In a prosecution of possession of child pornography, pursuant to G.L. c. 272, § 29C, if the offending photographs come from a single cache and the defendant is charged with possessing them at the same point in time, the statutory structure contemplates one unit of prosecution.
The defendant was charged with six counts of possessing child pornography; each count was premised on one or two distinct photographs from a single cache on the defendant’s computer. The defendant appealed the multiple convictions and his sentence on double jeopardy principles, and on other grounds. The Supreme Judicial Court accepted his application for direct appellate review.
The Court looked to the statutory construction, the penalty scheme and the purpose of G.L. c. 272, § 29C. It determined that while a single offending photograph is sufficient to support a conviction of possession of child pornography, it does not necessarily follow, that each photograph supports its own unit of prosecution where they are collectively possessed at a single point in time.
Instead of vacating the duplicative convictions and remanding for sentencing on one count, the Court remanded for a new trial based on other errors, cited in the opinion.