X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Rickman, Judge.This issue presented in this case is whether Georgia’s statute governing the possession and control of child pornography, OCGA § 16-12-100 (b) (8), allows the State to charge a criminal defendant for each separate and distinct image he or she is alleged to have possessed, or whether the statute instead criminalizes a course of conduct, such that for any given search, the defendant may be charged only a single count of possession regardless of the number of images involved. We conclude that the plain language of the statute, when read in its entirety, allows for a charge and conviction on each and every image possessed and, consequently, reverse the contrary ruling made by the trial court.   OCGA § 16-12-100 (b) (8) provides that, “[i]t is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.” Keith Eric Williams was indicted on 48 separate counts of sexual exploitation of children in violation of OCGA § 16-12-100 (b) (8), after a search of several electronic devices located in his home allegedly uncovered numerous images of child pornography. Each count of the indictment described an image depicting a minor engaged in specific sexually explicit conduct “separate and distinct from any other count alleged.”Williams filed a demurrer seeking to dismiss counts two through 48 of the indictment, arguing that they were multiplicitous of the first count. The trial court agreed, concluding that the legislature’s use of the phrase “any material” in OCGA § 16-12-100 (b) (8) meant that a “simultaneous possession of multiple pornographic images, in a single location, on one specific day”[1] was intended to constitute a single act of possession. We disagree.   “Multiplicity is the charging of the same crime in several counts of a charging document.” (Citation and punctuation omitted.) Chancey v. State, 256 Ga. 415, 433 (7) (349 SE2d 717) (1986). Because “it is the task of the legislature, not the courts, to define crimes and set the range of sentences,” the determination of whether a course of conduct can result in multiple violations of the same statute is a matter of statutory interpretation. (Citation and punctuation omitted.) Rooney v. State, 287 Ga. 1, 6 (3) (690 SE2d 804) (2010); see Sanabria v. U. S., 437 U. S. 54, 69 II (B) (98 SCt 2170, 57 LEd2d 43) (1978) (noting that “[f]ew, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses”). Thus, when faced with a multiplicity challenge, we are required to ascertain “the ‘unit of prosecution,’ or the precise act or conduct that is being criminalized under the statute.” (Footnote omitted.) State v. Marlowe, 277 Ga. 383, 384 (589 SE2d 69) (2003); see Sanabria, 437 U. S. at 70 II (B) (“Whether a particular course of conduct involves one or more distinct ‘offenses’ under the statute depends on [the allowable unit of prosecution prescribed by the legislature].”) (footnote omitted).   We begin our analysis by recognizing that “[a] statute draws its meaning, of course, from its text.” (Citation and punctuation omitted.) Dubois v. Brantley, 297 Ga. 575, 579 (2) (775 SE2d 512) (2015). To that end,”[t]he common and customary usages of the words are important, but so is their context.” (Citations and punctuation omitted.) Id. “For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law–constitutional, statutory, and common law alike–that forms the legal background of the statutory provision in question.” (Citations and punctuation omitted.) Id.In its entirety, OCGA § 16-12-100 (b) criminalizes a broad range of conduct related to the sexual exploitation of children:(b) (1) It is unlawful for any person knowingly to employ, use, persuade, induce, entice, or coerce any minor to engage in or assist any other person to engage in any sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.

(2) It is unlawful for any parent, legal guardian, or person having custody or control of a minor knowingly to permit the minor to engage in or to assist any other person to engage in sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
June 20, 2024
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
April 16, 2024 - April 17, 2024
Chicago, IL

Join General Counsel and Senior Legal Leaders at the Premier Forum Designed For and by General Counsel from Fortune 1000 Companies


Learn More
April 16, 2024 - April 17, 2024
New York, NY

This conference brings together the industry's most influential & knowledgeable real estate executives from the net lease sector.


Learn More

Duane Morris LLP seeks a highly motivated junior associate to join its dynamic and growing Labor and Employment Class Action group in Chicag...


Apply Now ›

Duane Morris LLP seeks a full-time staff litigation attorney who has practiced between 3-5 years. Experience will include drafting motions, ...


Apply Now ›

Duane Morris LLP has an immediate opening for a senior level, highly motivated litigation associate to join its dynamic and growing Employme...


Apply Now ›
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›
04/08/2024
Daily Report

Daily Report 1/2 Page Professional Announcement 60 Days


View Announcement ›