State v. Gillespie- Sexually exploitative , 155 Idaho 714 ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket Nos. 39426/39427
STATE OF IDAHO, ) 2013 Opinion No. 70
)
Plaintiff-Respondent, ) Filed: December 30, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
CHASE DALTON GILLESPIE, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Bingham County. Hon. Darren B. Simpson, District Judge.
Judgments of conviction and sentences, affirmed.
Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy
Appellate Public Defender, Boise, for appellant. Sarah E. Tompkins argued.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
Attorney General, Boise, for respondent. Russell J. Spencer argued.
________________________________________________
GRATTON, Judge
In these cases consolidated for appeal, the defendant challenges judgments of conviction
and sentences for multiple counts of possession of sexually exploitative material for other than a
commercial purpose. The principle issues presented are whether the district court erred in
determining that the defendant’s possession of a thumb drive containing digital images of minors
involved in sexual activity constituted possession of “electronically reproduced visual material,”
and whether the district court violated the constitutional prohibition against double jeopardy by
imposing two sentences for what the defendant contends is a single act of possession.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In Docket No. 39426 in 2008, Chase Dalton Gillespie was charged with possession of
sexually exploitative material for other than a commercial purpose in violation of former Idaho
1
Code § 18-1507A. 1 In 2009, pursuant to a binding plea agreement, Gillespie pled guilty and the
district court withheld judgment and imposed five years of probation. On February 22, 2011, a
report of probation violations was filed. Gillespie thereafter admitted he was in violation of
terms of his probation by viewing pornography and by engaging in a sexual relationship with
another probationer. The district court delayed disposition on the probation violations until
resolution of additional criminal charges filed in Docket No. 39427.
In Docket No. 39427, on July 29, 2011, Gillespie was charged with two additional counts
of possession of sexually exploitative material for other than a commercial purpose. Count One
charged that Gillespie possessed on a thumb drive a digital image of a minor child engaging in
sexual conduct, and Count Two charged that he possessed a digital video of a minor child
engaging in sexual conduct. On the same day the information was filed, Gillespie filed a written
waiver of his right to a jury trial and the parties also filed a document entitled “Stipulated Facts.”
As clarified with the district court before trial, the stipulation stated that review of Gillespie’s
computer, computer materials, and Internet accounts showed that the seized thumb drive was the
only item containing illegal videos and images of minors involved in explicit sexual conduct and
that it held multiple videos and images. The State agreed to prosecute only the two filed charges.
In addition, the parties stipulated to the existence of most of the elements of the charges,
reserving certain limited issues for the court’s resolution. Two of those reserved issues are
pertinent to this appeal. First, the court was asked to determine whether the digital videos on the
thumb drive constitute “electronically reproduced visual material” under the definition in former
I.C. § 18-1507(k) (2006). 2 Second, the parties asked the district court to determine “whether
possessing each image or video may be prosecuted individually.” A brief court trial was
conducted that same day.
In its subsequent findings of fact and conclusions of law, the district court determined
that the digital photos and videos on the thumb drive fell within the definition of electronically
reproduced visual material under former I.C. § 18-1507(k). The district court held that Gillespie
had waived the double jeopardy issue because he did not challenge the information’s allegations
1
Idaho Code § 18-1507A was repealed effective July 1, 2012, and the substance of its
content was incorporated into I.C. § 18-1507 (2012).
2
Idaho Code § 18-1507(2)(k) was amended and is now designated I.C. § 18-1507(j).
2
of two separate offenses prior to trial as required by Idaho Criminal Rule 12(b)(2).
Alternatively, the court held that multiple charges were not violative of the Double Jeopardy
Clause because there were different child victims involved. The district court then found
Gillespie guilty on both charges.
In Docket No. 39426, the district court revoked probation, entered a judgment of
conviction, and imposed a unified sentence of ten years, with two years determinate. For the two
convictions in Docket No. 39427, the district court imposed unified sentences of ten years, with
three years determinate, with all three sentences to run consecutively, resulting in an aggregate
sentence of thirty years, with eight years determinate. Gillespie appeals.
II.
ANALYSIS
Gillespie claims that the district court erred in determining that the digital images he
possessed constituted “electronically reproduced visual material” under former I.C. § 18-
1507(k). Gillespie further claims that the district court erred in holding that his challenge to
multiple possession punishment was waived. In addition, Gillespie contends that the district
court erred in finding that, under the circumstances, he could be charged and sentenced for two
counts of possession and that by having done so, his Fifth Amendment guarantee against double
jeopardy was violated. Finally, Gillespie asserts that the district court abused its discretion by
imposing excessive sentences.
A. The Digital Images Constituted “Electronically Reproduced Visual Material”
The initial issue presented is one of statutory construction. Gillespie argues that in
Docket No. 39427, the district court erred when it determined that the digital images on the
thumb drive fell within the definition of “electronically reproduced visual material” under former
I.C. § 18-1507(k).
This Court exercises free review over the application and construction of statutes. State
v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a
statute is plain and unambiguous, this Court must give effect to the statute as written, without
engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219
(1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The words must be
given their plain, usual, and ordinary meaning, and the statute must be construed as a whole.
State v. Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001).
3
At the time of Gillespie’s possession of the thumb drive, on or about February 16, 2011,
the crime of possession of sexually exploitative material for other than a commercial purpose
was defined in I.C. § 18-1507A(2):
Every person who knowingly and willfully has in his possession any
sexually exploitative material as defined in section 18-1507, Idaho Code, for other
than a commercial purpose, is guilty of a felony and shall be punished by
imprisonment in the state prison for a period not to exceed ten (10) years and by a
fine not to exceed ten thousand dollars ($10,000).
“Sexually exploitative material” was then defined in former I.C. § 18-1507(2)(k) as follows:
“‘Sexually exploitative material’ means any photograph, motion picture, videotape, print,
negative, slide, or other mechanically, electronically, or chemically reproduced visual material
which depicts a child engaged in, participating in, observing, or being used for explicit sexual
conduct.”
Gillespie posits that the images he possessed do not fall within this definition of sexually
exploitative material because the thumb drive contained “digital image files” which, he contends,
are not within the category of “electronically reproduced visual material.” He predicates his
interpretation of the statute solely upon an amendment to Section 18-1507 adopted in 2012, after
Gillespie committed his offenses. Among other changes, the amendment added the word
“digitally” to the definition of “sexually exploitative material,” which now states:
“Sexually exploitative material” means any image, photograph, motion
picture, video, print, negative, slide, or other mechanically, electronically,
digitally or chemically produced or reproduced visual material which shows a
child engaged in, participating in, observing, or being used for explicit sexual
conduct, or showing a child engaging in, participating in, observing or being used
for explicit sexual conduct, in actual time, including, but not limited to, video
chat, webcam sessions or video calling.
Idaho Code § 18-1507(j) (2012) (emphasis added). Gillespie asserts that the definition in former
I.C. § 18-1507(k) must not have included digitally produced or reproduced images because the
term “digitally” was added to the statute in 2012. He reasons that because the legislature saw fit
to add specific reference to digital images by the 2012 amendment, the legislature was
acknowledging that digital images were not encompassed within the prior definition. In support
of this proposition, he cites State v. Leavitt, 153 Idaho 142, 146, 280 P.3d 169, 173 (2012),
which states that “[w]hen the legislature changes the language of a statute, it is presumed that
they intended to change the application or meaning of that statute.”
4
We are not persuaded. Contrary to Gillespie’s argument, a change to the application or
substantive meaning of a statute is not the only reason for legislative amendment; the legislature
also makes amendments to clarify or strengthen the existing provisions of a statute. Pearl v. Bd.
of Prof’l Discipline of Idaho State Bd. of Med., 137 Idaho 107, 113-14, 44 P.3d 1162, 1168-69
(2002); State v. Barnes, 133 Idaho 378, 384, 987 P.2d 290, 296 (1999); Stonecipher v.
Stonecipher, 131 Idaho 731, 735, 963 P.2d 1168, 1172 (1998); State ex rel. Wright v. Headrick,
65 Idaho 148, 156, 139 P.2d 761, 763 (1943); State v. Reed, 154 Idaho 120, 122-23, 294 P.3d
1132, 1134-35 (Ct. App. 2012). Thus, the statutory amendment adding “digitally” to the
definition of sexually exploitative materials does not inherently signify a legislative intent or
belief that digital images were theretofore excluded from the statute.
We think it abundantly clear that in its usual, ordinary meaning, the term “electronically
reproduced visual material” in the prior statute encompasses digital images. The Oxford
Dictionary defines “electronic” as “having or operating with the aid of many small components,
especially microchips and transistors, that control and direct an electric current[,] . . . of or
relating to electrons[,] . . . carried out or accessed by means of a computer or other electronic
device . . . .” And “flash drive,” a synonym for “thumb drive” is defined as “a small electronic
device containing flash memory that is used for storing data or transferring it to or from a
computer, digital camera, etc.” OXFORD DICTIONARIES (2013), available at
http://oxforddictionaries.com (emphasis added). In his argument to the district court, Gillespie
admitted that the thumb drive at issue is an “electronic instrument” and that the digital images
are “electronically stored” on the device. Under any commonsense definition, a digital image
downloaded onto a thumb drive is “electronically reproduced visual material” within the
meaning of the statute. The district court did not err in rejecting Gillespie’s argument to the
contrary.
B. Gillespie’s Challenge Was Not Waived
Gillespie’s possession of the thumb drive was charged as two criminal offenses. The
charges alleged possession of two images, a video and a photograph, depicting different children.
Gillespie contends that his possession of these images on a single thumb drive constitutes only a
5
single possession and, therefore, his Fifth Amendment guarantee against double jeopardy was
violated by the entry of two convictions and imposition of two sentences. 3
The district court held that Gillespie waived his claim that possession of more than one
image on a single digital device constitutes only a single criminal “possession” and therefore, the
Double Jeopardy Clause prohibits more than one conviction and sentence because he was
required to challenge the double charges in the information prior to trial pursuant to Idaho
Criminal Rule 12(b)(2). That rule provides:
Any defense objection or request which is capable of determination
without trial of the general issue may be raised before the trial by motion. The
following must be raised prior to trial:
....
(2) Defenses and objections based on defects in the complaint, indictment
or information . . . ; or
....
(6) Motion to dismiss based upon former jeopardy.
We conclude that the district court erred in determining that Gillespie waived his
challenge to multiple sentences by failing to challenge the information prior to trial. First, the
State did not and does not assert that Gillespie waived his challenge. Second, the State could not
do so. The challenge was, in fact, raised before trial in the issues the parties stipulated were to be
determined by the court. The second issue to be determined by the district court was “whether
possessing each image or video may be prosecuted individually.” Determination of that issue is
a precedent to the determination of whether, under the circumstances, a double jeopardy
violation has occurred. Quite simply, if Gillespie could only be prosecuted for one act of
possession but was prosecuted and sentenced for two acts of possession, a double jeopardy
violation would arise. Thus the matter was, in fact, raised before trial. The agreed upon
procedure for determination of the matter was to stipulate to certain facts and the issues for the
3
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
provides that no person shall “be subject for the same offense to be twice put in jeopardy of life
or limb.” The Clause affords protection against three things: a second prosecution for the same
offense after acquittal, a second prosecution for the same offense after conviction, and multiple
criminal punishments for the same offense. Schiro v. Farley, 510 U.S. 222, 229 (1994); State v.
McKeeth, 136 Idaho 619, 622, 38 P.3d 1275, 1278 (Ct. App. 2001). It is the third of these--
protection against double punishment--that is implicated here.
6
court to determine, conduct a brief trial, and secure a determination. The fact that Gillespie also
filed a post-trial motion to dismiss on the same basis did not render the issue untimely raised. 4
C. Gillespie Was Properly Charged and Sentenced for Two Crimes of Possession
Having held that the issue was not waived, we must determine whether, as Gillespie
contends, he has been subjected to two sentences for a single violation of I.C. § 18-1507A.
Whether Gillespie’s conduct in possessing one thumb drive containing two images of two
victims constituted one offense or two separately punishable offenses for double jeopardy
purposes depends upon how the statute defines the offense and the unit of prosecution intended
by the legislature according to the statute’s language. The issue, therefore, is a matter of
statutory construction. The question is: Under what circumstances, if any, does the law provide
that violation of the possession statute may result in multiple charges and/or punishments?
The object of statutory interpretation is to derive the intent of the legislature. State v.
Schulz, 151 Idaho 863, 866, 264 P.3d 970, 973 (2011). Statutory interpretation begins with the
literal language of the statute. Id. The language of the statute is to be given its plain, obvious,
and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219; Escobar, 134 Idaho at 389, 3
P.3d at 67.
Again, the statute at issue here is former I.C. § 18-1507A, which read:
(1) It is the policy of the legislature in enacting this section to protect
children from the physical and psychological damage caused by their being used
in photographic representations of sexual conduct which involves children. It is,
therefore, the intent of the legislature to penalize possession of photographic
representations of sexual conduct which involves children in order to protect the
identity of children who are victimized by involvement in the photographic
representations, and to protect children from future involvement in photographic
representations of sexual conduct.
(2) Every person who knowingly and willfully has in his possession any
sexually exploitative material as defined in section 18-1507, Idaho Code, for other
than a commercial purpose, is guilty of a felony, and shall be punished by
imprisonment in the state prison for a period not to exceed ten (10) years and by a
fine not to exceed ten thousand dollars ($10,000).
4
As the issue was raised pretrial, we need not discuss whether the Gillespie’s challenge in
this case actually falls within the Rule 12(b)(6) requirement of a pretrial motion to dismiss
“based upon former jeopardy.”
7
The term “sexually exploitative material” was defined by I.C. § 18-1507(2)(k) as, “any
photograph, motion picture, videotape, print, negative, slide, or other mechanically,
electronically, or chemically reproduced visual material which depicts a child engaged in,
participating in, observing, or being used for explicit sexual conduct.”
Gillespie focuses on the statutory language prohibiting possession of “any sexually
exploitative material.” He asserts that there are “two items of significance in this definition.”
Gillespie contends that the term “material” is a collective noun, reflecting an intent to limit
prosecution to that which is possessed collectively rather than singularly. He also points to the
term “any” and argues that other courts have construed that term to also reflect an intent to
prosecute collectively or, at least, that it is sufficiently ambiguous to require application of the
rule of lenity.
As noted, “sexually exploitative material” is a defined term and “material” refers to the
individual items listed in the definition provided by the legislature. Reading the definition from
I.C. § 18-1507(2)(k) in place of “sexually exploitative material,” the relevant language prohibits
knowingly and willfully possessing “any photograph, motion picture, videotape, print, negative,
slide, or other mechanically, electronically, or chemically reproduced visual material which
depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct.”
Thus, the definition refers to imaging media in the singular and refers to the victim, “a child,”
also in the singular.
Gillespie looks to other divided jurisdictions 5 to argue that the word “any,” as used in the
statute, is a collective term and does not identify the unit of prosecution to be each image or
5
Jurisdictions are split on whether the unit of prosecution for possession of child
pornography is each image possessed or all images possessed simultaneously. Some
jurisdictions have determined that multiple counts are appropriate where a defendant possesses
multiple images. United States v. Esch, 832 F.2d 531, 542 (10th Cir. 1987) (“[O]ur conclusion
that the correct unit of prosecution is each use of the children to create a visual depiction is
supported by the legislative history, which indicates an unequivocal intent to protect children
from the abuse inherent in the production of sexually explicit materials.”); State v. McPherson,
269 P.3d 1181, 1184-85 (Ariz. Ct. App. 2012) (“[U]nder our own statutes, we can only conclude
the legislature intended separate punishments for separate or duplicate images of child
pornography, even when those images are acquired at the same time.”); People v. Renander, 151
P.3d 657, 661-62 (Colo. App. 2006) (finding that the plain language of the statute, which
included “any,” and the general assembly’s statement declaring that mere possession of child
pornography resulted in continuing victimization of a child, showed the general assembly’s
8
intent to prohibit each item of sexually exploitative material); Fink v. State, 817 A.2d 781, 788
(Del. 2003) (finding that the clearest reading of the statute is that each individual visual depiction
of child pornography possessed constituted a separate offense); State v. Farnham, 752 So. 2d 12,
14-16 (Fla. Dist. Ct. App. 2000) (finding that the legislative intent was to make the possession of
one single depiction of child pornography illegal); Brown v. State, 912 N.E.2d 881, 894-95 (Ind.
Ct. App. 2009) (finding that the legislature’s use of the word “any” coupled with a listing of
objects in the singular indicated the legislature’s intent to criminalize each picture as a distinct
occurrence); 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. Fussell, 974 So. 2d 1223, 1235
(La. 2008) (“[W]e hold that the language of [the statute] evidences a legislative intent to allow a
separate conviction on a separate count for each child, in each sexual performance in which that
child is victimized, that is captured in any photographs, films, videotapes, or other visual
reproductions that a defendant intentionally possesses.”); State v. Mather, 646 N.W.2d 605, 610-
11 (Neb. 2002) (the term “any” along with the singular form of “photographic representation”
indicates that the legislature intended prosecution for each differing image); State v. Cobb, 732
A.2d 425, 433-34 (N.H. 1999) (finding that the use of “any” in the statute demonstrated that the
legislature intended the unit of prosecution to be each separate image); State v. Howell, 609
S.E.2d 417, 421 (N.C. Ct. App. 2005) (finding that the general assembly intended that a
defendant could be charged for each image of child pornography possessed in order to protect
individual minors from harm); Commonwealth v. Davidson, 938 A.2d 198, 219 (Pa. 2007) (the
word “any” followed by a list of singular objects demonstrated the general assembly’s intent to
make each image of child pornography a separate crime); State v. Martin, 674 N.W.2d 291, 303
(S.D. 2003) (interpreting the state statute to mean that each image of child pornography
constituted a separate offense, which comported with the underlying rationale of protecting
exploited children); Vineyard v. State, 958 S.W.2d 834, 838 (Tex. Crim. App. 1998) (holding
that the legislature intended to make possession of each item of child pornography an allowable
unit of prosecution); State v. Morrison, 31 P.3d 547, 555-56 (Utah 2001) (“The clearest reading
of the statute is that each individual ‘visual representation’ of child pornography that is
knowingly possessed by a defendant constitutes the basis for a separate offense.”); Mason v.
Commonwealth, 636 S.E.2d 480, 484 (Va. Ct. App. 2006) (finding that the use of the word “a”
followed by a succession of singular nouns in the definition of “sexually explicit visual material”
indicated the legislature’s intent that each image of child pornography constituted an offense);
State v. Multaler, 643 N.W.2d 437, 451 (Wis. 2002) (“The singular formulation of these items
covered under the statute modified by the term ‘any’ is evidence that the legislature intended
prosecution for each photograph or pictorial reproduction.”).
Jurisdictions holding that the unit of prosecution is all images possessed include United
States v. Polouizzi, 564 F.3d 142, 155 (2d Cir. 2009) (holding that the language “1 or more” in
the statute specifies the plural and, therefore, only one conviction was allowed for the possession
of multiple visual depictions of child pornography); United States v. Reedy, 304 F.3d 358, 367-
68 (5th Cir. 2002) (concluding that the federal statute was ambiguous and should be resolved in
the favor of lenity); Culver v. State, 22 So. 3d 499, 514-15 (Ala. Crim. App. 2008) (finding that
the unit of prosecution was the single act of possession regardless of how many items were
9
victim. However, despite what other jurisdictions may hold, our Supreme Court construed a
statute using the term “any,” followed by singularly described items, to allow for multiple
prosecutions and punishments in State v. Zaitseva, 135 Idaho 11, 13 P.3d 338 (2000). In
Zaitseva, the Idaho Supreme Court held that a defendant was properly convicted of fourteen
counts of possession of a forged, blank, or unfinished check found in the defendant’s possession
at the same time. Id. at 14, 13 P.3d at 341. The defendant argued that the multiple charges were
improper because language in the statute prohibited possession of a “check or checks,” and this
language indicated possession of more than one check constituted only one violation. Id. The
Idaho Supreme Court disagreed, citing the relevant portion of the statute which prohibited the
possession of “any blank or unfinished note or bank bill or check made in the form or similitude
of any promissory note or bill or check . . . with [the] intention to fill up and complete such blank
and unfinished note or bill or check.” Id. (quoting I.C. § 18-3605) (emphasis added). Thus, our
Supreme Court has not viewed the word “any” as a collective term limiting prosecution to a
actually possessed); People v. Manfredi, 86 Cal. Rptr. 3d 810, 819 (Cal. Ct. App. 2008) (finding
that the word “any” had been construed as ambiguously indicating the singular or the plural and
applying the rule of leniency to provide the defendant with the benefit of the ambiguity); People
v. McSwain, 964 N.E.2d 1174, 1188 (Ill. App. Ct. 2012) (finding that the simultaneous
possession of multiple images cannot support multiple convictions because the statute’s use of
the word “any” does not define the unit of prosecution and therefore, the statute must be
construed in favor of the defendant) (Note, however, that recently the Appellate Court of Illinois,
Second District issued two opinions regarding similar issues. In the first case, People v.
Sedelsky, 997 N.E.2d 664, 670 (Ill. App. Ct. 2013), the Court concluded that the same image
stored in the same digital medium cannot constitute separate offenses. In the second case,
People v. Murphy, 997 N.E.2d 760-61 (Ill. App. Ct. 2013), the Court stated, contrary to
McSwain, that images of multiple children could constitute separate offenses.); State v.
Muhlenbruch, 728 N.W.2d 212, 214-215 (Iowa 2007) (finding that the language of the statute,
which criminalized the possession of a computer or other visual or print medium, provided the
unit of prosecution as each computer and not the individual images within the computer); State v.
Donham, 24 P.3d 750, 756 (Kan. Ct. App. 2001) (holding that the plain language of the sexual
exploitation statute prohibits the possession of a floppy disk containing child pornography but
does not criminalize the individual images retrieved from the floppy disk); State v. Liberty, 370
S.W.3d 537, 553 (Mo. 2012) (applying the rule of lenity after finding the statute to be
ambiguous); State v. Ballard, 276 P.3d 976, 984-85 (N.M. Ct. App. 2012), cert. granted, 294
P.3d 446 (N.M. 2012) (finding that each distinct download constituted a separate offense, but
that multiple images within a download were not separate offenses); State v. Sutherby, 204 P.3d
916, 921 (Wash. 2009) (finding that the proper unit of prosecution is one based on the Court’s
prior construction of the term “any” and the rule of lenity).
10
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.
We are constrained to hold that the Supreme Court’s determination in Zaitseva is controlling in
this case and Gillespie was subject to prosecution for each image.
Finally, Gillespie asserts that other possession-based offense cases support his claim that
he could only be properly charged with one count of possession of sexually exploitative material,
relying upon State v. Major, 111 Idaho 410, 725 P.2d 115 (1986) and Brown v. State, 137 Idaho
529, 50 P.3d 1024 (Ct. App. 2002). However, Gillespie’s argument based upon these cases is the
same analysis presented by the lone dissent in Zaitseva. The dissent in Zaitseva, citing to Major,
contended that multiple charges are only appropriate when the actus reus prohibited by the
statute is committed more than once. Zaitseva, 135 Idaho at 16, 13 P.3d at 343 (Trout, J.
dissenting). The dissent further noted that the Court in Major had held that in order to determine
whether possession of stolen property constituted multiple offenses is to ask: “[W]ere the items
possessed as a part of ‘a single incident or pursuant to a common scheme or plan reflecting a
single, continuing [criminal] impulse or intent.’” Zaitseva, 135 Idaho at 16, 13 P.3d at 343
(Trout, J. dissenting); Major, 111 Idaho at 414, 725 P.2d at 119 (quoting State v. Lloyd, 103
Idaho 382, 383, 647 P.2d 1254, 1255 (1982) (unanimous decision)). Applying this test, the
dissent concluded that the actus reus of the crime is the possession and all of the checks were
possessed at the same time pursuant to a common scheme or plan reflecting a single, continuing
criminal impulse or intent, thus allowing only a single charge. Major, 111 Idaho at 414, 725
P.2d at 119. Similarly citing Major and Brown, 6 Gillespie argues that he is only subject to a
single count since the gravamen of the crime is possession and he possessed the images at the
same time as part of a single incident in which all of the images were received at the same time.
This contention was rejected by the majority in Zaitseva.
6
In Brown, we declined to hold how many crimes are committed when an individual
obtains possession of property with knowledge that the property came from more than one theft
or victim, and we simply held that the statute did not constitute multiple offenses “where it is not
shown that the defendant acquired the property by separate acts of possession or knew that it
came from more than one victim or more than one act of stealing.” Brown, 137 Idaho at 537, 50
P.3d at 1032. In Brown, the State failed to produce evidence that the defendant had acquired the
stolen property at different times or that the defendant knew they came from different thefts or
victims.
11
D. Gillespie’s Sentences Were Not Excessive
For Gillespie’s probation violations in Docket No. 39426, the district court revoked
probation, entered a judgment of conviction, and imposed a ten-year sentence with two years
determinate. On the two convictions in Docket No. 39427, the district court imposed ten-year
sentences with three years determinate, with the three sentences to run consecutively, resulting in
an aggregate period of incarceration of thirty years, with eight years determinate.
An appellate review of a sentence is based upon an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender, and the protection of the public
interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When
reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver,
144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
Gillespie argues that his volatile childhood and other factors mitigate his crimes and
establish that his sentences are excessive. However, the record shows that in Docket No. 39426,
Gillespie received lenity, being granted a withheld judgment and probation on his first conviction
for possession of sexually exploitative material for other than a commercial purpose. He then
repeatedly and persistently violated terms of probation, mostly for sexual misconduct and
accessing the Internet without permission. His probation officer did not seek revocation of
probation until the third set of violations. A search at this time found Gillespie again in
possession of images of minors engaged in sexual conduct, which gave rise to his second
conviction. A polygraph conducted as part of a psychosexual evaluation for sentencing purposes
indicated that Gillespie was not truthful in denying that he had committed other sex crimes. The
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psychosexual evaluator concluded that Gillespie was not amenable to community-based
treatment and recommended that he be placed in a secure facility for sex offender treatment. On
this record, and considering particularly Gillespie’s poor performance while on probation for his
first sexual exploitation offense, we cannot say that his sentences are excessive.
III.
CONCLUSION
Gillespie’s judgments of conviction and sentences are affirmed.
Judge LANSING and Judge MELANSON CONCUR.
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