State of Missouri vs. Larry Wright

On July 8, 2010, Sergeant Kavanaugh of the St. Louis County Police Department was

engaged in an authorized internet undercover operation and identified an IP address offering to

distribute child pornography. Sergeant Kavanaugh was able to directly connect to the computer

and view publicly available files. He saw four files that he believed to be child pornography.

On July 22, 2010, AT&T Internet Services received a subpoena for information on the

user of the IP address identified by Sergeant Kavanaugh. AT&T responded to the subpoena on

August 5, 2010, and gave Larry Wright’s (Defendant) name and address, which were connected

to the IP address.

On August 20, 2010, Sergeant Kavanaugh viewed the files originally believed to be child

pornography and affirmed his suspicions. The court issued a search warrant on September 23,

2010, and the police recovered various items containing child pornography including computers,

thumb drives, CDs, and DVDs.

The State charged Defendant with possession of child pornography on August 28, 2013,

almost three years after the police seized the child pornography. Defendant was indicted on

October 30, 2013. Defendant subsequently filed a motion to dismiss, arguing that the charges

were filed in violation of the period provided in § 556.036.2(1), which provides a three-year

statute of limitations for felonies. The trial court sustained Defendant’s motion and dismissed

the case. The State appeals.

Standard of Review

The determination of which statute of limitations applies to a particular offense is a

question of law that we review de novo. State v. Horn, 38 4S.W.3d 338, 341 (Mo. App. E.D.

2012). “[T]hat determination requires us to engage in statutory interpretation, which is also a

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question of law that is reviewed de novo.” Id. When engaging in statutory interpretation, our

goal is “to ascertain the intent of the legislature and give effect to that intent as it is reflected in

the plain language of the statute.” Id.

Discussion

In its single point relied on, the State argues that the trial court erred in dismissing the

charges against Defendant. Specifically, the State contends that the statute of limitations did not

commence until September 23, 2010, when the police executed a search warrant and seized

thumb drives, CDs, DVDs, two laptops, three computer towers, personal papers, and cameras

from Defendant’s home. Defendant counters that the statute of limitations began to run on one

of three dates: July 8, 2010, when Sergeant Kavanaugh identified an IP address offering to

distribute child pornography; August 5, 2010, when the police learned that the IP address was

connected to Defendant; or August 20, 2010, when Sergeant Kavanaugh personally viewed the

files.

Section 556.036.2(1) provides that prosecution for any felony must be commenced within

three years of the crime. An exception to the general three-year statute of limitations is provided

in § 556.036.4, which reads:

An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the person’s complicity therein is terminated. Time starts to run on the day after the offense is committed.

In this case, the State charged Defendant with possession of child pornography. Under

§ 573.037.1, “[a] person commits the crime of possession of child pornography if such person

knowingly or recklessly possesses any child pornography of a minor under the age of eighteen or

obscene material portraying what appears to be a minor under the age of eighteen.” The State

argues that the plain language of the statute exhibits that “the law was not enacted to prohibit a

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singular act such as acquiring child pornography, but that the legislature intended to prohibit a

continuing course of conduct, the possession of child pornography.”

A. State ex rel. Greufe v. Davis does not control

Defendant relies on State ex rel. Greufe v. Davis, 407 S.W.3d 710 (Mo. App. W.D.

2013), for the proposition that § 556.036.2(1), not the exception for continuing courses of

conduct, applies to possession of child pornography. In Greufe, the defendant filed a motion to

dismiss the charge against him, one count of possession of child pornography, alleging that the

prosecution was barred by the statute of limitations in § 556.036.2(1). Id. at 711. The State

responded that the statute of limitations under § 556.037 RSMo (Supp. 2007) applies to the

crime of possession of child pornography. Section 556.037 dictates that “unlawful sexual

offenses involving a person eighteen years of age or under must be commenced within thirty

years after the victim reaches the age of eighteen.” Id. at 712. Therefore, the Court considered

“whether possession of child pornography constitutes an unlawful ‘sexual offense’ involving a

person eighteen years of age or under.” Id. The Court concluded that it does not. In so finding,

the Court noted that under the possession of child pornography statute, charges can be brought

when the image “appears to be a minor” because it is difficult to know the “true identity or date

of birth of the child in the photograph or movie.” Id. As a result, to adopt the statute of

limitations for “unlawful sexual offenses involving a person eighteen years of age or under”

would result in situations where once the minor depicted in the pornography reached 48-years

old, “no one possessing that image could be prosecuted for the possession of that child

pornography.” Id. at 713. Having concluded that § 556.037 does not apply to the crime of

possession of child pornography, the Court granted a Writ of Prohibition enjoining the trial court

from proceeding with the defendant’s criminal trial except to dismiss the charge. Id. at 715.

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The present case differs from Greufe. As stated previously, the issue in Greufe was

whether a different statute of limitations for unlawful sexual offenses applies to possession of

child pornography; here, the issue is whether the general three-year statute of limitations for

felonies is tolled until the possession of child pornography terminates. Additionally, the present

case differs factually from Greufe because in that case, the police discovered child pornography

and seized the computers on the same day, June 9, 2008, but did not file charges until August 9,

2011—three years and two months after the images were recovered. In Gruefe, even if the

statute of limitations was tolled until the defendant’s possession terminated, the State was barred

by the statute of limitations from filing charges. In contrast, in Defendant’s case, the police

discovered the child pornography on July 8, 2010, but did not seize Defendant’s computers and

thumb drives until September 23, 2010. The State filed charges on August 28, 2013, which is

within the three-year statute of limitations if it is tolled until Defendant no longer possesses the

child pornography. Because Greufe is not instructive on the issue of whether the statute of

limitations is tolled in possession of child pornography cases, we must turn to the language of the

statute criminalizing the possession of child pornography. Horn, 38 4S.W.3d at 341.

B. Possession of child pornography is a continuing offense.

As noted above, § 556.036.4 provides that for continuing courses of conduct, the statute

of limitations begins to run when the conduct is terminated “if a legislative purpose to prohibit a

continuing course of conduct plainly appears.” (Emphasis added). No Missouri case has held

that possession of child pornography is a continuing course of conduct for purposes of

§ 556.036.4. Therefore, as directed by the statute and rules of statutory construction, we must

look to the language of § 573.037.1 to determine if the legislature, in criminalizing the

possession of child pornography, plainly intended to prohibit a continuing course of conduct.

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Under § 573.037.1, a person commits possession of child pornography if he knowingly or

recklessly “possesses any child pornography.” The statute does not define the term “possess”

and, in such instances, we may rely on the plain and ordinary meaning of the language used.

State ex rel. Richardson v. Green, 465 S.W.3d 60, 64 (Mo. banc 2015). “Possess” is defined as,

“To have in one’s actual control; to have possession of.” BLACK’S LAW DICTIONARY (10th ed.

2014) (emphasis added). “Possession” in turn, is defined as “the fact of having or holding

property in one’s power . . . [or] the continuing exercise of a claim to the exclusive use of a

material object.” Id. Notably, the legislature uses the term “possess” in the present tense, which

indicates an ongoing, continuing act into the present. It follows that, under the statute’s plain

terms, the conduct criminalized is the having in one’s control child pornography, which conduct

by definition is inherently ongoing and continual until such possession terminates. Accordingly,

we hold that the legislature’s plain intent was to criminalize possession of child pornography as a

continuing course of conduct.

Our conclusion finds further support in the principle that the legislature is presumed to

know the law when it acts. State v. Prince, 311 S.W.3d 327, 334 (Mo. App. W.D. 2010).

Crimes of possession are generally recognized in our criminal law as continuing offenses

because “[t]he possession is a continuing offense, lasting as long as the act of possession does.”

WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.1(e), n. 46 (2d ed. 2003). This is because

possession “[is] not terminated by a single act or circumstance but [is] committed as long as the

proscribed conduct continues.” Wright v. Superior Court, 936 P.2d 101, 103 (Cal. 1997).

Accordingly, Missouri and federal courts have held that various crimes of possession are

continuing offenses. See State v. Robinson, 710 S.W.2d 14, 16 (Mo. App. W.D. 1986)

(“possession of the knife . . . is a continuing charge”); State v. Sampson, 408 S.W.2d 84, 89

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(“possession of the amphetamine was a continuing offense”); U.S. v. Zidell, 323 F.3d 412, 422

(6th Cir. 2003) (“possession with intent to distribute a controlled substance is a continuing

offense”); U.S. v. Fleischli, 305 F.3d 643, 658 (7th Cir. 2002) (“Possession of a firearm is a

continuing offense which ceases only when the possession stops.”). In the same way, possession

of child pornography is a continuing offense because it does not cease when the defendant

acquires the pornography, but rather when the possession terminates. Thus, by using the term

“possesses,” and absent any contrary intent, the legislature has indicated an intent to adhere to

the principle of criminal law that crimes of possession are continuing offenses.

Defendant argues that possession of child pornography is not a continuing offense, and

that such a reading of the statute is “too expansive” because it allows “law enforcement and the

prosecuting attorney to toll the statute of limitations indefinitely, or at least until the possession

was terminated . . . even after learning of the possession and having evidence of it.” Defendant

contends that tolling the statute of limitations until possession of child pornography terminates

contradicts the policy considerations supporting statutes of limitation, specifically the availability

of evidence. This argument is without merit, because generally when a defendant’s possession

terminates, the evidence is readily available. At that point, the statute of limitations begins to run

and one of the policy concerns of the statute of limitations—the availability of evidence—is then

triggered. We do not see how our holding does not comport with the policy concerns of the

statute of limitations, especially in Defendant’s circumstance, where possession terminated and

the police seized the evidence on the same day.

Defendant also argues that if possession of child pornography is a continuing course of

conduct, “a defendant would not be subject to multiple counts because of the protection of the

double jeopardy clause.” The Missouri Supreme Court has previously addressed this argument.

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As stated previously, the continuing course of conduct terminates when the defendant is no

longer in possession of the child pornography. The pornographic images in the defendant’s

possession until that point are charged and convicted as one count of possession of child

pornography. See State v. Liberty, 370 S.W.3d 537, 555 (Mo. banc 2012) (holding that multiple

convictions of possession of child pornography for multiple images possessed at the same time

violated double jeopardy). However, if the defendant were to come into possession of one or

more items of child pornography after that charge, a separate conviction would not be barred by

double jeopardy. See State v. Roggenbuck, 387 S.W.3d 376, 381 (Mo. banc 2012) (“[It] is

possible for a defendant to be convicted of multiple counts of possession of child pornography if

the [S]tate can show the defendant came into possession of the pornographic materials at

different times or from different sources.”).

Given the foregoing, we conclude that the possession of child pornography is a

continuing course of conduct for purposes of § 556.036.4. Therefore, in the present case, the three-year statute of limitations did not begin to run until September 23, 2010, when law enforcement seized Defendant’s computers, thumb drives, and other electronic storage containing the child pornography, and Defendant’s possession terminated. The State charged Defendant on August 28, 2013, before the three-year statute of limitations expired on September 23, 2013. Accordingly, the statute of limitations did not bar the State’s indictment. The trial court erred in granting Defendant’s motion to dismiss.