                             2013 IL App (2d) 120068
                                  No. 2-12-0068
                         Opinion filed September 27, 2013
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 11-CF-344
                                       )
PAUL F. MURPHY,                        ) Honorable
                                       ) Robert G. Kleeman,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       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
2013 IL App (2d) 120068


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 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



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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.




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¶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 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



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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.




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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 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.




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¶ 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.



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¶ 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 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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