IN THE SUPREME COURT OF IOWA No. 06 / 05-2028
Filed February 23, 2007
STATE OF IOWA,
Appellant,
vs.
RANDALL FREDRICK MUHLENBRUCH,
Appellee.
Appeal from the Iowa District Court for Marshall County, Kim M.
Riley, District Associate Judge.
The State appeals the ruling of the district court holding that a
criminal defendant may be charged under Iowa Code section 728.12(3) with
only one offense for possession of a computer that contains multiple
pornographic images. AFFIRMED.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant
Attorney General, Jennifer Miller, County Attorney, and Michael Salvner,
Assistant County Attorney, for appellant.
Barry S. Kaplan and Melissa A. Nine of Kaplan & Frese, LLP,
Marshalltown, for appellee. 2
APPEL, Justice.
In this appeal, we must decide if Iowa Code section 728.12(3) (2003)
creates a single criminal offense for possession of a computer that contains
pornographic depictions of minors, regardless of the number of images, or
whether the statute establishes a separate offense for each pornographic
image stored in or accessible on a single computer. We join the appellate
courts in Kansas and Arizona in holding that, under a statute that prohibits
possession of a computer or other medium that depicts pornographic
images, only one offense arises from possession of one computer or
medium, regardless of the number of images stored on the system.
I. Background Facts and Proceedings.
In this case, defendant Randall Muhlenbruch possessed a computer
containing pornographic images of minors. The images were discovered by
the defendant’s wife, who asked a friend to copy the images onto a
computer disk and turn them over to the police for investigation. A
subsequent examination of the defendant’s computer led to the recovery of
348 pornographic images of sexual activity by minors.
The State charged Muhlenbruch with ten counts of sexual
exploitation of a minor under Iowa Code section 728.12(3). Iowa Code section 728.12(3) states:
It shall be unlawful to knowingly purchase or possess a negative, slide, book, magazine, computer, computer disk, or other print or visual medium, or an electronic . . . storage system . . . which depicts a minor . . . engaging in a prohibited sexual act or the simulation of a prohibited sexual act.
The information filed by the State reveals that each count was based on the
downloading of prohibited sexual images onto his computer on different
days. The images also involved different minors. 3
Muhlenbruch filed a motion to adjudicate law points, arguing that
because he possessed only one computer containing depictions of
prohibited sexual acts, he could be charged with only one count under
section 728.12(3). The district court, in a thorough opinion, granted the
motion. The district court noted that “the plain reading of the Iowa statute
under which Defendant is charged fails to criminalize each image of child
pornography on a computer or computer disk.”
The State appeals, contending that the district court erred in
concluding that Muhlenbruch could be charged under Iowa Code section
728.12(3) with only one offense for possession of a computer where the
computer contained multiple pornographic images.
II. Standard of Review.
This court reviews a trial court’s ruling on a motion to adjudicate law
points for correction of legal error. State v. Iowa Dist. Ct., 616 N.W.2d 575,
577-78 (Iowa 2000). The appropriateness of the district court’s action turns
on the correctness of its interpretation of the relevant statutes, which are
reviewable for correction of errors at law as well. Id.
III. Discussion.
Over one hundred years ago, this court stated:
Criminal statutes are . . . inelastic, and cannot by construction be made to embrace cases plainly without the letter though within the reason and policy of the law.
State v. Lovell, 23 Iowa 304, 304 (1867). This century old principle controls
the outcome in this case.
Iowa Code section 728.12(3) prohibits the “possession” of a
“computer” or “other print or visual medium” that depicts a minor engaged
in prohibited sexual acts. The statute plainly does not define the crime as
possession of a pornographic image involving a minor. It defines the crime 4
as possession of a “computer” or “other print or visual medium” that
contains such an image.
It is undisputed that Muhlenbruch possessed only one computer and,
as a result, it would seem to follow that he could be charged only with one
crime. The State seeks to avoid this result by asserting that the phrase
“other print or visual medium” should be expansively defined to include
individual pornographic images. Iowa Code section 728.12(3) does not
define the term “medium.” In the absence of a legislative definition, words
in a statute are given their ordinary meaning. State v. White, 545 N.W.2d
552, 555 (Iowa 1996). A medium is ordinarily the instrumentality of
expression rather than the expression itself. Webster’s Third International
Dictionary 1403 (unabr. ed. 2002). In the field of computer science, a
medium is an “object or device . . . on which data is stored.” The American
Heritage Dictionary of the English Language (4th ed. 2000). Using these
ordinary definitions, it is the possession of the computer or other
instrumentality that contains certain images, and not the possession of
each individual pornographic image, that defines the crime.
The State, however, cites State v. Kidd, 562 N.W.2d 764 (Iowa 1997),
in support of its position. In Kidd, the defendant possessed three sawed-off shotguns that were bundled together in a sleeping bag. The State charged
the defendant with three separate crimes under Iowa Code section 724.3, a
statute which prohibited knowing “possess[ion] of an offensive weapon.” On
appeal we upheld the multiple convictions. Among other things, this court
noted that “an” connotes a singular item in contrast to the word “any,”
which may be plural. Id. at 765-66.
When read in context, Kidd supports the view that Muhlenbruch may
be charged only with one crime for possession of one computer containing
pornographic materials. In Kidd, the unit of prosecution was “possess[ion] 5
of an offensive weapon.” Here, the unit of prosecution is “possess[ion] . . . of
a computer . . . or other visual or print medium.” If Muhlenbruch had three
computers, bundled together, which each contained pornographic material,
he could have been charged with three separate criminal offenses, as was
the defendant in Kidd. In this case, however, it is undisputed that
Muhlenbruch possessed only one computer.
We note that other appellate courts have reached the same result in
interpreting similar statutes that prohibit possession of computers or other
visual mediums. For instance, the Kansas Court of Appeals has held that
under a Kansas statute that prohibited “possessing” of “other printed or
visual medium” in which a visual depiction of a child engaging in sexually
explicit conduct is shown or heard, a criminal defendant may be charged
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IN THE SUPREME COURT OF IOWA No. 06 / 05-2028
Filed February 23, 2007
STATE OF IOWA,
Appellant,
vs.
RANDALL FREDRICK MUHLENBRUCH,
Appellee.
Appeal from the Iowa District Court for Marshall County, Kim M.
Riley, District Associate Judge.
The State appeals the ruling of the district court holding that a
criminal defendant may be charged under Iowa Code section 728.12(3) with
only one offense for possession of a computer that contains multiple
pornographic images. AFFIRMED.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant
Attorney General, Jennifer Miller, County Attorney, and Michael Salvner,
Assistant County Attorney, for appellant.
Barry S. Kaplan and Melissa A. Nine of Kaplan & Frese, LLP,
Marshalltown, for appellee. 2
APPEL, Justice.
In this appeal, we must decide if Iowa Code section 728.12(3) (2003)
creates a single criminal offense for possession of a computer that contains
pornographic depictions of minors, regardless of the number of images, or
whether the statute establishes a separate offense for each pornographic
image stored in or accessible on a single computer. We join the appellate
courts in Kansas and Arizona in holding that, under a statute that prohibits
possession of a computer or other medium that depicts pornographic
images, only one offense arises from possession of one computer or
medium, regardless of the number of images stored on the system.
I. Background Facts and Proceedings.
In this case, defendant Randall Muhlenbruch possessed a computer
containing pornographic images of minors. The images were discovered by
the defendant’s wife, who asked a friend to copy the images onto a
computer disk and turn them over to the police for investigation. A
subsequent examination of the defendant’s computer led to the recovery of
348 pornographic images of sexual activity by minors.
The State charged Muhlenbruch with ten counts of sexual
exploitation of a minor under Iowa Code section 728.12(3). Iowa Code section 728.12(3) states:
It shall be unlawful to knowingly purchase or possess a negative, slide, book, magazine, computer, computer disk, or other print or visual medium, or an electronic . . . storage system . . . which depicts a minor . . . engaging in a prohibited sexual act or the simulation of a prohibited sexual act.
The information filed by the State reveals that each count was based on the
downloading of prohibited sexual images onto his computer on different
days. The images also involved different minors. 3
Muhlenbruch filed a motion to adjudicate law points, arguing that
because he possessed only one computer containing depictions of
prohibited sexual acts, he could be charged with only one count under
section 728.12(3). The district court, in a thorough opinion, granted the
motion. The district court noted that “the plain reading of the Iowa statute
under which Defendant is charged fails to criminalize each image of child
pornography on a computer or computer disk.”
The State appeals, contending that the district court erred in
concluding that Muhlenbruch could be charged under Iowa Code section
728.12(3) with only one offense for possession of a computer where the
computer contained multiple pornographic images.
II. Standard of Review.
This court reviews a trial court’s ruling on a motion to adjudicate law
points for correction of legal error. State v. Iowa Dist. Ct., 616 N.W.2d 575,
577-78 (Iowa 2000). The appropriateness of the district court’s action turns
on the correctness of its interpretation of the relevant statutes, which are
reviewable for correction of errors at law as well. Id.
III. Discussion.
Over one hundred years ago, this court stated:
Criminal statutes are . . . inelastic, and cannot by construction be made to embrace cases plainly without the letter though within the reason and policy of the law.
State v. Lovell, 23 Iowa 304, 304 (1867). This century old principle controls
the outcome in this case.
Iowa Code section 728.12(3) prohibits the “possession” of a
“computer” or “other print or visual medium” that depicts a minor engaged
in prohibited sexual acts. The statute plainly does not define the crime as
possession of a pornographic image involving a minor. It defines the crime 4
as possession of a “computer” or “other print or visual medium” that
contains such an image.
It is undisputed that Muhlenbruch possessed only one computer and,
as a result, it would seem to follow that he could be charged only with one
crime. The State seeks to avoid this result by asserting that the phrase
“other print or visual medium” should be expansively defined to include
individual pornographic images. Iowa Code section 728.12(3) does not
define the term “medium.” In the absence of a legislative definition, words
in a statute are given their ordinary meaning. State v. White, 545 N.W.2d
552, 555 (Iowa 1996). A medium is ordinarily the instrumentality of
expression rather than the expression itself. Webster’s Third International
Dictionary 1403 (unabr. ed. 2002). In the field of computer science, a
medium is an “object or device . . . on which data is stored.” The American
Heritage Dictionary of the English Language (4th ed. 2000). Using these
ordinary definitions, it is the possession of the computer or other
instrumentality that contains certain images, and not the possession of
each individual pornographic image, that defines the crime.
The State, however, cites State v. Kidd, 562 N.W.2d 764 (Iowa 1997),
in support of its position. In Kidd, the defendant possessed three sawed-off shotguns that were bundled together in a sleeping bag. The State charged
the defendant with three separate crimes under Iowa Code section 724.3, a
statute which prohibited knowing “possess[ion] of an offensive weapon.” On
appeal we upheld the multiple convictions. Among other things, this court
noted that “an” connotes a singular item in contrast to the word “any,”
which may be plural. Id. at 765-66.
When read in context, Kidd supports the view that Muhlenbruch may
be charged only with one crime for possession of one computer containing
pornographic materials. In Kidd, the unit of prosecution was “possess[ion] 5
of an offensive weapon.” Here, the unit of prosecution is “possess[ion] . . . of
a computer . . . or other visual or print medium.” If Muhlenbruch had three
computers, bundled together, which each contained pornographic material,
he could have been charged with three separate criminal offenses, as was
the defendant in Kidd. In this case, however, it is undisputed that
Muhlenbruch possessed only one computer.
We note that other appellate courts have reached the same result in
interpreting similar statutes that prohibit possession of computers or other
visual mediums. For instance, the Kansas Court of Appeals has held that
under a Kansas statute that prohibited “possessing” of “other printed or
visual medium” in which a visual depiction of a child engaging in sexually
explicit conduct is shown or heard, a criminal defendant may be charged
with only one offense for possession of each medium, regardless of the
number of images contained. State v. Donham, 24 P.3d 750, 755 (Kan. Ct.
App. 2001). In so holding, the Kansas court noted that “[i]f the legislature
had intended to criminalize possession of each sexually explicit image of a
child contained on a floppy disk, the legislature would have included
language such as possession of any image stored or retrieved from a floppy
disk as a means of violating the statute.” Id. (emphasis added).
Similarly, an Arizona appellate court has held that a defendant
possessing a single roll of film with multiple pornographic images may only
be charged with one offense under a statute that prohibited “possessing . . .
any visual or print medium in which minors are engaged in sexual
conduct.” State v. Valdez, 894 P.2d 708, 711-13 (Ariz. Ct. App. 1994).
Among other things, the Arizona court contrasted the state law provision
with 18 U.S.C. §§ 2251 and 2252, which Congress amended in 1984 to
delete references to “visual or print medium” and substitute the phrase
“visual depiction.” Id. at 713 n.4. 6
The State cites a number of cases from other jurisdictions in support
of its position. These cases, however, are plainly distinguishable. For
example, the Wisconsin Court of Appeals upheld a defendant’s conviction
on twenty-eight counts of possession of child pornography based on images
found on two computer disks where the statute prohibited possession of a
“pictorial representation.” State v. Mutaler, 632 N.W.2d 89, 94 (Wis. Ct.
App. 2001). The Minnesota Court of Appeals has also found that a statute
prohibiting possession of, among other things, “a pornographic work”
supported multiple convictions for possession of illicit images in a single
medium. State v. Bertsch, 689 N.W.2d 276, 280-81 (Minn. Ct. App. 2004),
aff’d in part, rev’d in part on other grounds, 707 N.W.2d 660 (Minn. 2006).
The Iowa statute, however, does not prohibit possession of a “pictorial
representation” or “a pornographic work,” but only possession of a
computer or other visual medium that contains a pornographic image.
While we find that the meaning of the statutory language is clear,
even if the State could convince us that the statute is ambiguous as
suggested at oral argument, it would not change the result in this case.
Like nearly all state supreme courts, this court has repeatedly held that
penal statutes are to be interpreted strictly with doubts therein resolved in favor of the accused. State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981);
State v. Lawr, 263 N.W.2d 747, 750 (Iowa 1978); State v. Conley, 222
N.W.2d 501, 502 (Iowa 1974). Sometimes referred to as the rule of lenity,
this court has recognized that strict construction of criminal statutes
should be applied in cases where there is doubt regarding the allowable unit
of prosecution. Kidd, 562 N.W.2d at 765. As a result, even if Iowa Code
section 728.12(3) were ambiguous on the question of the allowable unit of
prosecution, our settled law requires that any doubt be resolved in favor of
Muhlenbruch. 7
The State zealously asserts policy reasons for multi-count criminal
liability under the facts of this case. For example, the State notes that each
child photographed in a sexually explicit manner is a victim and that
Muhlenbruch should be punished accordingly. Our task, however, is to
enforce the statute as written. Any recasting of the scope of criminal
liability under Iowa Code section 728.12(3) is the province of the legislature,
not this court. Lovell, 23 Iowa at 304.
Muhlenbruch also asserts that multiple prosecutions under Iowa
Code section 728.12(3) for possession of a single computer violates the
Double Jeopardy and Cruel and Unusual Punishment Clauses of the United
States Constitution. The record reveals that the motion to adjudicate law
points was based solely on “the wording of the statute” and, as a result, the
constitutional issues have not been preserved. Meier v. Senecaut, 641
N.W.2d 532, 537-38 (Iowa 2002). In any event, our resolution of the case
eliminates the need to address them.
IV. CONCLUSION.
The district court correctly concluded that under the facts presented
Muhlenbruch could be charged with only one offense under Iowa Code
section 728.12(3). AFFIRMED.