After he was convicted, after a bench trial, of 32
counts of pandering sexually
oriented matter involving a minor in violation of Ohio Revised Code §§
2907.322(A)(2) and 2907.322(A)(1) and one count of possessing criminal tools in
violation of Ohio Revised Code § 2923.24(A), Carlos Diaz appealed. State
v. Diaz, 2013 WL 1501046 (Ohio Court of Appeals 2013). On appeal, Diaz argued that the prosecution’s
evidence at trial was
Insufficient to support his
convictions. [Diaz] believes there was insufficient evidence as to his identity
as the perpetrator of the crimes. He also contends that the state did not
establish that he knew there was peer-to-peer software on his computer
equipment or that his computer was used to advertise or disseminate the
prohibited material.
State v. Diaz, supra.
The Court of Appeals began its analysis of Diaz’s arguments
by noting that when it
reviews a claim of insufficient
evidence, `”the relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.”’ State
v. Leonard, 104 Ohio St.3d 54, 818 N.E.2d 229 (Ohio Supreme Court
2004) (quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (Ohio Supreme Court 1991)).
State v. Diaz, supra. It also explained that this standard required
the court to determine
whether there was any evidence that, if believed,
would support convictions against defendant for violations of Ohio Revised
Code §§ 2907.322(A)(1) and (2), which provide:
(A) No person, with knowledge of the character of
the material or performance involved, shall do any of the following:
(1) Create, record, photograph, film, develop,
reproduce, or publish any material that shows a minor participating or engaging
in sexual activity, masturbation, or bestiality;
(2) Advertise for sale or
dissemination, sell, distribute, transport, disseminate, exhibit, or display
any material that shows a minor participating or engaging in sexual activity,
masturbation, or bestiality[.]
State v. Diaz, supra.
The court then reviewed the evidence presented at Diaz’s
trial, noting that one of the witnesses, Rick McGinnis is “an investigator
assigned to Ohio's Internet Crimes Against Children Task Force (`ICAC’).” State v. Diaz, supra. McGinnis “participated
in the investigation that led to [Diaz’s] arrest . . . and he utilized law
enforcement software known as Peer Spectre.” State v. Diaz, supra. As this court explained, Peer Spectre is a
search program that operates on the
Gnutella network, which is a public peer-to-peer network where people share
their computer files back and forth. The Gnutella network enables people to log
onto the Internet to search, find, retrieve, and download shared files from
other computers, including child pornography.
The search will reveal an IP
address and SHA1 values, and from this information, the user
can download the desired file from the computer(s) that offered to share it.
Peer Spectre conducts an automated search that identifies file sharing of known
or suspected child pornography associated with a specific IP address.
Each time Peer Spectre is used by a law enforcement
agency anywhere in the world, the results are compiled in a centralized server.
The information logged into the central database includes the IP address, the
port it came from, and the date and time of the search. Law enforcement
agencies are then enabled to query the information that Peer Spectre recorded
into the central server.
State v. Diaz, supra.
(In a footnote, the court explained that “SHA1 stands for Secure Hash
Algorithm 1, which consists of 32 digits and functions as a file's digital
signature or unique identifier, which cannot be altered.” State v. Diaz, supra. McGinnis testified that “SHA1 values are
accurate in identifying a file to the 160th degree, which is `better than
DNA.’” State v. Diaz, supra. And it
added that there is a
certainty exceeding 99.99 percent that two or more
files with the same SHA1 value are identical copies of the same file regardless
of the file name. If any part of a file is altered in any way, the SHA1 is
changed.
State v. Diaz, supra.)
When he testified for the prosecution in Diaz’s case, McGinnis
identified state’s exhibit
No. 1 as being an IP activity report, which
references a specific IP address, SHA1 values, and contains dates ranging from
April 28, 2009 to May 6, 2009. From that, he was able to identify movies and
images of child pornography being associated with that IP address.
McGinnis
created state's exhibit No. 13, which is a disk with copies of the child
pornography files that he had identified from state's exhibit No. 1.
State v. Diaz, supra. He also testified
that “the files identified by Peer Spectre are located in a person's computer
in a `shared file’ after being downloaded from the Gnutella network.” State
v. Diaz, supra.
The Court of Appeals then explained that, at Diaz’s trial, after a “few
of the videos” were
played in open court, the defense stipulated that
state's exhibit No. 13 showed `a minor participating or engaging in sexual
activity, masturbation or bestiality’ for purposes of Counts 1 through 31 of
the indictment. However, the defense did not stipulate that the videos and
images belonged to [Diaz] or that he had recorded them.
State v. Diaz, supra.
Getting back to McMinnis’ investigation, he also learned, from records
he subpoenaed
from Time Warner, that [Diaz’s] son, Randy, was the
subscriber for the relevant IP address. Randy's address was an apartment in
Brook Park, Ohio. Police conducted surveillance of that residence and obtained
a search warrant.
McGinnis participated in executing the warrant on September
10, 2009, at 9:19 a.m. During the search, the following items were seized: an
Enermax black computer, a Buffalo hard drive, and a Hitachi hard drive.
State v. Diaz, supra.
Another witness -- Luis Vargas -- testified that Diaz is
related to his stepfather. State v. Diaz,
supra. Vargas and his cousin Julio spent the night at Diaz’s residence five
or six times in 2009, when they were “about 12 and 15 years old, respectively.”
State v. Diaz, supra. Diaz lived at
the apartment where the officers executed the warrant, and Vargas
said [he] lived alone in this
one-bedroom apartment. [Diaz] had a computer in his bedroom and would show the
boys adult pornography. [He] would not allow the boys to use his computer.
Although [Diaz] told Vargas he `didn't have the internet,’ Vargas . . . saw [Diaz]
accessing YouTube and Google. Vargas never saw anyone besides [Diaz] using the
computer.
State v. Diaz, supra.
Another witness -- Investigator Rice – “is an investigator with
the Cuyahoga County Prosecutor's office and is assigned to the ICAC task force.”
State v. Diaz, supra. Rice istrained as a computer forensic examiner, and the defense stipulated to
his expertise in computer forensic analysis. State v. Diaz, supra. He was present at the search of the residence
in September 2009 and testified at Diaz’s trial that child pornography was
found on several computer drives seized during the
search. He was able to determine the file names, the date they were created on
the computer hard drive, and when each was last accessed from that computer.
For example, one file on the Western Digital hard drive was created on May 11,
2009, at 1:48 p.m. and was last accessed on August 13, 2009, at 7:30 p.m. The
defense stipulated to the contents of the videos as involving children engaging
in sexual activity for purposes of Counts 9 through 32.
State v. Diaz, supra.
Rice also found file-sharing programs on the equipment seized from the
residence. State v. Diaz, supra. The
court explained that, when LimeWire
is installed, it creates a folder that is called
`shared.’ This is the file that is used when a person is online to connect
with, and share content, with other peers. `Carlos port’ was the file path
associated with it on the hard drive. Rice also found FrostWire, another
file-sharing program, on an HP Pavilion desktop computer.
During cross-examination, Rice indicated it is
possible for viruses to be placed in people's files where data can be disguised
and sent without the recipient's knowledge of its content unless they opened
it. In this case, the child pornography files were downloaded, accessed again
at later times, and none of them had been deleted.
State v. Diaz, supra.
In testifying Rice also confirmed that those with “training and skill”
can
hack into computers and place things on other
people's computers without their knowledge. Rice has seen computers that have
been remotely accessed, which leaves artifacts that evidence the remote access.
He used the Forensic Tool Kit created by AccessData to determine whether [Diaz’s]
equipment had been remotely accessed. Rice did not find any artifacts or
evidence that defendant's equipment had been remotely accessed by anyone.
State v. Diaz, supra.
So the Court of Appeals noted that “there was no evidence that someone else was
using [Diaz’s] wireless connection without his knowledge because the actual
files were found on his equipment.” State
v. Diaz, supra.
The opinion also says that (perhaps in testifying at trial)
Diaz told investigators he had “two computers: a laptop and a PC.” State v. Diaz, supra. He told Detective Bonnette, who assisted with
the search of his apartment and interviewed him, that “he was the only person
who used the computers.” State v. Diaz,
supra. Diaz “denied using FrostWire or LimeWire . . . because they caused
viruses” but Bonnette “felt [Diaz] was being evasive.” State
v. Diaz, supra.
The Court of Appeals then reviewed Diaz’s defense and the
trial judge’s finding of fact after all of the evidence was presented at Diaz’s
bench trial:
The court noted that [his] primary
defense was that he was not the person who imported or placed the child
pornography on the computers. The court found the state had proved that he was
the person who downloaded the child pornography beyond a reasonable [Diaz] told
police he lived alone.
The court also cited Vargas's testimony, which indicated
[Diaz] did not allow him to use the computer and Vargas only saw [Diaz] using
the computer. While there was some evidence other people had lived in the apartment,
the court expressed `no substantial belief that they had any access to the
computer.’
The evidence establishes that the child pornography
files were downloaded and re-accessed at a later time. That fact, coupled with
the evidence [Diaz] was the only person who used the computers, provided
evidence as to [his] knowledge of the . . . contents of the files.
While [Diaz] suggests a computer virus
could have caused the child pornography to be placed on his computer without
his knowledge, there is no evidence to support this theory. The computers were
searched for evidence of remote access, and none was found.
State v. Diaz, supra.
The Court of Appeals therefore held that there was
“sufficient evidence to support [Diaz’s] convictions”, and so affirmed his
convictions and, I assume, sentence. State v. Diaz, supra. The opinion does not say what the
sentence was.
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