Appeal from the Circuit Court of Du Page County. No. 11-CF-344 Honorable Robert G. Kleeman, Judge, Presiding.
Justice Hudson concurred in the judgment and opinion.
Justice Hutchinson specially concurred, with 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 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 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 ...