State of Missouri v. Larry Wright

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
STATE OF MISSOURI, ) No. ED102827
)
Appellant, ) Appeal from the Circuit Court of
) St. Louis County
vs. )
) Honorable Michael D. Burton
LARRY WRIGHT, )
)
Respondent. ) Filed: December 15, 2015
Introduction
The State of Missouri appeals the Circuit Court of St. Louis County’s order granting
Defendant’s motion to dismiss, finding that the State’s indictment for possession of child
pornography violated the statute of limitations provided in § 556.036.2(1).1 In one point, the
State argues that possession of child pornography is a continuing course of conduct and,
therefore, the statute of limitations does not begin to run until the defendant’s possession has
terminated, pursuant to § 556.036.4. We hold that the legislature, in criminalizing the possession
of child pornography, intended to prohibit a continuing course of conduct for purposes of
§ 556.036.4, and therefore we reverse the trial court’s decision and remand for further
proceedings.
1
All statutory references are to RSMo (Supp. 2009) unless otherwise indicated.
Factual Background
On July 8, 2010, Sergeant Kavanaugh of the St. Louis County Police Department was
engaged in an authorized internet undercover operation and identified an IP address offering to
distribute child pornography. Sergeant Kavanaugh was able to directly connect to the computer
and view publicly available files. He saw four files that he believed to be child pornography.
On July 22, 2010, AT&T Internet Services received a subpoena for information on the
user of the IP address identified by Sergeant Kavanaugh. AT&T responded to the subpoena on
August 5, 2010, and gave Larry Wright’s (Defendant) name and address, which were connected
to the IP address.
On August 20, 2010, Sergeant Kavanaugh viewed the files originally believed to be child
pornography and affirmed his suspicions. The court issued a search warrant on September 23,
2010, and the police recovered various items containing child pornography including computers,
thumb drives, CDs, and DVDs.
The State charged Defendant with possession of child pornography on August 28, 2013,
almost three years after the police seized the child pornography. Defendant was indicted on
October 30, 2013. Defendant subsequently filed a motion to dismiss, arguing that the charges
were filed in violation of the period provided in § 556.036.2(1), which provides a three-year
statute of limitations for felonies. The trial court sustained Defendant’s motion and dismissed
the case. The State appeals.
Standard of Review
The determination of which statute of limitations applies to a particular offense is a
question of law that we review de novo. State v. Horn, 38 4S.W.3d 338, 341 (Mo. App. E.D.
2012). “[T]hat determination requires us to engage in statutory interpretation, which is also a
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question of law that is reviewed de novo.” Id. When engaging in statutory interpretation, our
goal is “to ascertain the intent of the legislature and give effect to that intent as it is reflected in
the plain language of the statute.” Id.
Discussion
In its single point relied on, the State argues that the trial court erred in dismissing the
charges against Defendant. Specifically, the State contends that the statute of limitations did not
commence until September 23, 2010, when the police executed a search warrant and seized
thumb drives, CDs, DVDs, two laptops, three computer towers, personal papers, and cameras
from Defendant’s home. Defendant counters that the statute of limitations began to run on one
of three dates: July 8, 2010, when Sergeant Kavanaugh identified an IP address offering to
distribute child pornography; August 5, 2010, when the police learned that the IP address was
connected to Defendant; or August 20, 2010, when Sergeant Kavanaugh personally viewed the
files.
Section 556.036.2(1) provides that prosecution for any felony must be commenced within
three years of the crime. An exception to the general three-year statute of limitations is provided
in § 556.036.4, which reads:
An offense is committed either when every element occurs, or, if a legislative
purpose to prohibit a continuing course of conduct plainly appears, at the time
when the course of conduct or the person’s complicity therein is terminated.
Time starts to run on the day after the offense is committed.
In this case, the State charged Defendant with possession of child pornography. Under
§ 573.037.1, “[a] person commits the crime of possession of child pornography if such person
knowingly or recklessly possesses any child pornography of a minor under the age of eighteen or
obscene material portraying what appears to be a minor under the age of eighteen.” The State
argues that the plain language of the statute exhibits that “the law was not enacted to prohibit a
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singular act such as acquiring child pornography, but that the legislature intended to prohibit a
continuing course of conduct, the possession of child pornography.”
A. State ex rel. Greufe v. Davis does not control
Defendant relies on State ex rel. Greufe v. Davis, 407 S.W.3d 710 (Mo. App. W.D.
2013), for the proposition that § 556.036.2(1), not the exception for continuing courses of
conduct, applies to possession of child pornography. In Greufe, the defendant filed a motion to
dismiss the charge against him, one count of possession of child pornography, alleging that the
prosecution was barred by the statute of limitations in § 556.036.2(1). Id. at 711. The State
responded that the statute of limitations under § 556.037 RSMo (Supp. 2007) applies to the
crime of possession of child pornography. Section 556.037 dictates that “unlawful sexual
offenses involving a person eighteen years of age or under must be commenced within thirty
years after the victim reaches the age of eighteen.” Id. at 712. Therefore, the Court considered
“whether possession of child pornography constitutes an unlawful ‘sexual offense’ involving a
person eighteen years of age or under.” Id. The Court concluded that it does not. In so finding,
the Court noted that under the possession of child pornography statute, charges can be brought
when the image “appears to be a minor” because it is difficult to know the “true identity or date
of birth of the child in the photograph or movie.” Id. As a result, to adopt the statute of
limitations for “unlawful sexual offenses involving a person eighteen years of age or under”
would result in situations where once the minor depicted in the pornography reached 48-years-
old, “no one possessing that image could be prosecuted for the possession of that child
pornography.” Id. at 713. Having concluded that § 556.037 does not apply to the crime of
possession of child pornography, the Court granted a Writ of Prohibition enjoining the trial court
from proceeding with the defendant’s criminal trial except to dismiss the charge. Id. at 715.
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The present case differs from Greufe. As stated previously, the issue in Greufe was
whether a different statute of limitations for unlawful sexual offenses applies to possession of
child pornography; here, the issue is whether the general three-year statute of limitations for
felonies is tolled until the possession of child pornography terminates. Additionally, the present
case differs factually from Greufe because in that case, the police discovered child pornography
and seized the computers on the same day, June 9, 2008, but did not file charges until August 9,
2011—three years and two months after the images were recovered. In Gruefe, even if the
statute of limitations was tolled until the defendant’s possession terminated, the State was barred
by the statute of limitations from filing charges. In contrast, in Defendant’s case, the police
discovered the child pornography on July 8, 2010, but did not seize Defendant’s computers and
thumb drives until September 23, 2010. The State filed charges on August 28, 2013, which is
within the three-year statute of limitations if it is tolled until Defendant no longer possesses the
child pornography. Because Greufe is not instructive on the issue of whether the statute of
limitations is tolled in possession of child pornography cases, we must turn to the language of the
statute criminalizing the possession of child pornography. Horn, 38 4S.W.3d at 341.
B. Possession of child pornography is a continuing offense.
As noted above, § 556.036.4 provides that for continuing courses of conduct, the statute
of limitations begins to run when the conduct is terminated “if a legislative purpose to prohibit a
continuing course of conduct plainly appears.” (Emphasis added). No Missouri case has held
that possession of child pornography is a continuing course of conduct for purposes of
§ 556.036.4. Therefore, as directed by the statute and rules of statutory construction, we must
look to the language of § 573.037.1 to determine if the legislature, in criminalizing the
possession of child pornography, plainly intended to prohibit a continuing course of conduct.
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Under § 573.037.1, a person commits possession of child pornography if he knowingly or
recklessly “possesses any child pornography.” The statute does not define the term “possess”
and, in such instances, we may rely on the plain and ordinary meaning of the language used.
State ex rel. Richardson v. Green, 465 S.W.3d 60, 64 (Mo. banc 2015). “Possess” is defined as,
“To have in one’s actual control; to have possession of.” BLACK’S LAW DICTIONARY (10th ed.
2014) (emphasis added). “Possession” in turn, is defined as “the fact of having or holding
property in one’s power . . . [or] the continuing exercise of a claim to the exclusive use of a
material object.” Id. Notably, the legislature uses the term “possess” in the present tense, which
indicates an ongoing, continuing act into the present. It follows that, under the statute’s plain
terms, the conduct criminalized is the having in one’s control child pornography, which conduct
by definition is inherently ongoing and continual until such possession terminates. Accordingly,
we hold that the legislature’s plain intent was to criminalize possession of child pornography as a
continuing course of conduct.
Our conclusion finds further support in the principle that the legislature is presumed to
know the law when it acts. State v. Prince, 311 S.W.3d 327, 334 (Mo. App. W.D. 2010).
Crimes of possession are generally recognized in our criminal law as continuing offenses
because “[t]he possession is a continuing offense, lasting as long as the act of possession does.”
WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.1(e), n. 46 (2d ed. 2003). This is because
possession “[is] not terminated by a single act or circumstance but [is] committed as long as the
proscribed conduct continues.” Wright v. Superior Court, 936 P.2d 101, 103 (Cal. 1997).
Accordingly, Missouri and federal courts have held that various crimes of possession are
continuing offenses. See State v. Robinson, 710 S.W.2d 14, 16 (Mo. App. W.D. 1986)
(“possession of the knife . . . is a continuing charge”); State v. Sampson, 408 S.W.2d 84, 89
6
(“possession of the amphetamine was a continuing offense”); U.S. v. Zidell, 323 F.3d 412, 422
(6th Cir. 2003) (“possession with intent to distribute a controlled substance is a continuing
offense”); U.S. v. Fleischli, 305 F.3d 643, 658 (7th Cir. 2002) (“Possession of a firearm is a
continuing offense which ceases only when the possession stops.”). In the same way, possession
of child pornography is a continuing offense because it does not cease when the defendant
acquires the pornography, but rather when the possession terminates. Thus, by using the term
“possesses,” and absent any contrary intent, the legislature has indicated an intent to adhere to
the principle of criminal law that crimes of possession are continuing offenses.
Defendant argues that possession of child pornography is not a continuing offense, and
that such a reading of the statute is “too expansive” because it allows “law enforcement and the
prosecuting attorney to toll the statute of limitations indefinitely, or at least until the possession
was terminated . . . even after learning of the possession and having evidence of it.” Defendant
contends that tolling the statute of limitations until possession of child pornography terminates
contradicts the policy considerations supporting statutes of limitation, specifically the availability
of evidence. This argument is without merit, because generally when a defendant’s possession
terminates, the evidence is readily available. At that point, the statute of limitations begins to run
and one of the policy concerns of the statute of limitations—the availability of evidence—is then
triggered. We do not see how our holding does not comport with the policy concerns of the
statute of limitations, especially in Defendant’s circumstance, where possession terminated and
the police seized the evidence on the same day.
Defendant also argues that if possession of child pornography is a continuing course of
conduct, “a defendant would not be subject to multiple counts because of the protection of the
double jeopardy clause.” The Missouri Supreme Court has previously addressed this argument.
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As stated previously, the continuing course of conduct terminates when the defendant is no
longer in possession of the child pornography. The pornographic images in the defendant’s
possession until that point are charged and convicted as one count of possession of child
pornography. See State v. Liberty, 370 S.W.3d 537, 555 (Mo. banc 2012) (holding that multiple
convictions of possession of child pornography for multiple images possessed at the same time
violated double jeopardy). However, if the defendant were to come into possession of one or
more items of child pornography after that charge, a separate conviction would not be barred by
double jeopardy. See State v. Roggenbuck, 387 S.W.3d 376, 381 (Mo. banc 2012) (“[It] is
possible for a defendant to be convicted of multiple counts of possession of child pornography if
the [S]tate can show the defendant came into possession of the pornographic materials at
different times or from different sources.”).
Given the foregoing, we conclude that the possession of child pornography is a
continuing course of conduct for purposes of § 556.036.4. Therefore, in the present case, the
three-year statute of limitations did not begin to run until September 23, 2010, when law
enforcement seized Defendant’s computers, thumb drives, and other electronic storage
containing the child pornography, and Defendant’s possession terminated. The State charged
Defendant on August 28, 2013, before the three-year statute of limitations expired on September
23, 2013. Accordingly, the statute of limitations did not bar the State’s indictment. The trial
court erred in granting Defendant’s motion to dismiss.
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Conclusion
The trial court’s order sustaining Defendant’s motion to dismiss is reversed. We remand
for proceedings consistent with this opinion.
_______________________________
Philip M. Hess, Presiding Judge
Gary M. Gaertner, Jr., J. and
Angela T. Quigless, J. concur.
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