After a jury convicted Clark Alexander Mahoney Jr., of
possessing child pornography or child erotica in violation of California Penal Code § 311.11(a),
the court “granted [him] probation”. People v. Mahoney, 2013 WL 5648729
(California Court of Appeals 2013). He
then appealed, arguing that “there was insufficient evidence to support the
verdict”. People v. Mahoney, supra.
The opinion explains that on January 4, 2010,
Mahoney lived alone “at his home”, where he kept four computers. People
v. Mahoney, supra. Through a
sequence of events not described in the opinion, law enforcement officers seized
the computers – a Compaq, a Hewlett Packard laptop, an Apple and an Acer “mini-notebook
computer” --on January 4, 2010. People v. Mahoney, supra. It also explains, in great detail, what
was found on each, as this goes to whether the evidence presented at trial was
sufficient to prove Mahoney’s guilt beyond a reasonable doubt. The paragraphs below summarize what it says
on this issue.
On the Compaq computer, the prosecution’s expert found
twelve
thumbnail size computer generated images of children having sex with adults. The images
had been saved to a folder on the hard drive on October 19 and December 7,
2009, and, subsequently, the folder had been deleted. The prosecution's expert
could not determine whether any of the 12 images had been viewed or how they had
been deleted. The fact these images had the same creation, modification and last access date suggests
they appeared on the screen while the computer user was viewing a website, but
the prosecution expert could not say that the computer user opened any images
beyond viewing them within Internet Explorer.
The images had been saved to
temporary Internet files. The fact that the December 7 creation time was within
four minutes of the last access time suggested that they were consistent with
advertisements on a web page. The evidence relating to these images was not
admitted to prove the charged offense, but as evidence of [Mahoney’s] intent. .
. .
Also on the Compaq were 188 thumbnail
images of girls in bikinis or panties with their legs spread, with the focal
point of the images being their genitals or buttocks, nine of which were shown
to the jury. The images had been saved by the Compaq's operating system to
temporary Internet space on the hard drive by the computer user visiting the website
on which the images appeared on October 19 and December 7, 2009, and on January
3, 2010, then . . . deleted. The standard user name of `Compaq_ administrator’
was associated with these images.
A web page for that user name was for [Mahoney].
The images would have come across the computer's monitor, but it could not be
determined whether anyone had actually viewed them. . . . Also on the Compaq
was a web banner graphic for a child pornography image named, `Real Preteen’
that had eventually been deleted.
A banner graphic is saved to the hard drive
when the computer user goes to the website where the graphic appears. It had
been in a temporary Internet file, meaning the image had to have been displayed
on a web page and the computer user had to have visited that web page. The same
user name as previously mentioned was associated with this graphic as were the
above-mentioned dates. . . .
Also on the Compaq were Google Internet
searches for web pages associated with child model sites and child erotica-type
content, with which the above-mentioned user name was associated and `the user
profile identified [Mahoney] as having the email address associated with [this
user name].’ They were in unallocated space. The Compaq also contained indicia
of a peer-to-peer sharing network that had been used on the computer and a
movie file with a title consistent with child pornography content that had been
partially downloaded, suggesting that the computer user had either cancelled
the download, or deleted it after it had been completed. . . .
People v. Mahoney,
supra.
On the Hewlett Packard laptop officers found sixty-four
thumbnail size images of
child
porn or child erotica -- nine of them, which depicted young or preteen girls in
various states of undress, . . . which could be viewed by the computer user on
the screen, were shown to the jury. Because they were in unallocated space, . .
. it could not be determined when they were created or deleted. The 64 images
had been saved to the hard drive before being deleted. The images could be
consistent with an advertising page or the opening page from a model's website
showing the content of that website.
The prosecution's expert was not able
to say that these images were displayed on the HP's monitor, because they were
in unallocated clusters, however, they were consistent with the images he found
on the Compaq's hard drive, which he opined had been on its monitor, and with
the images he found on the Apple brand computer's (Apple) hard drive (discussed
below), some of which had been enlarged by the computer user.
The HP laptop
also contained web banner graphics of four very small images that had been
spliced together to make one large, long image of preteen girls in various
states of undress. . . . In the opinion of the prosecution's expert, the girls
in all of the above-mentioned images were under the age of 18. . . .
Also on the HP laptop were deleted
Google searches—the user name associated with them was Clark, which is [Mahoney’s]
first name. The text . . . for these searches was . . . `hot preteen models,’ `nude
preteen’ and `nude preteen models.’ In his opinion, the images he found on the
Compaq, the HP and the Apple (discussed below) were images that would be found
if a computer user entered these search terms. Google suggestions, which are
suggested search terms that appear when the computer user begins typing a
search term into the Google web page, are not saved to the Internet history but
they are saved as a temporary file in unallocated space. . . .
In the prosecution expert's opinion, Google suggestions would not suggest a
term like `nude preteen model’ and if a computer user typed `nude’ into a search,
a suggestion of `preteen’ would not be made. There were no Google suggestion
for `nude preteen.’ When the prosecution's expert typed “preteen nude” into a
Google search on this computer, no suggestions related to child pornography or
child erotica came up. . . .
People v. Mahoney, supra.
On the Apple computer, officers found
268 images, which had been deleted, . .
. nine [of which were] shown to the jury. . . . Because the 268 images were in
unallocated clusters, . . . it could not be determined when they were created
or deleted. The nine images shown to the jury were of girls and boys, from
infancy to early teen (all under 18), engaged in sexual acts or having their
exposed genitals as the focus of the images.
The images ranged in size from
thumbnail to full-size large images. . . . Also on the Apple laptop was a web
page banner for the Lolita's Kingdom web page, deleted web pages to Lolita-type
sites and child model sites for child erotica and 505 images of child erotica.
People v. Mahoney,
supra. Finally, on the Acer officers found “deleted web page entries
showing web page names relating to child models or tiny girl pictures.” People v. Mahoney, supra.
Mahoney apparently argued, in his defense, that a virus was
responsible for the images and other materials found on his computers because
the opinion explains that in the
[prosecution] expert's opinion, whether
the Compaq, the HP or the Apple had a virus would be
irrelevant because no virus would
cause a Google search for the term `nude preteen’ to be typed in as it was on
the HP. Also, the images found on all three of these computers were consistent
with the types of Google searches that had been done on the HP (the user name
associated with those searches was Clark), and according to the prosecution's
expert, a virus would
not put those images onto a computer.
He had never seen a virus put child pornography onto
a hard drive, including the virus, Trojan. He conceded that pop-ups, which are
advertisements that appear on the computer screen, could be caused by a
Trojan virus.
People v. Mahoney,
supra. (When asked if he found
Trojan viruses on the computer, the expert’s response was “`I said I didn't pay
any attention to the viruses or Trojans, whether or not they were present.’” People
v. Mahoney, supra.)
As to pop-ups, the
prosecution expert described a “`redirect’” as occurring when a
computer user is on a website and is
trying to close the website, but another screen appears, directing the user to
another location. At times, a computer user clicks on a page he or she thinks
he or she is going to and is actually taken to another page that has different
content.
Typically, these pop-ups or redirects can be viewed by the computer
user and the user has to be on the Internet for them to occur. In the expert's
opinion, pop-ups or redirects are irrelevant to this case because some user of
the HP had to enter the terms `hot preteen models’ and `nude preteen.’ He had
never seen a website redirect to child pornography if the computer user was not
originally on a child porn site. . . .
People v. Mahoney,
supra.
That brings us to Mahoney’s expert witnesses. The first testified that “most, if not all,”
of the “248 `suspect’ images from the Compaq and the” Hewlett Packard
were from redirects and had not been
clicked on and downloaded to either computer. A thumbnail image is saved to a
hard drive by the computer user going to the website where the thumbnail image
is located, or that website popped up, or the computer user was redirected to
that website. Based on his training and experience, a computer user cannot go
to a legitimate website and have a pop-up or redirect to child
pornography.
People v. Mahoney,
supra.
Mahoney’s second expert testified “differently from the
first,” saying he had seen
legitimate sites redirect to child
pornography sites. However, once the computer user is redirected, the
redirected-to-website would be seen on the computer screen. He testified that
some redirects . . . and some pop-ups . . . are outside the computer user's
control and the latter may be so fast the computer user cannot intercept it or
see it happening. . . . Concerning only the images on the Compaq that were
dated January 3, 2010, he testified most were created within a minute of a
particular time and it was the same as the modification time and access time,
meaning that none had been clicked on and viewed.
Based on what he said was the
small number of suspected child pornography and child erotica images relative
to the total number of images found . . . , the small size of the former images
and the fact they were created, modified and accessed at the same time, he
opined that they were pop-ups that appeared on some type of web page or ads or
thumbnails.
People v. Mahoney, supra.
The second defense expert also testified that
[o]ne of the five-to-seven viruses on
the Compaq was a Trojan, and viruses can cause redirects, but he had never seen a virus that
dropped child porn onto a computer. He found `a few’ images of child erotica on
the HP and none on the Apple.
People v. Mahoney,
supra.
Mahoney took the stand and denied (i) “he had viewed any of
the images that had been shown to the jury”; (ii) “searching for or viewing any
sexually explicit images of children or images of children engaging in sexual
activity”; and (iii) “knowing any web pages he visited were automatically
downloaded to his hard drive.” People v.
Mahoney, supra. He claimed “the Apple stopped working in early 2009”,
admitted to “using the Compaq on January 3, 2010, . . . but the Internet on it
had given him problems.” People v.
Mahoney, supra. He also denied “doing
the searches on the HP under the user name Clark for nude preteen models” and “did
not recall searching the Internet for images of little girls on January 3,
2010.” People v. Mahoney, supra.
In arguing that the prosecution’s evidence was not sufficient to prove his guilt beyond a reasonable doubt, Mahoney claimed “there
was insufficient evidence to prove he knew of the existence of the child
pornography and erotica images that were in temporary Internet space.” People
v. Mahoney, supra. In making this
argument, he relied on the U.S. Court of Appeals for the 9th Circuit’s decision in U.S. v. Kuchinski,
469 F.3d 853 (2006), in which the court held that “[w]here a defendant lacks
knowledge about the cache files, and concomitantly lacks access to and control
over those files, it is not proper to charge him with possession and control of
the child pornography images located in those files, without some other
indication of dominion and control over the images.“
This Court of Appeals found that the 9th
Circuit’s decision in Kuchinski was
factually distinguishable from this case, since in that case there was
no evidence . . . that the defendant
was even aware that the automatically downloaded web pages he had viewed were
in the cache files of his computer. Moreover, the prosecution expert in Kuchinski testified
that even most sophisticated computer users do not know that the web pages they
have accessed have been automatically downloaded to his or her hard
drive.
People v. Mahoney,
supra.
The court then explained that there
was no such evidence in this case, but
there was sufficient evidence from which this jury could reasonably infer that [Mahoney]
knew the web pages he was visiting were being automatically downloaded to his
hard drive. That circumstantial evidence was that [he] was a sophisticated
computer owner and user, having owned four computers at the time of the search
of his home, in addition to 18 other media devices.
Additionally, [Mahoney] testified that
he had done `lots and lots [of Internet searches,]’ that he had taken classes
on instructional technology, during which he learned how to make and present a PowerPoint
presentation, how to put together information on a teacher website, how to use
a Smart Boards in the classroom and
how to run a projector and that he used a computer to do his lesson plans and
play a game. He testified that he used computers both at work and at home.
He conceded that one might have the
opinion that he was pretty knowledgeable about computers. The prosecutor
identified the central issue in this case for the jury during her argument as
follows, `Did the defendant know he possessed those images?’
The jury answered
this question in the affirmative and there was sufficient evidence to support
their implied finding. Kuchinski does not stand for the
proposition that just because a web page is automatically downloaded to the
hard drive by the system, it cannot be proven that defendant was aware of this.
People v. Mahoney,
supra.
Finally, Mahoney argued that “there was insufficient
evidence that he knowingly possessed or controlled the child pornography or
erotica images in the temporary Internet space.” People
v. Mahoney, supra. The Court of
Appeals did not agree:
[A]s to the Compaq, the jury could
reasonably conclude, based on testimony by the prosecution expert, that on two
separate dates, [he] viewed the computer-generated images of children having
sex with adults, which could establish [Mahoney’s] intent or knowledge. The
jury could also reasonably conclude that [he] viewed 188 thumbnail images of
child erotica, the child pornography banner graphic for `Real Preteen’ and
pornographic/erotica images of three female children all on three separate
dates, as well as 200 additional images of child erotica.
There were Google
searches on the Compaq for child erotica-type content associated with [his]
name, a partially downloaded or completely downloaded, then deleted, movie file
consistent with child pornography and text in the network program including
words related to child pornography and erotica.
On the HP, besides the 64 images of
child pornography and erotica and the web banner graphic depicting child
erotica, which were consistent with the images on the Compaq and the Apple,
were Google searches under a user name associated with defendant for, inter
alia, `nude preteen’ and `nude preteen models.’
In the prosecution expert's
opinion, the images of child pornography and erotica found on all three
computers were consistent with searches using these terms. Of the 268 child
pornography and erotica images on the Apple, of particular importance were
those that had been clicked on and enlarged. Also on the Apple were, inter
alia, 505 images of child erotica.
The sheer volume of child pornography
or erotica images, along with the Google searches tied to [Mahoney], created
sufficient evidence to support the verdict. As the prosecutor poignantly asked
the jury, why would the same type of images be on three of defendant's
different computers if he did not interface with them?
She used the same argument to
contradict the defense claim that the images were the result of a virus -- she
asserted it was too much of a coincidence that child pornography and erotica
ended up on three different computers as a result of viruses. Two of the three
computers had searches for child pornography or erotica on them. While there
was a possibility that [Mahoney] had not viewed these images, the jury was free
to believe otherwise, based on the other evidence presented.
People v. Mahoney,
supra.
The court therefore affirmed Mahoney’s conviction. You can read a little more about the
prosecution in the news story you can find here.
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