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