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Testimony on Images Proved Child Porn Possession

Although the prosecution did not introduce evidence of the actual images of child pornography from defendant’s computer, which he had destroyed, testimony by his former girlfriend describing the images she discovered on his computer, and defendant’s recorded interview with police acknowledging and describing child pornography he had viewed, were sufficient to find that the images depicted “identifiable minors” as their subject; the Court of Appeals affirms his conviction under Va. Code § 18.2-374.1:1(A).

Defendant challenges the sufficiency of the evidence to show that the images depicted an “identifiable minor” or “actual person.” Specifically, he argues the evidence failed to exclude the possibility that the subjects in the images were not actual people, but were computer-generated images. Defendant relies heavily on the fact that none of the images were admitted into evidence.

It is true that, in each of the cases cited by defendant, the actual images of child pornography were admitted into evidence and served as the basis for the convictions. Indeed, when such images are admitted at trial, it is generally recognized that pornographic images themselves are sufficient to prove the depiction of actual minors. None of the cases defendant cites, however, support the proposition that the images must be admitted before it can be proved that the subjects of the images were actual persons. Rather, the cases universally stand for the proposition that a trier of fact is competent to determine whether pornographic images depict actual people simply by looking at the images themselves.

While the images in the present case were not admitted into evidence, that does not foreclose the possibility of the commonwealth meeting its burden of proof by other competent evidence. Indeed, the cases upon which defendant relies demonstrate that laypersons can make judgments regarding whether the subjects depicted in images are actual people or computer generated simply by viewing the images. The commonwealth presented evidence to this effect through the girlfriend’s testimony. She testified that she found multiple photographs depicting minors that had been “downloaded” onto defendant’s computer. She described the photos in detail, including the sexual activity depicted between adults and prepubescent and young teenage girls. She testified the images were “clear photographs,” that the children depicted “looked human” and that “it wasn’t a cartoon or a likeness.” She testified the images did not appear to be computer generated “in any way” and appeared to show “real people.”

In addition, in an interview with police, defendant acknowledged his girlfriend found images on his computer and confronted him about them. Defendant stated the images were child pornography and he acknowledged they depicted small children from age eight to 17. He described content of some of the pictures depicting sexual contact between small girl children and grown men.

After viewing the girlfriend’s testimony and defendant’s recorded interview, this court concludes the evidence was sufficient for a reasonable trier of fact to conclude the images depicted “identifiable minors” as their subject.

Defendant also argues his other roommates had access to his laptop computer and they could have been the ones to download the images. However, the issue regarding possession is not concerned with who downloaded the images, but whether defendant was aware of their presence and character and whether he exercised dominion and control over them. Here, possession was established by defendant’s acknowledgement that he had viewed the images and that he knew the laptop contained child pornography images when he threw it into a dumpster.

Terlecki v. Commonwealth (Huff) No. 1681-14-2, June 16, 2015; Fredericksburg Cir.Ct. (Willis) Norman A. Thomas for appellant; Christopher P. Schandevel, AAG, for appellee. VLW 015-7-176, 12 pp.

 

VLW 015-7-176

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