State v. Gillespie, s. 39426

CourtCourt of Appeals of Idaho
Writing for the CourtGRATTON, Judge.
Citation316 P.3d 126,155 Idaho 714
Parties STATE of Idaho, Plaintiff–Respondent, v. Chase Dalton GILLESPIE, Defendant–Appellant.
Decision Date30 December 2013
Docket NumberNos. 39426,39427.,s. 39426

155 Idaho 714
316 P.3d 126

STATE of Idaho, Plaintiff–Respondent,
v.
Chase Dalton GILLESPIE, Defendant–Appellant.

Nos. 39426
39427.

Court of Appeals of Idaho.

Dec. 30, 2013.
Review Denied Aug. 5, 2014.


316 P.3d 127

Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy Appellate Public Defender, Boise, for appellant. Sarah E. Tompkins argued.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent. Russell J. Spencer argued.

GRATTON, Judge.

155 Idaho 715

In these cases consolidated for appeal, the defendant challenges judgments of conviction and sentences for multiple counts of possession of sexually exploitative material for other than a commercial purpose. The principal issues presented are whether the district court erred in determining that the

155 Idaho 716
316 P.3d 128

defendant's possession of a thumb drive containing digital images of minors involved in sexual activity constituted possession of "electronically reproduced visual material," and whether the district court violated the constitutional prohibition against double jeopardy by imposing two sentences for what the defendant contends is a single act of possession.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In Docket No. 39426 in 2008, Chase Dalton Gillespie was charged with possession of sexually exploitative material for other than a commercial purpose in violation of former Idaho Code § 18–1507A.1 In 2009, pursuant to a binding plea agreement, Gillespie pled guilty and the district court withheld judgment and imposed five years of probation. On February 22, 2011, a report of probation violations was filed. Gillespie thereafter admitted he was in violation of terms of his probation by viewing pornography and by engaging in a sexual relationship with another probationer. The district court delayed disposition on the probation violations until resolution of additional criminal charges filed in Docket No. 39427.

In Docket No. 39427, on July 29, 2011, Gillespie was charged with two additional counts of possession of sexually exploitative material for other than a commercial purpose. Count One charged that Gillespie possessed on a thumb drive a digital image of a minor child engaging in sexual conduct, and Count Two charged that he possessed a digital video of a minor child engaging in sexual conduct. On the same day the information was filed, Gillespie filed a written waiver of his right to a jury trial and the parties also filed a document entitled "Stipulated Facts." As clarified with the district court before trial, the stipulation stated that review of Gillespie's computer, computer materials, and Internet accounts showed that the seized thumb drive was the only item containing illegal videos and images of minors involved in explicit sexual conduct and that it held multiple videos and images. The State agreed to prosecute only the two filed charges. In addition, the parties stipulated to the existence of most of the elements of the charges, reserving certain limited issues for the court's resolution. Two of those reserved issues are pertinent to this appeal. First, the court was asked to determine whether the digital videos on the thumb drive constitute "electronically reproduced visual material" under the definition in former I.C. § 18–1507(2)(k) (2006).2 Second, the parties asked the district court to determine "whether possessing each image or video may be prosecuted individually." A brief court trial was conducted that same day.

In its subsequent findings of fact and conclusions of law, the district court determined that the digital photos and videos on the thumb drive fell within the definition of electronically reproduced visual material under former I.C. § 18–1507(2)(k). The district court held that Gillespie had waived the double jeopardy issue because he did not challenge the information's allegations of two separate offenses prior to trial as required by Idaho Criminal Rule 12(b)(2). Alternatively, the court held that multiple charges were not violative of the Double Jeopardy Clause because there were different child victims involved. The district court then found Gillespie guilty on both charges.

In Docket No. 39426, the district court revoked probation, entered a judgment of conviction, and imposed a unified sentence of ten years, with two years determinate. For the two convictions in Docket No. 39427, the district court imposed unified sentences of ten years, with three years determinate, with all three sentences to run consecutively, resulting in an aggregate sentence of thirty years, with eight years determinate. Gillespie appeals.

II.

ANALYSIS

Gillespie claims that the district court erred in determining that the digital images

155 Idaho 717
316 P.3d 129

he possessed constituted "electronically reproduced visual material" under former I.C. § 18–1507(2)(k). Gillespie further claims that the district court erred in holding that his challenge to multiple possession punishment was waived. In addition, Gillespie contends that the district court erred in finding that, under the circumstances, he could be charged and sentenced for two counts of possession and that by having done so, his Fifth Amendment guarantee against double jeopardy was violated. Finally, Gillespie asserts that the district court abused its discretion by imposing excessive sentences.

A. The Digital Images Constituted "Electronically Reproduced Visual Material "

The initial issue presented is one of statutory construction. Gillespie argues that in Docket No. 39427, the district court erred when it determined that the digital images on the thumb drive fell within the definition of "electronically reproduced visual material" under former I.C. § 18–1507(2)(k).

This Court exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct.App.2003). Where the language of a statute is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999) ; State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct.App.2000). The words must be given their plain, usual, and ordinary meaning, and the statute must be construed as a whole. State v. Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001).

At the time of Gillespie's possession of the thumb drive, on or about February 16, 2011, the crime of possession of sexually exploitative material for other than a commercial purpose was defined in I.C. § 18–1507A(2) :

Every person who knowingly and willfully has in his possession any sexually exploitative material as defined in section 18–1507, Idaho Code, for other than a commercial purpose, is guilty of a felony and shall be punished by imprisonment in the state prison for a period not to exceed ten (10) years and by a fine not to exceed ten thousand dollars ($10,000).

"Sexually exploitative material" was then defined in former I.C. § 18–1507(2)(k) as follows: " ‘Sexually exploitative material’ means any photograph, motion picture, videotape, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material which depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct."

Gillespie posits that the images he possessed do not fall within this definition of sexually exploitative material because the thumb drive contained "digital image files" which, he contends, are not within the category of "electronically reproduced visual material." He predicates his interpretation of the statute solely upon an amendment to Section 18–1507 adopted in 2012, after Gillespie committed his offenses. Among other changes, the amendment added the word "digitally" to the definition of "sexually exploitative material," which now states:

"Sexually exploitative material" means any image, photograph, motion picture, video, print, negative, slide, or other mechanically, electronically, digitally or chemically produced or reproduced visual material which shows a child engaged in, participating in, observing, or being used for explicit sexual conduct, or showing a child engaging in, participating in, observing or being used for explicit sexual conduct, in actual time, including, but not limited to, video chat, webcam sessions or video calling.

Idaho Code § 18–1507(j) (2012) (emphasis added). Gillespie asserts that the definition in former I.C. § 18–1507(2)(k) must not have included digitally produced or reproduced images because the term "digitally" was added to the statute in 2012. He reasons that because the legislature saw fit to add specific reference to digital images by the 2012 amendment, the legislature was acknowledging that digital images were not encompassed within the prior definition. In support of this proposition, he cites State v. Leavitt, 153...

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4 practice notes
  • Peterka v. State, No. 20140425.
    • United States
    • United States State Supreme Court of North Dakota
    • June 11, 2015
    ...555–56 (Utah 2001) (finding possession of “any visual representation” of child pornography to be a separate offense); State v. Gillespie, 155 Idaho 714, 316 P.3d 126, 133 (Ct.App.2013) (explaining “our Supreme Court has not viewed the word ‘any’ as a collective term limiting prosecution to ......
  • State v. Gardner, Docket No. 47242
    • United States
    • United States State Supreme Court of Idaho
    • June 25, 2021
    ...Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), State v. Morton, 140 Idaho 235, 91 P.3d 1139 (2004), and State v. Gillespie, 155 Idaho 714, 316 P.3d 126 (Ct. App. 2013), Gardner claims his judgment of conviction must be vacated for insufficient evidence because of a single fact: inv......
  • State v. Gardner, Docket No. 47242
    • United States
    • United States State Supreme Court of Idaho
    • June 25, 2021
    ..., 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), State v. Morton , 140 Idaho 235, 91 P.3d 1139 (2004), and State v. Gillespie , 155 Idaho 714, 316 P.3d 126 (Ct. App. 2013), Gardner claims his judgment of conviction must be vacated for insufficient evidence because of a single fact: i......
  • State v. Gardner, Docket No. 47242
    • United States
    • United States State Supreme Court of Idaho
    • June 25, 2021
    ..., 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), State v. Morton , 140 Idaho 235, 91 P.3d 1139 (2004), and State v. Gillespie , 155 Idaho 714, 316 P.3d 126 (Ct. App. 2013), Gardner claims his judgment of conviction must be vacated for insufficient evidence because of a single fact: i......
4 cases
  • Peterka v. State, No. 20140425.
    • United States
    • United States State Supreme Court of North Dakota
    • June 11, 2015
    ...555–56 (Utah 2001) (finding possession of “any visual representation” of child pornography to be a separate offense); State v. Gillespie, 155 Idaho 714, 316 P.3d 126, 133 (Ct.App.2013) (explaining “our Supreme Court has not viewed the word ‘any’ as a collective term limiting prosecution to ......
  • State v. Gardner, Docket No. 47242
    • United States
    • United States State Supreme Court of Idaho
    • June 25, 2021
    ...Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), State v. Morton, 140 Idaho 235, 91 P.3d 1139 (2004), and State v. Gillespie, 155 Idaho 714, 316 P.3d 126 (Ct. App. 2013), Gardner claims his judgment of conviction must be vacated for insufficient evidence because of a single fact: inv......
  • State v. Gardner, Docket No. 47242
    • United States
    • United States State Supreme Court of Idaho
    • June 25, 2021
    ..., 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), State v. Morton , 140 Idaho 235, 91 P.3d 1139 (2004), and State v. Gillespie , 155 Idaho 714, 316 P.3d 126 (Ct. App. 2013), Gardner claims his judgment of conviction must be vacated for insufficient evidence because of a single fact: i......
  • State v. Gardner, Docket No. 47242
    • United States
    • United States State Supreme Court of Idaho
    • June 25, 2021
    ..., 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), State v. Morton , 140 Idaho 235, 91 P.3d 1139 (2004), and State v. Gillespie , 155 Idaho 714, 316 P.3d 126 (Ct. App. 2013), Gardner claims his judgment of conviction must be vacated for insufficient evidence because of a single fact: i......

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