Missouri Supreme Court reverses CP convictions due to ambiguous statute

In State v. Liberty, 2012 Mo. LEXIS 104, the Missouri Supreme Court reversed seven of eight child pornography possession charges because the statute was ambiguous as to whether it allowed a single or multiple prosecutions for possession of multiple images. The court, however, denied other arguments made by the defendant.

The defendant had posted a description of physical contact with a 7-year-old child to a pedophile website, which was used as the basis for his conviction of promoting child pornography. On appeal, he argued that it did not describe "sexual conduct" as required by the statute, but instead "discussed 'riding with some children in an inner- tube.'" The court disagreed. The defendant also made a non-"sexual conduct" argument with regard to images of child pornography that had been used as evidence, but the court also struck down that argument.

Successfully argued, however, was the defendant's double jeopardy argument. He had been convicted of eight counts of possession of child pornography. The statute made possession unlawful if:

knowing of its content and character, such person possesses any obscene material that has a child as one of its participants or portrays what appears to be a child as an observer or participant of sexual conduct.

The Missouri Supreme Court held that the use of the word "any" allows the statute to be reasonably interpreted  "to permit either a single prosecution or multiple prosecutions for a single incidence of possession of eight still photographs of child pornography." Because the statute is ambiguous, the court applied the rule of lenity and reversed seven of the eight convictions. The state is not prevented from retrying the defendant if they believe they have "evidence demonstrating separate offenses, as, for example, possession of the photographs by Mr. Liberty at different times or from different sources."

The statute has since been revised, and "the legislature [has] made clear that possession of 20 or more proscribed images constitutes a single unit of prosecution."