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Double Jeopardy – Multiplicity: Child Pornography – Possession of Materials Stored on Disks

State v. James E. Multaler, 2002 WI 35, affirming 2001 WI App 14, 246 Wis. 2d 752, 632 N.W.2d 89
For Multaler: Jeffrey W. Jensen

Issue/Holding:

¶58. Applying these standards, we agree with the court of appeals that the 28 counts to which Multaler pled were not identical in fact. Although some of the downloaded image files contained multiple images, there were more than 28 separate image files. In a statement given after his arrest, Multaler admitted that he “began downloading . . . in the winter of 1998,” thus suggesting that he obtained the image files over a period of time. Even had he downloaded all the image files in a very short period of time, the fact that there were more than 28 separate files supports a conclusion that he made a new decision to obtain each one. Every time he downloaded a new file, he recommitted himself to additional criminal conduct. Each decision to download more child pornography represented a new volitional departure.

¶59. Having determined that the charges are different in fact, we turn to examine the legislature’s intent regarding the allowable unit of prosecution. Where charges are different in fact, we presume that the legislature intended multiple punishments.Anderson, 219 Wis. 2d at 751. This presumption is rebutted only by a clear indication of legislative intent to the contrary. Id. We use four factors to determine legislative intent in a multiplicity analysis: (1) statutory language; (2) legislative history and context; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishments for the conduct. Id…..

¶64. Nothing in the plain language of Wis. Stat. § 948.12 supports Multaler’s position that the legislature intended that a computer disk, rather than an image, is the intended unit of prosecution. Rather, the plain language of the statute provides that a possessor of “any photograph . . . or other pictorial reproduction” has violated the statute. Section 948.12 (emphasis added). 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. In short, the plain language of the statute leads us to the conclusion that for purposes of the second part of the multiplicity analysis each image Multaler possessed could be prosecuted separately.

Unit-of-prosecution result appears to turn on particular wording of statute, which prohibits “pictorial representation”; criminal penalty for “possession of a computer or other visual medium that contains a pornographic image” could lead to different result: State v. Muhlenbruch, 728 N.W. 212 (Iowa 2007).

 

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