Justice Fernandez-Vina continued in relevant part: State v. Brown sets forth the Court’s general approach to merger issues, a “flexible approach that requires focus on the elements of the crimes and the Legislature’s intent in creating them, and on the specific facts of each case. The overall principle guiding merger analysis is that a defendant who has committed one offense cannot be punished as if for two.” 138 N.J. 481, 561 (1994) (citations and internal quotation marks omitted). Such an approach entails “the analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed.” State v. Davis, 68 N.J. 69, 81 (1975). Guidance also arises from the principle that “the Legislature is empowered to split a single, continuous transaction into stages, elevate each stage to a consummated crime, and punish each stage separately.” Id. at 78.
In Davis, the Court considered the issue of merger in the context of the crimes of possession and distribution of a controlled dangerous substance, and found them to be separate offenses subject to separate punishments. The Court explained that if a defendant’s “possession was contingent upon and inseparable from the sale itself, a ‘mere fleeting and shadowy incident of the sale,’ then only one offense had been committed.” Id. at 83. The Davis Court then explained that there was “ample evidence to support the conclusion that Davis was not engaged in ‘fleeting and shadowy’ possession preceding and purely incidental to imminent distribution, as would be true of an agent of or go-between for a seller,” but rather was in possession for a “substantial period of time separate and apart from his possession merely incident to a particular imminent sale.” Id. at 83-84.
In this case, prior to the period during which Miller began to distribute the pornography, there was a period of over two years in which he possessed it but had not yet distributed it. Further, in addition to the over 900 child pornographic images and videos stored on Miller’s computer, there were eleven CDs and DVDs containing photographs and video recordings of child pornography that were found inside his home, separate from the pornography on his computer. The possession and distribution offenses were therefore distinct and the trial court appropriately determined that they did not merge for sentencing purposes.
“Distribution” of child pornography, like distribution of a controlled substance, is an offense for which almost every possessor commits. That is to say, that almost everyone that uses drugs “shares” them with someone else at some point. “Sharing” equals distribution unless two individuals came into possession of the shared contraband at the same point in time.