Illinois App. Ct.: Defendant not guilty on two counts of CP possession for storing same image twice in the same medium

In State v. Sedelsky, No. 2-1-1042 (Ill. App. Ct. 2013), an Illinois appellate court held that the conviction for two counts of possession of child pornography cannot stand when the counts are "based on possession of an identical image stored in the same digital medium." The two images were saved under two different file names - yngbigirl1_0_50465483.jpg and yngbigirl1_0_50577108.jpg.

The appellate court found that the statute was "unclear" on this issue, requiring the court to "adopt a construction that favors defendant."

We agree with the logic in Carter and Liberty that possession of "any *** depiction by computer" is ambiguous as to whether a defendant may be charged separately with possessing a duplicate image in the same medium. Here, the facts 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 defendant 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 defendant's phone to his Mbuzzy account within a 4-minute timespan. The State did not present any evidence that defendant uploaded the image from his phone on separate occasions. It is not clear whether defendant 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 defendant's Mbuzzy account.