DA 18-0395

IN THE SUPREME COURT OF THE STATE OF MONTANA

2021 MT 1

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

J CEE FELDE,

 Defendant and Appellant.

APPEAL FROM: District Court of the Second Judicial District,

In and For the County of Butte-Silver Bow, Cause No. DC-16-29

Honorable Brad Newman, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad M. Wright, Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, C. Mark Fowler, Assistant

Attorney General, Helena, Montana

Eileen Joyce, Silver Bow County Attorney, Ann M. Shea, Deputy County 

Attorney, Butte, Montana

Submitted on Briefs: October 21, 2020

 Decided: January 5, 2021

Filed:

__________________________________________

Clerk

cir-641.—if

01/05/2021

Case Number: DA 18-0395
2

Justice Beth Baker delivered the Opinion of the Court.

¶1 J-Cee1 Felde appeals three convictions in the Second Judicial District Court, 

Silver Bow County, of Sexual Abuse of Children (Possession of Child Pornography) in 

violation of § 45-5-625(1)(e), MCA. Felde was charged with forty-nine counts and pleaded 

guilty to four, preserving appeal of his challenge to all but the first count. He argues that

§ 46-11-410(2)(a), MCA, prohibits multiple convictions for possession of child 

pornography when the images were discovered on a single day on a single device. 

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On January 21, 2016, an Internet Crimes Against Children investigator contacted 

the Butte-Silver Bow Law Enforcement Department regarding digital downloads of 

sexually explicit images of children associated with an IP address Felde leased. Officers 

seized Felde’s computer equipment the following week, and he admitted to 

downloading several photos and videos depicting child pornography. The State charged

Felde with 100 counts of Possession of Child Pornography, a felony, in violation of 

§ 45-5-625(1)(e), MCA. Felde pleaded not guilty to all charges. 

¶3 At the final pretrial conference, the parties filed a written plea agreement, pursuant 

to which Felde pleaded guilty to Count 1. The State made no promise to dismiss or amend 

the remaining charges. Felde then moved to dismiss the ninety-nine remaining counts as

 

1 At his first arraignment hearing, Felde advised the District Court his name is spelled,

“J-Cee Felde.” We use his preferred spelling here.
3

violating double jeopardy and his statutory rights against multiple convictions for included 

offenses. 

¶4 The District Court denied Felde’s motion to dismiss. It held that the State’s 

allegations would not necessarily constitute included offenses if the charging document 

showed Felde’s conduct “victimized separate children and involved separate acts of 

downloading/possessing images of the distinct victims, or . . . did so on separate 

occasions[.]” The District Court thus concluded the record did not provide sufficient 

information upon which to grant the motion. It did note, however, that there was not 

sufficient detail in the Information “for the Defendant to understand whether he is being 

prosecuted for allegedly injuring distinct victims and/or for committing distinct acts of

downloading/possessing illegal images.” It therefore ordered the State to file an amended 

affidavit and amended information.

¶5 The State then filed an Amended Information that reduced the charges to forty-nine

counts. The State explained that Felde’s computer equipment contained at least 100 

separate and unduplicated child pornography images, but—due to the “magnitude” of the 

case and because Felde already pleaded guilty to Count 1—“justice would be served” by 

reducing the charges to forty-nine counts as related to the forty-nine images contained in 

Felde’s Gateway computer tower.

¶6 Felde moved to dismiss, arguing again that Counts 2 through 49 did not constitute 

separate offenses under § 45-5-625(1)(e), MCA, but instead arose out of the same 

transaction and were included offenses. Following a hearing, the District Court denied the 
4

motion, again concluding that the State properly exercised its discretion to prosecute Felde 

for multiple counts of the charged offense where those counts related to separate victims 

or separate incidents. It ruled that “multiple charges related to the separate victims or the 

separate incidents would not necessarily constitute included offenses.” 

¶7 Pursuant to a written plea agreement, Felde pleaded guilty to Amended Counts 1 

through 4, reserving his right to appeal the District Court’s denial of his motion to dismiss 

as to Counts 2 through 4. The District Court sentenced him to ten years on each count, all 

suspended, with credit for forty-three days already served. It dismissed the remaining 

counts pursuant to the plea agreement. 

STANDARD OF REVIEW

¶8 We review de novo a district court’s interpretation of a statute, and we review its 

application of a statute to a particular set of circumstances for correctness. State v. Parks, 

2013 MT 280, ¶ 20, 372 Mont. 88, 310 P.3d 1088 (citation omitted).

DISCUSSION

¶9 Does § 46-11-410(2)(a), MCA, prohibit multiple convictions for possession of 

multiple child pornography images discovered on the same computer on the same 

day?

¶10 Although Felde refers to double jeopardy principles, he did not develop a 

constitutional double jeopardy argument. We thus resolve the issue on appeal by applying 

the multiple charges statute and decline to consider constitutional double jeopardy 

principles. State v. Brandt, 2020 MT 79, ¶ 11, 399 Mont. 415, 460 P.3d 427.
5

¶11 A prosecutor has discretion to charge and prosecute separate acts as separate 

offenses. See § 46-11-404, MCA; Parker v. Crist, 190 Mont. 376, 381-82, 621 P.2d 484, 

488 (1980). Montana law allows a person to be prosecuted for more than one offense 

committed during a single transaction. Section 46-11-410(1), MCA. “A defendant may 

not, however, be convicted of more than one offense if . . . one offense is included in the 

other[.]” Section 46-11-410(2)(a), MCA; State v. Strong, 2015 MT 251, ¶ 17, 

380 Mont. 471, 356 P.3d 1078; State v. Dixon, 2000 MT 82, ¶ 49, 299 Mont. 165, 

998 P.2d 544. Section 46-1-202(23), MCA, defines “same transaction” as:

conduct consisting of a series of acts or omissions that are motivated by:

(a) a purpose to accomplish a criminal objective and that are necessary or 

incidental to the accomplishment of that objective; or

(b) a common purpose or plan that results in the repeated commission of the 

same offense or effect upon the same person or the property of the same 

person.

An “included offense,” in relevant part, is one that “is established by proof of the same or 

less than all the facts required to establish the commission of the offense charged[.]” 

Section 46-1-202(9)(a), MCA. 

¶12 We have often considered multiple-conviction challenges when the State has 

charged more than one offense under different statutes based on the same factual events. 

See, e.g., State v. Williams, 2010 MT 58, ¶¶ 6, 15, 355 Mont. 354, 228 P.3d 1127;

State v. Goodenough, 2010 MT 247, ¶¶ 1-4, 8, 358 Mont. 219, 245 P.3d 14;

Parks, ¶¶ 28-31. In those cases, we have analyzed the elements of the offenses to determine 

whether one is included within another. We have relied on § 46-11-404, MCA, when 

considering multiple charges and convictions under a single statute when all the charges 
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arise from the same incident. See, e.g., Parker, 190 Mont. at 381, 621 P.2d at 488

(upholding multiple robbery convictions arising out of the same incident that involved 

multiple victims); State v. Holmes, 207 Mont. 176, 183-84, 674 P.2d 1071, 1074-75 (1983) 

(affirming multiple theft convictions for different items loaded on a moving van and 

transported at the same time). In this case, the State charged multiple offenses under the

same statute. Felde argues that the statute defines only a single offense for his combined 

possessions, and for that reason his convictions for all but one charge may not stand. 

¶13 Each of Felde’s convictions is for violating § 45-5-625(1)(e), MCA,

“knowingly possess[ing] any visual or print medium, including a medium by use of 

electronic communication in which a child is engaged in sexual conduct, actual or 

simulated[.]” “Visual medium,” in relevant part, means “any disk, diskette, or other 

physical media that allows an image to be displayed on a computer or other video screen 

and any image transmitted to a computer or other video screen by telephone line, cable, 

satellite transmission, or other method.” Section 45-5-625(5)(d)(ii), MCA. 

¶14 Felde contends that § 46-11-410(2)(a), MCA, prohibits the State from convicting 

him of multiple counts of possession of child pornography when he possessed all the 

images at the same time on the same computer. He argues that each offense arose out of a 

single transaction, and Counts 2, 3, and 4 were offenses “included” within the offense 

charged in Count 1 because the statute does not create a separate offense for each image 

and there is thus no factually distinct basis for each count. See § 46-1-202(9)(a), MCA. 

Felde contends that the “visual medium” was Felde’s Gateway computer tower and, as 
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charged, Felde committed a single offense for possessing the multitude of images found on 

that computer on January 27, 2016.

¶15 The State does not appear to contest that Felde’s charged offenses were part of the 

same transaction. “Whether two offenses arise from the same transaction or involve the 

same criminal objective does not depend on the elements of the charged offenses, but rather 

on the defendant’s underlying conduct and purpose in engaging in that conduct.”

State v. Ellison, 2018 MT 252, ¶ 21, 393 Mont. 90, 428 P.3d 826 (quoting State v. Glass, 

2017 MT 128, ¶ 12, 387 Mont. 471, 395 P.3d 469). Felde engaged in a series of acts 

motivated by a purpose to accomplish a criminal objective, obtaining images of child 

pornography. See § 46-1-202(23)(a), MCA. The State contends, however, that even if part 

of the same transaction, Felde’s separate convictions are not barred because he committed 

four separate acts of possession of child pornography when Felde possessed four individual 

and discrete images that were created at different times, were accessed at different times, 

and depicted different victims. 

¶16 In the construction of a statute, we look first to its plain language; if the language is

clear and unambiguous on its face, we need not engage in any further construction. 

Strong, ¶ 13 (citation omitted); Langemo v. Mont. Rail Link, Inc., 2001 MT 273, ¶ 23, 

307 Mont. 293, 38 P.3d 782. We give words in the statute their usual, ordinary meaning. 

Langemo, ¶ 22. We may not insert what has been omitted or omit what has been inserted. 

Section 1-2-101, MCA. We also construe a statute as a whole and in light of its surrounding 
8

sections to avoid conflicting interpretations. Mont. Sports Shooting Ass’n. v. State, 

2008 MT 190, ¶ 11, 344 Mont. 1, 185 P.3d 1003 (citations omitted).

¶17 Section 45-5-625, MCA, proscribes multiple variants of conduct by which a person 

engages in sexual abuse of children by exploiting them for child pornography. The statute 

makes clear that using, photographing, recording, or soliciting a child in any exhibition of 

actual or simulated sexual conduct is an offense. The statute also broadly prohibits any 

possession, publication, sale, financing, or advertising of printed or electronic depictions 

of such conduct. The statute prohibits the possession of both electronic images and hard 

copies of images. See § 45-5-625(5)(d)(i), MCA (“any film, photograph, videotape, 

negative, slide, or photographic reproduction that contains or incorporates in any manner 

any film, photograph, videotape, negative, or slide”). We observed in State v. Harrington, 

2017 MT 273, ¶ 16, 389 Mont. 236, 405 P.3d 1248, that the knowing “possession of such 

photographs alone renders one in violation of § 45-5-625(1)(e), MCA.”

¶18 Each of the proscriptions refers to “a child . . . engaged in sexual conduct, actual or 

simulated.” The subsection under which Felde was charged is no different, prohibiting 

knowing possession of “any visual or print medium . . . in which a child” is so depicted. 

Section 45-5-625(1)(e), MCA (emphasis added). By defining “visual medium” to include 

“any . . . physical media that allows an image to be displayed on a computer or other video 

screen and any image transmitted to a computer or other video screen,” 

§ 45-5-625(5)(d)(ii), MCA (emphases added), the statute proscribes not only the possession 
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of the device through which the image is transmitted and displayed on a computer but also 

“any image” so transmitted. 

¶19 The parties dispute the meaning of “any” image as used in the statute. “The usual 

and ordinary meaning of the word “any” is “every.” Langemo, ¶ 23. We applied that 

ordinary meaning to conclude in Langemo that “any highway, road, or railroad crossing” 

meant “every” railroad crossing, both public and private. Langemo, ¶ 23 (citing 

Webster’s New World College Dictionary 64 (4th ed. 1999)). For similar reasons, the plain 

language of § 45-5-625(1)(e), MCA, clearly and unambiguously supports conviction for 

every image of child pornography the defendant possessed. The inclusion of both 

“physical media . . . and any image. . .” means that the definition of “visual medium” is 

not restricted by the storage of multiple images on a single device. The statute uses the 

word “image,” a singular noun, thus encompassing one digital image contained on a 

housing device. It also prohibits possession of the visual medium in which “a child” is 

depicted. “We construe a statute by reading and interpreting the statute as a whole, 

‘without isolating specific terms from the context in which they are used by the 

Legislature.’” Mont. Sports Shooting Ass’n., ¶ 11 (quoting City of Great Falls v. Morris, 

2006 MT 93, ¶ 19, 332 Mont. 85, 134 P.3d 692).

¶20 Felde’s suggestion that the charging statute requires a single charge for multiple 

digital images would defeat the statute’s broad purpose to protect victimization of children 

and prove inconsistent with cases of hard-copy images; possession of multiple digital 

images within one device would be limited to one charge, but possession of four hard copy 
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photographs could produce four. It is immaterial that all the images were on one computer 

and seized at the same time. It would not be a common-sense interpretation of the statute 

to allow two charges and two convictions for two separate discoveries of only one image 

of child pornography at each, but one charge and a single conviction for a single discovery 

of dozens of images of individual exploited children.

¶21 Finally, Felde argues that the relevant sentencing provision, 

§ 45-5-625(2)(c), MCA, describes the punishment based on the “material” possessed by 

the defendant, which is plural. He therefore contends that, though multiple charges may 

be allowed, multiple punishments may not. We disagree. The sentencing subsection states, 

in relevant part: “a person convicted of the offense of sexual abuse of children for the 

possession of material, as provided in subsection (1)(e), shall be fined not to exceed 

$10,000 or be imprisoned in the state prison for a term not to exceed 10 years, or both.” 

Section 45-5-625(2)(c), MCA. The word “material,” a word that may be either singular or 

plural, is tied directly to the language of subsection (1)(e), and thus includes a single image. 

We do not read the sentencing statute in conflict with our interpretation of the charging 

statute. 

¶22 We thus conclude from the plain meaning of the statute in its entirety that it permits

the prosecution and conviction of a separate offense for each image the defendant 

possessed. When the plain language of a statute is clear and unambiguous, we need not 

engage in further construction. Strong, ¶ 13. 
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CONCLUSION

¶23 The District Court properly concluded that § 45-5-625(1)(e), MCA, allows 

conviction for each image of child pornography that Felde possessed. Counts 2, 3, and 4 

of the Amended Information were not included within the offense charged in Count 1. 

Felde’s separate convictions therefore stand, and the judgment is affirmed. 

/S/ BETH BAKER

We Concur: 

/S/ MIKE McGRATH

/S/ DIRK M. SANDEFUR

/S/ JIM RICE

Justice James Jeremiah Shea recused himself from participation in this case.