Craigslist, Email and Entrapment

After Edwin Gennette pled nolo contendere to “one count of unlawful use of a two-way communications device to facilitate a felony, in violation of § 934.215, Florida Statutes”, he appealed.  Gennette v. State, 2013 WL 4873490 Florida Court of Appeals 2013). He entered his plea after the trial judge denied his motion to dismiss the charge against him.  Gennette v. State, supra.

In entering his plea, Gennette

reserved his right to appeal the denial of the motion to dismiss. In his motion, Gennette argued that his conduct was the product of entrapment by the government, as defined by § 777.201, Florida Statutes, and that he was thus entitled to dismissal as a matter of law. 

Gennette v. State, supra.

The opinion explains that Gennette was charged as the result of a

a police operation intended to apprehend persons seeking illegal contact with minors. To this end, government agents published an on-line (Craigslist) advertisement for apparently legal activity with a fictitious adult or adults: `Sisters looking for a hot night -- w4m -- 19 (Pcola/Destin/PC).’ Testimony at the motion hearing confirmed that `w4m’ meant female looking for male, and the number 19 was to indicate the advertiser's age. The ad did not suggest illegal activity.

Gennette v. State, supra.

The Court of Appeals’ opinion also says that Gennette “responded to the advertisement late on a Thursday night”, as follows:

Appellant (11:24 p.m.): For real? nah, I don't believe it, LOL can U prove me wrong? cute guy here, Trey

`Amber’ (11:42 p.m.): Hi Trey! Let see how cute!!! My lil sis is in town visiting me for the summer. She is 14, you ok with that?

The next morning, [Gennette] continued his e-mail correspondence with the law enforcement agent posing as the 19–year–old `Amber’ as follows:

Appellant (10:21 a.m.): well I think she is a bit young, lol but depends on what you have in mind before i send my pic, are there any age requirements? lmao well the hell with it, ill send a pic anyway me and my pet possum.

`Amber’ (3:44 p.m.): Nice pic! Why in the world do you have a pet possum? There are no age requirements here.

Appellant (3:59 p.m.): Well thank you. . . . I found my lil-bear in my backyard when she was just a baby and ive raised her . . . she's so spoiled and thinks shes a people, lol. . . . now its your turn, lol.

Gennette v. State, supra.

The court then notes that the prosecution argued that Gennette’s response,

in the third e-mail message of the chain, defeated his claim of entrapment because he readily accepted the government's offer for sexual activity with a minor. To the contrary, [Gennette’s] e-mail shows only that he understood that a minor sister was visiting 19–year-old `Amber’ for the summer.

The agent's question of `you ok with that?’ and [his] response `she is a bit young . . . but depends on what you have in mind . . . are there any age requirements?’ was equivocal. Neither the agent's nor [Gennette’s] messages at this point contained any reference to sexual activity or performance with either `Amber’ or the minor. The early messages are simply too vague to constitute an offer and acceptance for criminal conduct.

Gennette v. State, supra.

The Court of Appeals then explains that in the eighth email message, the

agent sent [Gennette] a photograph of two young women posing as the fictional adult female and the minor. The agent's subsequent messages described the photo as showing a `fun’ weekend and plans to `get into some fun.’ [Gennette] described his weekend plans as watching a movie at home and caring for his pet opossum, who was recovering from veterinary surgery.

In the seventeenth message, [he] invited `u’ to his home where `we could figure out something to do if you like,’ to which the agent replied `we host only.’ [Gennette] then lamented that `u’ would be unable to meet his pet possum and inquired `if I was invited over, what would u have in mind?’ The agent repeated `fun,’ and inquired `what do you have in mind for us?’ While the agent used the plural terms `us’ and `we’ in her e-mails, [he] consistently responded with `u’ and `you,’ making his intentions ambiguous about whether he was still contemplating contact only with `Amber’ (the adult, as originally advertised) at this point in the conversation.

Gennette v. State, supra.

The court then noted that Gennette’s emails

at this point continued to discuss his pet opossum and contained no words or phrases that suggested any sexual activity with either `Amber’ or her `sister’ or in the `sister's’ presence. [His] only reference to physical features were to his pet's `female parts,’ because the recovering animal had recently been spayed. He sent a photo of the opossum to `Amber’ and suggested `a ride in my talking Mustang.’

When [Gennette] described his current activity as `just cleaning house,’ the agent again stated `we are looking to have fun tonight.’ The twenty-seventh e-mail in the exchange, sent by [Gennette] the Friday night after his response to the Craigslist advertisement, stated `maybe you can twist my arm, lol, I have some things to do tomorrow am, and since you cant come here . . . but I can be persuaded, lol.’ Four more e-mails were exchanged and both of the agent's messages inquired about what [he] wanted `to do with us.’ [His] responses remained ambivalent about any particular activity with either female.

Gennette v. State, supra.

Finally, according to the opinion, in the

thirty-second e-mail, the agent tried to clarify the offer, stating `do u realize that its me and my lil sis.’ [Gennette] responded: `im trying to keep things clean so to speak, lol until told otherwise, lmao but my car is fast, I can get somewhere pretty quick if needbe, just hope I don't get a ticket.’ The agent continued to urge [him]t to provide details and assured him that `we like it dirty.’ 

When [his] responses continued to lack sexual content pertaining to the `minor, the agent insisted she needed details because `I need to prep her.’ [Gennette’s] response `Prep her? what does that consist of?’ shows the agent's offer including the minor is finally beginning to dawn on him.

[His] vague response caused the agent to demand in the fortieth message: `r u scared to talk about it[?]’ Finally, in the forty-first message of the e-mail chain, [Gennette] acknowledges the `underage sister,’ asks `is that all consensual,’ and the agent assures him `everything is consensual.’ The messages continued into the next day (Saturday). 

The agent responded to [Gennette’s] continued use of the singular `you’ by prompting him not to `leave out’ the minor sister. From that point on, both the agent's and [Gennette’s] messages increased in suggestiveness, including suggestions of sexual activity including the minor.

Gennette v. State, supra.

The Court of Appeals then takes up the issue of entrapment, explaining that the

defense of entrapment has evolved under federal and Florida law as both crime and its detection have increased in sophistication. Beginning with the opinion in Sorrells v. U.S., 287 U.S. 435 (1932), the courts have consistently recognized a policy disapproving use of the government's police power to trick otherwise law-abiding citizens into violating the law. 

The power to use the `potentially dangerous tool’ of deception to prevent and detect crime is abused `when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’ Sorrells v. U.S. supra. 

As stated in Sherman v. U.S., 356U.S. 369 (1958), `[t]o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.’ . . .

Gennette v. State, supra.  For more on the defense of entrapment, check out Wikipedia’s entry on the topic.

 

The Court of Appeals noted that, in 1987, the Florida legislature adopted § 777.201, cited above, which states that a law enforcement officer

perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

Gennette v. State, supra (emphasis in the original).

It explained that to raise the defense of entrapment, the defendant must show that the agent “induced or encouraged him or her to the extent that the defendant's conduct was caused by the persuasive methods of the agent.”  Gennette v. State, supra.  It also explained that “inducement” in the context of the entrapment defense has been defined

as `persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.’ State v. Henderson, 955 So.2d 1193 (Florida Court of Appeals 2007). . . . `Encourages’ has not been further defined in an entrapment context by case law. Black's Law Dictionary defines `encourage’ in reference to criminal law, as `[t]o instigate; to incite to action; to embolden; to help.’ Black's Law Dictionary (9th edition 2009). Merriam–Webster defines `encourage’ as `to attempt to persuade: “urge” or “to spur on”.’

Gennette v. State, supra. 

The Court of Appeals then applied these principles to the facts in this case:

[T]he e-mail chain established, by a preponderance of evidence, that the government induced or encouraged [Gennette], and due to his lack of predisposition, caused him by methods of persuasion to commit the offenses charged. As previously noted, the parties stipulated that [he] was `a person other than one who is ready to commit’ the offense. Florida Statutes § 777.201(1).

Throughout the e-mail chain, it was the agent who took the lead. It was the law enforcement agent who initially suggested the presence of a minor, though without any specific proposition of sexual or other criminal involvement between Appellant and the minor. When [Gennette’s] communications wandered to innocuous matters, it was the agent who repeatedly steered the conversation back to sexual activity with a minor. 

The agent redirected [his] lack of focus on the minor by introducing and promoting the idea of participation by the minor in sexual activity with [Gennette]. It was the agent who coaxed and cajoled [him] for more details and challenged [his]  reluctance by impugning his nerve and suggesting he was `scared.’

The agent's persistent urging to overcome [Gennette’s] obvious reluctance to commit or even describe illegal activity in his e-mail messages easily fits the statutory definition of entrapment -- `induces or encourages’ and `as a direct result, causes’ [Gennette’s] eventual unlawful communications -- as set out in section 777.201. . . .

The definitions of `induces’ and `encourages,’ including `instigation,’ `persuasion,’ `harassment,’ `urging,’ `spurring on’” and `incitement to action’ all apply to the progression of the government's messages to [Gennette] in this case. [His] eventual sexually suggestive communications pertaining to the minor occurred only after the agent `cast her “fishing expedition” to bait, hook, net, and land him for’ the offenses charged. See Futch v. State, 596 So.2d 1150 (Florida Court of Appeals 1992).

Gennette v. State, supra. 

The Court of Appeals therefore held that

[b]ecause the preponderance of the evidence, as set out in the e-mail messages, showed the law enforcement officer's methods of persuasion induced or encouraged, and as a direct result caused [Gennette’s] unlawful communications, the legal definition of entrapment . . . was met and the motion to dismiss should have been granted. 

The law does not tolerate government action to provoke a law-abiding citizen to commit a crime in order to prosecute him or her with that crime.

Gennette v. State, supra. 

It therefore reversed Gennette’s conviction and sentence and remanded the case for the dismissal of the charges. Gennette v. State, supra. 

Murder, the Smartphone and Authenticating Evidence

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After Miles Toran was convicted of murder and attempted murder in violation of Indiana Code §§ 35-42-1-1 & 35-41-5-1(a) and sentenced “to sixty-five years for murder and thirty years for attempted murder, with the terms to be served concurrently for a total executed sentence of sixty-five years”, he appealed.  Toran v. State, 2013 WL 5303734 (Indiana Court of Appeals 2013).

This, according to the opinion, is how the case arose:

Sharon and Miles Toran were married in May 2008 and had two daughters together, born in September 2009 and March 2011. At some point, the couple separated and divorce proceedings were initiated. Toran, who was on active duty in the Air Force, lived in Virginia, while Sharon moved with her daughters back to Indianapolis. 

Toran returned to Indianapolis on Tuesday, April 17, 2012, as there was a custody hearing scheduled for later that week. While in town, he stayed with his parents and siblings. . . . Toran left the home on Walma Court around 8:00 that evening and was not seen by his family until sometime around 10:30, when he came home, took a shower, and then left again. . . .

Sharon was staying with the girls at her parents' home about fourteen minutes away on North Layman Avenue. Around 10:00 p.m., Jonathon Perry, Sharon's brother, waited on the front porch of the Layman residence. Sharon drove up in her van shortly thereafter with her two young daughters and parked along the street in front of the house. Perry retrieved the house key from her and went inside with his friend, while Sharon stayed outside to collect her daughters.

Shortly after entering the home and heading to the basement, Perry and his friend heard screaming. As Perry ran outside and toward the van, he heard his two-and-one-half-year-old niece yell, `daddy’, and then Sharon say, `don't do this, Miles.’ . . . Perry ran around the front of the van and toward the passenger side, where he encountered Toran, who was dressed in dark clothing, wearing glasses, and armed with a rifle.

Sharon and the girls were closed inside the van. Toran immediately turned his attention . . . toward Perry and shot Perry once with the rifle at close range. The shot hit Perry's upper leg near his waist and broke his femur, taking Perry directly to the ground. Toran then shot multiple times through the window of the van's sliding door, shooting Sharon three times while she was within arm's reach of the children, who were still confined in their car seats. . . .

Perry observed Toran run behind a house on the other side of the street and then quickly speed away southbound in a black Honda or Acura. Police received 911 calls at 10:18 p.m. Sharon was found dead at the scene, and Perry suffered serious injury to his leg, requiring at least a week-long hospital stay. At the scene, Perry informed police of the shooter's identity and described the getaway car and direction of travel.

Toran v. State, supra.

The opinion also notes that at around

3:00 a.m., Toran went to the Indianapolis City-County Building to make a statement in which he denied any involvement in the shooting. He told police he was separated from his wife and was in town for a custody hearing. He claimed he was nowhere near the Layman residence and had spent the evening at his parent's house and also visiting his sister at the hospital.

Cellphone records, however, indicated transmissions from his phone near the area of the shooting in the hour before and within minutes of the shooting. Video surveillance at the hospital also revealed that he was not at the hospital visiting his sister around the time of the shooting.

Toran v. State, supra.

Toran raised several arguments on appeal, only one of which is examined here.  Toran argued that the trial judge erred when he allowed the prosecution to introduce evidence

obtained from his smartphone. The evidence in question was four articles downloaded on the phone from the internet within about ten hours of the shootings. Each of the articles touched in some manner on the topic of murder.  Toran challenges the admissibility of this evidence on the basis of foundation and relevance.

Toran v. State, supra.  In a footnote, the court explains that

State's Exhibit 40 was an article setting forth the penalties for murder in New South Wales, Australia; 41 was an article suggesting that the evidence in the Scott Peterson murder trial did not support the conviction; 42 was the beginning of an article about writing murder mysteries; and 43 was an article entitled, `How to Show Murder Evidence to a Jury.’

Toran v. State, supra. Toran pointed out that “[t]he witness supporting the admission of these exhibits could not say if [he] had read these articles or even how long the articles appeared on the screen of the cell phone”.  Toran v. State, supra. 

In his appeal, Toran claimed the prosecution did not establish an adequate foundation to support admitting the articles and did not show they were relevant to issues in the case.  Toran v. State, supra.  As Wikipedia notes, in evidence law a “foundation is sufficient preliminary evidence of the authenticity and relevance for the admission of material evidence in the form of exhibits”. 

The Court of Appeals noted that Toran “seems to argue that a foundation for this evidence was not properly laid because the State could not establish whether [he] actually read the articles or even how long each appeared on the screen of his phone.” Toran v. State, supra.  It explained that Rule 901(a) of the Indiana Rules of Evidence

provides that `[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.’ `Absolute proof of authenticity is not required.’ Fry v. State, 885 N.E.2d 742 (Indiana Court of Appeals 2008). . . . When evidence establishes a reasonable probability that it is what it is claimed to be, a sufficient foundation has been laid. Fry v. State, supra. . . .

Toran v. State, supra.  For more on authentication, check out this prior post.

As to authentication in this case, the Court of Appeals noted that

[l]etters and words set down by electronic recording and other forms of data compilation are included within Rule 901. Hape v. State, 903 N.E.2d 977 (Indiana Court of Appeals 2009). . . Thus, in order to be admissible, electronic data recorded on a cellphone must be authenticated separately from the phone. Hape v. State, supra.

The authentication of data recordings obtained from a cellphone is the same as for those obtained from a personal computer and is satisfied by a showing that the images contained in the exhibits were recovered from the defendant's phone. . . .

Toran v. State, supra. 

Here, as the prosecution’s brief on appeal notes, at his trial

forensic investigator Brett Seach testified that he retrieved the data from [Toran’s] cellphone. . . . Officer Seach testified that he found four images and related metadata on the phone from murder related websites which had been accessed on the day [Toran] killed Sharon. . . . 

Brief of Appellee, Toran v. State, 2013 WL 3976707.

In its opinion, the Court of Appeals explained that Toran did not

dispute that the evidence in question was retrieved from his smartphone, as indicated by testimony at trial. Moreover, he did not challenge Detective Brett Search's [sic] technical capabilities or the procedures employed in retrieving and producing reproductions of the data/images found on the micro-SD card from the phone.

His entire argument is that the State could not establish that he was the one who searched for these articles on his phone or that he ever read them. This goes to the weight of the evidence, not foundation. The State laid a sufficient foundation for this evidence.

Toran v. State, supra. 

Toran also argued that the articles were not evidence that was relevant to the issues in the trial.  Toran v. State, supra.  The court explained that relevant evidence is

defined as `evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ Indiana Rule of Evidence 401.

To be relevant, the evidence at issue need only have `some tendency, however slight, to make the existence of a material fact more or less probable, or tend to shed any light upon the guilt or innocence of the accused.’ Smith v. State, 982 N.E.2d 393 (Indiana Court of Appeals 2013). . . . This is a `rather low threshold’. Smith v. State, supra.

Toran v. State, supra. 

The Court of Appeals rejected Toran’s argument on relevance:

The evidence in question indicates that Toran's smartphone was used to access webpages related to murder (that is, the penalty for murder and defending a murder charge) approximately ten hours before the shooting. This circumstantial evidence had at least some tendency to establish Toran's identity as the shooter and to show his intent and motive.

The appropriate weight to be given this evidence was properly left for the jury to decide. The trial court did not abuse its discretion by allowing the exhibits into evidence over Toran's objection.

Toran v. State, supra. 

As an aside, Toran also argued that his sentence was excessive because “there was nothing about the offense or the offender that justified the maximum sentence.”  Toran v. State, supra.  The Court of Appeals did not agree.  It noted, first, that he

did not receive the maximum sentence, as his sentences could well have been

ordered to be served consecutively. In fact, the State asked the trial court to impose eighty-five years (consecutive sentences of fifty-five and thirty years). The trial court rejected the State's request. . . .

Toran v. State, supra. 

The court also addressed the propriety, as such, of the sentence imposed on him:

Turning to the nature of the offenses, we observe that there are significant aggravating circumstances. In addition to the two direct victims in this case, Toran put his own young daughters in harm's way by firing multiple shots into the van in which they were restrained in close proximity to Sharon. Even the pleas from his two-and-one-half-year-old daughter did not deter Toran from making the child a witness to her mother's gruesome murder at the hands of her own father.

After shooting Sharon multiple times, Toran fled the scene without any apparent concern for his children, who remained in the shot-up van with their dying mother. Further, as found by the trial court, there appears to have been a high degree of planning that went into Sharon's murder.

Toran v. State, supra.  It therefore held that the sentence was appropriate.   Toran v. State, supra. 

This contemporaneous news story provides some more information about the crimes. 

Duplicate Images, Different File Names and Multiplicity

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As the Department of Justice’s U.S. Attorney’s Manual notes, multiplicity is “the charging of a single offense in several counts” of an indictment or other charging instrument.  For more on that, check out this prior post.

After a jury convicted him of thee counts of possession of child pornography in violation of 720 Illinois Compiled Statutes 5/11-20.1 and the trial judge sentenced him “to five years' imprisonment for each conviction, to run concurrently”, Bryan Sedelsky appealed. People v. Sedelsky, 2013 WL 5370287 (Illinois Appellate Court 2013). He argued “that one of his convictions should be vacated because two counts were based on possession of an identical image stored in the same digital medium.”  People v. Sedelsky, supra.  

The opinion notes that on June 30, 2010, the State of Illinois charged Sedelsky with three counts of child pornography:

Count I related to possession of a computer image entitled `yngbigirl1_o_50465483.jpg.’ Count II related to possession of a computer image entitled `yngbigirl1_0_50577108.jpg.’ Count III related to possession of a computer image entitled `yngbigirl1_0_50577109.jpg.’

People v. Sedelsky, supra.  

Sedelsky’s trial began on June 27, 2011. People v. Sedelsky, supra.  At the trial,

Blake DeWelde, a Round Lake Beach police officer, testified that on June 7, 2010, he arrived at [Sedelsky’s] apartment with other investigators to execute a search warrant. [Sedelsky] admitted he had accounts with a website known as Mbuzzy. [He] also turned over two cell phones that were admitted into evidence.

Two T–Mobile phone bills for [his] cell phone number were also retrieved and admitted into evidence. The bills show [Sedelsky’s] cell phone number but do not provide any details regarding uploaded images. [His] notebook, which contained information regarding his Mbuzzy accounts and numerous website addresses, was retrieved and admitted into evidence.

People v. Sedelsky, supra.  

Another witness was Ryan Nobrega, “vice president of products for Send Me, Inc., the parent company of Mbuzzy”. People v. Sedelsky, supra.  He testified that Mbuzzy is a

social network similar to Myspace or Facebook. The site allows users to create account profiles, upload photographs, and chat with other users. The site works heavily with mobile-phone users. Mbuzzy maintained records of user profiles as part of its ordinary course of business.

Nobrega identified Mbuzzy user profile information for the user names `yngbigirl1, cuteguy2010, and iluvynggirls.’ In December 2009, Nobrega had an employee named Wei Liu. Liu handled all content moderation issues and supported the help desk. In December 2009, Liu made a report to the National Center for Missing and Exploited Children (NCMEC) with Nobrega's knowledge and assistance.

Nobrega identified People's Exhibit Nos. 13, 14, and 15 as images reported to NCMEC. People's Exhibit No. 13 was an image with the file name `yngbigirl1_0_50465483.jpg’; People's Exhibit No. 14 was an image with the file name `yngbigirl1_0_50577108.jpg’; and People's Exhibit No. 15 was an image with the file name `yngbigirl1_0_50577109.jpg.’ Exhibit Nos. 13 and 14 contained the same image.

People v. Sedelsky, supra.  

The opinion also explains that the images were

stored on Mbuzzy's main server in California for username `yngbigirl1.’ Nobrega testified that [Sedelsky’s] T–Mobile phone number was connected to the Mbuzzy `yngbigirl1’ account that uploaded these images. Nobrega explained that an Mbuzzy customer could upload images from a computer, in which case an IP address would be seen. A person could also use a cell phone, in which case the image would be sent to Mbuzzy's computer as an e-mail with an attachment. Mbuzzy's computer would then pull the e-mail, process it, and attach the image to the user's account.

Using People's Exhibit No. 11, Nobrega identified that 25 media uploads were done from [Sedelsky’s] phone on December 16, 2009, within a 4–minute time span. People's Exhibit No. 4 showed 25 thumbnail images taken from yngbigirl 1's Mbuzzy account; 4 images were identical to Exhibit Nos. 13 and 14; 3 images were identical to Exhibit No. 15. People's Exhibit No. 4 was not published, because [Sedelsky] was not charged with possessing the other photos.

Exhibit No. 11 does not depict or otherwise identify what image was being sent to Mbuzzy; it merely states `media-upload’ and specifies that the upload address was [Sedelsky’s] cell phone number @tmomail.net. Nobrega was not asked whether these images were visible to any other Mbuzzy user; he merely testified that the images were stored in [Sedelsky’s] account.

People v. Sedelsky, supra.  

Michael Bruns, an investigator with the Illinois Attorney General's office, testified that in

early January 2010 he received a case from NCMEC involving [Sedelsky’s] Mbuzzy account. Bruns went to [his] home on June 7, 2010, and spoke to [Sedelsky] and his aunt, Jody, who also lived in the residence. He informed [Sedelsky] he was there, with other investigators, to execute a search warrant. [Sedelsky] signed a Miranda waiver form and agreed to speak to Bruns. [Sedelsky] admitted he had a T–Mobile cell phone number and used his cell phone to access the Internet, download pornography, download ringtones, play games, and send and receive text messages. [He] admitted he had three accounts with Mbuzzy: cuteguy2010, yngbigirl1, and iluvynggirls.

[Sedelsky] admitted he would search the Internet using search terms such as `lolita, jailbait, YO 15, YO 16’ to look for suspect images. Bruns had a copy of the image contained in People's Exhibit Nos. 13 and 14 and copies of multiple images that NCMEC had sent to him. These images were labeled People's Exhibit Nos. 3 and 4. Bruns showed these images to [Sedelsky], who signed and dated the images. [He] admitted he found these images on the Internet through his phone and uploaded them to his `yngbigirl 1’ Mbuzzy account. Bruns identified People's Exhibit Nos. 13, 14, and 15 as images found among the thumbnail images in Exhibit Nos. 3 and 4.

Bruns testified that [Sedelsky] told him Mbuzzy was an online storage space where he could store images because his phone did not have enough memory. [He] said he had deleted his Mbuzzy account and that it had been deleted for about six months, meaning he deleted the account in December 2009. He told Bruns he deleted it because the images he uploaded were `too young.’

People v. Sedelsky, supra.  

On appeal, Sedelsky argued, as noted above, that

one of his convictions must be vacated because the same image cannot sustain two convictions where that image was stored in the same digital medium, albeit under different file names. In support of his contention, [he] argues that two of the three images were identical and no images were recovered from his cell phone, but rather all three were recovered from his Mbuzzy account. 

People v. Sedelsky, supra.  

The Court of Appeals explained that “this case requires a review of the child pornography statute to determine whether separate offenses may be charged for simultaneous possession of multiple copies of the same image,” which meant it reviewed the conviction de novo, i.e., without deferring to the trial judge’s rulings.  People v. Sedelsky, supra.  It also noted that in construing a statute, it was required to “ascertain and give effect to the intent of the legislature”. People v. Sedelsky, supra. “The most reliable indicator of the legislative intent of a statute is its language, which, if plain and unambiguous, must be read without exception, limitation, or condition.”  People v. Sedelsky, supra.  The court also noted that “[c]riminal statutes must be strictly construed in the defendant's favor.”  People v. Sedelsky, supra.  

The court noted that 720 Illinois Compiled Statutes 5/11-20.1(a)(6) says someone commits the crime of possessing child pornography if he/she

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.

People v. Sedelsky, supra.  

As to how this provision should be construed, the court explained that in People v. Carter, 821 N.E.2d 233 (Illinois Supreme Court 2004), the court parsed the “allowable unit of prosecution” under a different statute, which made it “unlawful to possess `any firearm or any firearm ammunition.’”  People v. Sedelsky, supra.  The Carter court said

`any’ could mean either the singular or the plural, and when a criminal statute is capable of two or more constructions, it must adopt the construction that favors the accused. People v. Carter, supra. The court stated that `[w]hether the legislature intended for the simultaneous possession of weapons and ammunition to be the same offense or separate offenses requires us to determine the statute's “allowable unit of prosecution.” People v. Carter, supra.

Because the term `any’ in the statute failed to define it, the court held that the defendant's multiple convictions of simultaneously possessing two firearms and ammunition clips could not stand.  People v. Carter, supra.

People v. Sedelsky, supra.  

The Court of Appeals found that, based on the analysis in People v. Carter and other Illinois cases, Sedelsky’s “convictions may not stand under the one-act, one-crime rule when the statute is unclear whether a duplicate digital image stored in the same medium constitutes a separate offense.”  People v. Sedelsky, supra.  It explained that

once the legislature has defined the offense by its prescription of the `allowable unit of prosecution,’ it is this unit that governs whether a particular course of conduct involves one or more distinct `offenses’ under the statute. . . . Section 11–20.1(a)(6) of the [Illinois] Code provides that the relevant `allowable unit of prosecution’ is possession of `any . . . depiction by computer’ of a pornographic image of a child. 720 Illinois Compiled Statutes 5/11–20.1(a)(6). . . .

The statute defines a `depiction by computer as a “computer program or data that, after being processed by a computer either alone or in conjunction with one or more computer programs, results in a visual depiction on a computer monitor, screen, or display.”’ 720 Illinois Compiled Statutes  5/11–20.1(f)(5). The statute further defines `computer program’ and `data’ by referring to section 16D–2 of the Code (720 Illinois Compiled Statutes 5/16D–2(b), (c)).  720 Illinois Compiled Statutes 5/11–20.1(f)(6).

People v. Sedelsky, supra.  

An Illinois statute defines “data” as

representation of information, knowledge, facts, concepts or instructions, including program documentation, which is prepared in a formalized manner and is stored or processed in or transmitted by a computer. Data shall be considered property and may be in any form including but not limited to printouts, magnetic or optical storage media, punch cards or data stored internally in the memory of the computer.

720 Illinois Compiled Statutes 5/16D–2(c).

The statutes do not define “any”, but the People v. Carter court found that the word

had `categorical meanings of “any one of a kind,” “any kind,” or “any number.”’ People v. Carter, supra. Thus, `any’ could mean either the singular or the plural, and where a criminal statute is capable of more than one construction, the court must adopt the construction that favors the accused. . . .

The court concluded that the word `any’ in the statute was ambiguous as to whether the legislature intended for the simultaneous possession of weapons and ammunition to be the same offense or separate offenses. . . . Thus, it construed the statute in favor of the defendant and held that only one conviction of unlawful possession of weapons could be entered for [his] simultaneous possession of two firearms and firearm ammunition. 

People v. Sedelsky, supra.  

The court noted that

[l]ikewise, in this case, the term `any’ does not indicate whether the simultaneous possession of a duplicate `depiction by computer’ could constitute a separate offense. Thus, we must construe the statute in [Sedelsky’s] favor and hold that, on the limited facts present in this case, only one conviction of possessing child pornography can be entered for [his] possession of the same digital image stored in the same digital medium.

People v. Sedelsky, supra.  

It also noted that the holding in the Carter case “is ambiguous as to whether a defendant may be charged separately with possessing a duplicate image in the same medium.” People v. Sedelsky, supra.  And it pointed out that the facts in this case demonstrated

only that the image was saved twice to the same medium and at nearly the same point in time. We disagree with the State's assertion that [Sedelsky] separately uploaded the image from his cell phone. It is not clear from the facts whether the image was uploaded more than once, from more than one website, or from more than one source. The facts lead only to the inference that the image was saved twice, as the Mbuzzy records show only that 25 `media-upload’ files were sent from [his] phone to his Mbuzzy account within a 4–minute timespan.

The State did not present any evidence that [Sedelsky] uploaded the image from his phone on separate occasions. It is not clear whether [he] affirmatively uploaded the image twice and saved it twice, or merely saved the image twice. The State also did not present evidence that the image was saved anywhere other than in [his] Mbuzzy account.

People v. Sedelsky, supra.  

In its final comments, the court reiterates that “because the child pornography statute is unclear as to whether the same image stored in the same digital medium can constitute a separate offense, we must adopt a construction that favors [Sedelsky].”  People v. Sedelsky, supra. It therefore reversed his “conviction of count III and vacate the corresponding sentence.”  People v. Sedelsky, supra.