No Child Porn Possession from Thumb Cache

The Court of Appeals reverses two counts of possession of child pornogra­phy, as the trial court erred when it re­lied on images found in the unallocated space on defendant’s desktop and in the thumb cache on the laptop to establish defendant’s guilt, because special fo­rensic software programs and training were necessary to access those images; however, the court affirms a conviction based on evidence found in the “collec­tion” zip file downloaded using Sharea­za, as well as defendant’s conviction for distribution.

Knowing possession

Defendant argues the commonwealth could not prove that he knowingly pos­sessed child pornography because the only pictures found on the desktop and the laptop were in places defendant could not access, specifically, the un­allocated space and the thumb cache. Defendant also argued that people who have SD cards do not necessarily know what is on them. Defendant stated there was no way to prove he ever accessed, acquired or viewed anything on the SD card containing child pornography.

In Kobman v. Commonwealth, 65 Va. App. 304 (2015), this court found that the mere presence of contraband in the unallocated space of a computer does not establish knowing possession of the contraband because the material in the unallocated space cannot be accessed or seen without forensic software. Like­wise, in the present case, investigators found images in the unallocated space of defendant’s desktop, but because no forensic software was found on the com­puter allowing access to the material defendant could not be found to pos­sess the contraband. Therefore, the tri­al court erred in denying the motion to strike because no evidence established that defendant had knowledge, domin­ion or control of the photographs found in the unallocated space.

The trial court also erred by deny­ing the motion to strike as it related to the possession charges for images in the thumb cache. Based on expert tes­timony, special software is required to access the thumb cache, similar to that necessary for accessing the unallocated space. Pursuant to Kobman, when spe­cial software is required to access part of a computer, and that special software is not present, the recovered evidence by itself does not establish criminal li­ability.

Zip file

For the remaining possession charge, based on the evidence found on the desktop in the Shareaza “collection” zip file, the commonwealth advances a theory of constructive possession of the contraband. Special Agent Jedrey testi­fied that these images were accessible to users without any special programs. In addition, defendant admitted to the agent that he saw an image of child por­nography on a zip file. This evidence, coupled with the facts which bolster the finding that defendant had control over the desktop, the images located in the zip file which were under the user name “Mike,” and because the zip file had re­cently been opened on the desktop, lead to the conclusion that defendant knew the images were on the desktop and were under his dominion and control. The trial court’s ruling on the motion to strike as it related to the evidence found on the desktop in the Shareaza “collec­tion” zip file was not plainly wrong or without evidence to support it.

The court also did not err in denying the motion to strike related to pictures found on the SD card. The SD card was found in defendant’s hamper in this bedroom. Defendant admitted that he controlled the electronic devices in his house and stated that he was the “drag­on” between his sons and the comput­ers, monitoring their use of electronics. Defendant admitted that sometimes suspect images and videos appeared when he was trying to download adult pornography. Lastly, several of the vid­eos the special agent obtained while he was using peer-to-peer sharing software were also found on the SD card. The tri­al court ruling was not plainly wrong of without evidence to support it.

Distribution

Defendant’s conviction of distribu­tion of child pornography in violation of Va. Code § 18.2-374.1:1(C) will stand. Defendant knowingly downloaded and used the peer-to-peer sharing software on his desktop. He admitted to down­loading movies and adult pornography using Shareaza, showing he knew how to use the software. He also admitted that he had accidentally download­ed child pornography in the past. It was reasonable for the fact finder to conclude that defendant should have known that the software had the ability to share files with other users.

Moreover, a GUID number the special agent captured while downloading pho­tographs onto his computer during his investigation was a number generated during the installation of Shareaza on defendant’s desktop. The expert wit­ness testified that because this GUID number matched defendant’s desktop, the special agent downloaded the child pornography from defendant’s comput­er. Finally, several of the videos the spe­cial agent obtained while he was using peer-to-peer sharing software were also found on the SD card in defendant’s hamper.

Affirmed in part, reversed in part.

Kovach v. Commonwealth (Alston) No. 2013-15-2, Dec. 6, 2016; Westmore­land County Cir.Ct. (Taliaferro) David B. Hargett for appellant; Rosemary V. Bourne, Sr. AAG, for appellee. VLW 016- 7-294(UP), 11 pp.