, regardless of the

number of images contained. State v. Donham, 24 P.3d 750, 755 (Kan. Ct.

App. 2001). In so holding, the Kansas court noted that “[i]f the legislature

had intended to criminalize possession of each sexually explicit image of a

child contained on a floppy disk, the legislature would have included

language such as possession of any image stored or retrieved from a floppy

disk as a means of violating the statute.” Id. (emphasis added).

      Similarly, an Arizona appellate court has held that a defendant

possessing a single roll of film with multiple pornographic images may only

be charged with one offense under a statute that prohibited “possessing . . .

any visual or print medium in which minors are engaged in sexual

conduct.” State v. Valdez, 894 P.2d 708, 711-13 (Ariz. Ct. App. 1994).

Among other things, the Arizona court contrasted the state law provision

with 18 U.S.C. §§ 2251 and 2252, which Congress amended in 1984 to

delete references to “visual or print medium” and substitute the phrase

“visual depiction.” Id. at 713 n.4.
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      The State cites a number of cases from other jurisdictions in support

of its position. These cases, however, are plainly distinguishable. For

example, the Wisconsin Court of Appeals upheld a defendant’s conviction

on twenty-eight counts of possession of child pornography based on images

found on two computer disks where the statute prohibited possession of a

“pictorial representation.” State v. Mutaler, 632 N.W.2d 89, 94 (Wis. Ct.

App. 2001). The Minnesota Court of Appeals has also found that a statute

prohibiting possession of, among other things, “a pornographic work”

supported multiple convictions for possession of illicit images in a single

medium. State v. Bertsch, 689 N.W.2d 276, 280-81 (Minn. Ct. App. 2004),

aff’d in part, rev’d in part on other grounds, 707 N.W.2d 660 (Minn. 2006).

The Iowa statute, however, does not prohibit possession of a “pictorial

representation” or “a pornographic work,” but only possession of a

computer or other visual medium that contains a pornographic image.

      While we find that the meaning of the statutory language is clear,

even if the State could convince us that the statute is ambiguous as

suggested at oral argument, it would not change the result in this case.

Like nearly all state supreme courts, this court has repeatedly held that

penal statutes are to be interpreted strictly with doubts therein resolved in
favor of the accused. State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981);

State v. Lawr, 263 N.W.2d 747, 750 (Iowa 1978); State v. Conley, 222

N.W.2d 501, 502 (Iowa 1974). Sometimes referred to as the rule of lenity,

this court has recognized that strict construction of criminal statutes

should be applied in cases where there is doubt regarding the allowable unit

of prosecution. Kidd, 562 N.W.2d at 765. As a result, even if Iowa Code

section 728.12(3) were ambiguous on the question of the allowable unit of

prosecution, our settled law requires that any doubt be resolved in favor of

Muhlenbruch.
                                      7

      The State zealously asserts policy reasons for multi-count criminal

liability under the facts of this case. For example, the State notes that each

child photographed in a sexually explicit manner is a victim and that

Muhlenbruch should be punished accordingly. Our task, however, is to

enforce the statute as written.     Any recasting of the scope of criminal

liability under Iowa Code section 728.12(3) is the province of the legislature,

not this court. Lovell, 23 Iowa at 304.

      Muhlenbruch also asserts that multiple prosecutions under Iowa

Code section 728.12(3) for possession of a single computer violates the

Double Jeopardy and Cruel and Unusual Punishment Clauses of the United

States Constitution. The record reveals that the motion to adjudicate law

points was based solely on “the wording of the statute” and, as a result, the

constitutional issues have not been preserved. Meier v. Senecaut, 641

N.W.2d 532, 537-38 (Iowa 2002). In any event, our resolution of the case

eliminates the need to address them.

      IV.    CONCLUSION.

      The district court correctly concluded that under the facts presented

Muhlenbruch could be charged with only one offense under Iowa Code

section 728.12(3).
      AFFIRMED.
