Rea v. State ( 2015 )

Cite as 2015 Ark. 431
SUPREME COURT OF ARKANSAS
No. CR-14-555
MICHAEL EUGENE REA Opinion Delivered November 19, 2015
APPELLANT
APPEAL FROM THE SALINE
V. COUNTY CIRCUIT COURT
[NO. 63CR-13-39]
STATE OF ARKANSAS HONORABLE ROBERT HERZFELD,
APPELLEE JUDGE
AFFIRMED.
COURTNEY HUDSON GOODSON, Associate Justice
A jury in the Saline County Circuit Court found appellant Michael Eugene Rea guilty
of four counts of computer exploitation of a child in the first degree and of twenty counts
of distributing, possessing, or viewing matter depicting sexually explicit conduct involving
a child. Running some of the counts consecutively and others concurrently, the circuit court
sentenced Rea as an habitual offender to a total of 310 years in prison. For reversal, Rea
argues that the circuit court erred by not reducing each charge to one count because multiple
convictions for the same offense violates his right to be free from double jeopardy.1 We
1
This case originated in the Arkansas Court of Appeals as a no-merit appeal pursuant
to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k)(1) of the Rules of the Arkansas
Supreme Court and Court of Appeals. The court of appeals ordered rebriefing, Rea v. State,
2015 Ark. App. 414, after which Rea’s counsel chose to submit a merit brief. We transferred
the appeal to this court, as it involves an issue of first impression concerning the
interpretation of an Arkansas statute. Therefore, our jurisdiction is pursuant to Arkansas
Supreme Court Rule 1-2(b)(1) & (6).
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affirm.
The prosecuting attorney in Saline County charged Rea with four counts of computer
exploitation of a child in the first degree, a violation of Arkansas Code Annotated section 5-
27-605(a) (Repl. 2013), and with twenty counts of distributing, possessing, or viewing matter
depicting sexually explicit conduct involving a child, which is a violation of Arkansas Code
Annotated section 5-27-602(a) (Repl. 2013).2 The record reveals that the charges arose from
a search of a computer hard drive and a laptop computer located in Rea’s home, as conducted
by special agents of the cyber-crimes unit of the Arkansas Attorney General’s Office. The
four counts of first-degree computer exploitation involved four different photographs found
on the computer hard drive. These photographs depicted the genitalia of a male, T.S., when
when he was fifteen and sixteen years old. T.S. testified that he was in Rea’ bedroom when
the photographs were taken and that he drank alcohol and used drugs at Rea’s home. Both
in his statements to the agents and in his testimony at the trial, Rea admitted that he took the
photographs of T.S. The twenty counts of distributing, possessing, or viewing matter
depicting sexually explicit conduct involving a child were based on eighteen different
photographs and two separate videos. These photographs and videos were found on Rea’s
hard drive and the laptop computer, and they all depicted adolescent males engaging in
sexually explicit conduct.
Rea argues on appeal that the twenty counts of possessing the pornographic
2
Although hundreds of photographs were found, the prosecuting attorney elected
to charge Rea with only twenty counts.
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photographs and videos and the four counts of computer exploitation should have been
reduced to one count for each offense as a matter of double jeopardy. With respect to section
5-27-602, he contends that the General Assembly’s use of the term “any” is ambiguous and
that, based on the rule of lenity, this court should strictly construe the statute in his favor to
hold that his possession of the multiple images constitutes but a single offense.
One of the protections of the double-jeopardy clause is to protect a defendant from
multiple punishments for the same offense. Myers v. State, 2012 Ark. 143, 400 S.W.3d 231.
Our General Assembly has codified this principle in Arkansas Code Annotated section 5-1-
110(a)(5) (Repl. 2013), which provides that a defendant may not be convicted of more than
one offense if the conduct constitutes an offense defined as a continuing course of conduct and
the defendant’s course of conduct was uninterrupted, unless the law provides that a specific
period of the course of conduct constitutes a separate offense. Under this statute, the test is
whether the individual acts are prohibited or the course of action they constitute; if the
former, each act is punished separately, if the latter, there can be but one penalty. See Ricks
v. State, 327 Ark. 513, 940 S.W.2d 422 (1997); Hagen v. State, 318 Ark. 139, 883 S.W.2d
832, 834 (1994); Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980).
Both the United States Supreme Court and this court have made it clear that it is the
legislature that determines crimes, fixes punishments, and has the authority to impose
cumulative punishments for the same conduct. Rowbottom v. State, 341 Ark. 33, 13 S.W.3d
904 (2000) (citing Missouri v. Hunter, 459 U.S. 359 (1983)); see also Sherman v. State, 326 Ark.
153, 931 S.W.2d 417 (1996). The “question whether punishments imposed by a court after
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a defendant’s conviction upon criminal charges are unconstitutionally multiple cannot be
resolved without determining what punishments the Legislative Branch has authorized.”
Whalen v. United States, 445 U.S. 684, 688 (1980). “Because the substantive power to
prescribe crimes and determine punishments is vested with the legislature . . . the question
under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of
legislative intent[.]” Ohio v. Johnson, 467 U.S. 493, 499 (1984). “With respect to cumulative
sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent
the sentencing court from prescribing greater punishment than the legislature intended.”
Hunter, 459 U.S. at 366 (1983).
This court reviews issues of statutory interpretation de novo, as it is for this court to
decide the meaning of a statute. Newman v. State, 2011 Ark. 112, 380 S.W.3d 395. We
construe criminal statutes strictly, resolving any doubts in favor of the defendant. Thompson
v. State, 2014 Ark. 413, 464 S.W.3d 111. However, even strict construction of penal statutes
does not override the primary consideration of all statutory construction—the intent of the
legislature. Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985). We construe the statute just
as it reads, giving the words their ordinary and usually accepted meaning in common
language, and if the language of the statute is plain and unambiguous, and conveys a clear and
definite meaning, there is no occasion to resort to rules of statutory interpretation. Metzner
v. State, 2015 Ark. 222, 462 S.W.3d 650.
The statute in question, section 5-27-602(a)(2), provides that a person commits the
offense of distributing, possessing, or viewing of matter depicting sexually explicit conduct
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involving a child if the person knowingly:
(2) Possesses or views through any means, including on the Internet, any
photograph, film, videotape, computer program or file, computer-generated
image, video game, or any other reproduction that depicts a child or
incorporates the image of a child engaging in sexually explicit conduct.
(Emphasis supplied.) Our question is whether the General Assembly intended to impose
separate sanctions for the possession of each photograph and each videotape that Rea
possessed. When examining the language of the statute, we note that it criminalizes the
possession of “any” of the proscribed items that are expressed in singular form. As pertinent
here, the statute prohibits the possession of “any” “photograph” and “any” “videotape.” In
our view, the plain language of the statute demonstrates that the General Assembly
unambiguously intends that each act of possession is a discrete and independent offense.
Consequently, the statute authorizes separate convictions for each prohibited photograph and
videotape that is possessed.
Our conclusion is supported by courts in a significant number of jurisdictions. As
recently noted by the North Dakota Supreme Court, when the term “any” is followed by
words in the singular formulation, the clear indication is that the legislature intended and
authorized punishment for each differing conduct. Peterka v. State, 864 N.W.2d 745 (N.D.
2015) (upholding convictions and sentences on 119 counts of unlawful possession of images
of sexual conduct by a minor). See also, e.g., Williams v. Commonwealth, 178 S.W.3d 491, 495
(Ky. 2005) (“The singular form of ‘photograph’ read in conjunction with the term ‘any’
clearly indicates that the Legislature intended prosecution for each differing photograph”);
State v. Mather, 646 N.W.2d 605, 610–11 (Neb. 2002) (“The singular form of ‘photographic
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representation’ covered under the statute read in conjunction with the term ‘any’ indicates
that the Legislature intended prosecution for each differing photographic representation.”);
State v. Cobb, 732 A.2d 425 (N.H. 1999) (relying on the use of the word “any” to hold the
legislature intended each photograph to be a separate offense); Commonwealth v. Davidson, 938
A.2d 198 (Penn. 2007) (holding that the use of the word “any” in conjunction with a singular
object means that each possession constitutes a distinct occurrence and a separate offense);
State v. Multaler, 643 N.W.2d 54 (Wis. 2002); State v. Gillespie, 316 P.3d 126, 133 (Idaho Ct.
App. 2013) (explaining that “our Supreme Court has not viewed the word ‘any’ as a
collective term limiting prosecution to a single possession charge but has, quite to the
contrary, determined that multiple charges are appropriate under a statute that prohibits the
possession of ‘any’ of the singular items described”); People v. Murphy, 997 N.W.2d 757 (Ill.
Ct. App. 2013) (noting that the statute proscribes possession of any “photograph,” not
“photographs,” and the singular form combined with the use of the word “any,” weighs in
favor of interpreting the statute to mean any one item of pornography in any one of the
various media described in the statute).
As observed by the Supreme Court of Illinois, statutes prohibiting the possession of
child pornography are designed to protect children from exploitation by eliminating the
market for such materials. People v. Geever, 522 N.E.2d 1200 (Ill. 1988). The court in Geever
also noted that victims of child pornography may be haunted far into the future based on the
knowledge that his or her pornographic image is circulating within the mass distribution
system for all to see.
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We conclude that section 5-27-602 does not impose multiple prosecutions for the
same offense in violation of the double jeopardy clause. Instead, the statute permits separate
prosecutions for the knowing possession of “any” prohibited photograph or videotape. As
stated by the Pennsylvania Supreme Court in Davidson, supra, those who violate a statute by
possessing numerous images are “not entitled to a volume discount.” Davidson, 938 A.2d at
221. Consequently, the circuit court did not err by rejecting Rea’s argument.
With respect to his convictions under section 5-27-605,3 Rea has not favored us with
any argument explaining how his multiple convictions under the statute result in a double-
jeopardy violation. Although he has quoted the language of the statute, Rea presents no
specific argument, as he has for section 5-27-602, that the General Assembly did not intend
multiple punishments for the same act. Therefore, addressing a challenge to section 5-27-605
would require this court to develop an argument on Rea’s behalf. However, this court does
not research or develop arguments for appellants. Sims v. State, 2015 Ark. 363, ___ S.W.3d
___; Green v. State, 2012 Ark. 19, 386 S.W.3d 413; Clemons v. State, 2010 Ark. 337, 369
S.W.3d 710. We decline to discuss the issue any further.
Affirmed.
Jones Law Firm, by: F. Parker Jones III, for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
3
In relevant part, section 5-27-605(a)(1), a person commits computer exploitation of
a child in the first degree if the person causes or permits a child to engage in sexually explicit
conduct and knows, has reason to know, or intends that the prohibited conduct may be
photographed.
7