After Marc Hall was “convicted of three counts of sexual
exploitation of a minor for possessing three digital videos of child
pornography.” State v. Hall, 2014 WL 2557847 (Court of Appeals of Arizona
2014). The court begins the opinion by
explaining how the prosecution arose:
In November 2009, J., Hall's then-wife,
woke early in the morning and observed him watching a video of what she
believed to be child pornography on his computer. She put on her glasses, left
the room for a while, and then returned and confronted Hall about what he was
watching; he offered to let her look at his computer.
When she looked, J. saw
the titles of two files in the Windows Media Player history log strongly
suggestive of child pornography, but when she tried to open them she received
the error `”file does not exist.”’ After an argument with Hall, J. eventually
called two friends over, who began helping her pack her possessions to prepare
to leave with the children.
While J. was packing, Hall reinstalled
the Windows operating system on his computer. J. left with the children later
that evening, and called the police. A forensic examiner recovered numerous
digital videos and photographs from the unallocated space of the hard drive in
Hall's computer which the police classified as images of child sexual abuse.
State v. Hall, supra.
Hall was charged with ten counts of sexual exploitation of a
minor; a jury convicted him on three of the counts. State
v. Hall, supra. He was “sentenced to consecutive terms of
imprisonment totaling thirty years.” State
v. Hall, supra. He then appealed, arguing, in part, that
“insufficient evidence supported the convictions”. State v. Hall, supra. The Court of Appeals began its analysis
of his argument by noting that it “view[s] the facts in the light most
favorable to upholding the convictions.”
State v. Hall, supra.
More precisely, Hall claimed the trial judge “erred in
denying his motion for a judgment of acquittal made pursuant to Rule 20 of the Arizona Rules of Criminal Procedure because insufficient evidence supported
the jury's verdicts.” State v. Hall, supra. The Court of
Appeals noted that
[w]e review de novo whether sufficient
evidence was presented at trial to support a conviction. State v.
Mwandishi, 229 Ariz. 570, 278 P.3d 912 (Arizona Court of Appeals 2012).
In doing so, `”we view the evidence in the light most favorable to supporting
the verdict and will reverse only if there is a complete absence of substantial
evidence to support the conviction.”’ State v. Ramsey, 211 Ariz.
529, 124 P.3d 756 (Arizona Court of Appeals 2005), quoting State
v. Sullivan, 187 Ariz. 599, 931 P.2d 1109 (Arizona Court of Appeals 1996). Evidence is `substantial if reasonable persons could differ on whether it
establishes a fact in issue.’ Id.
State v. Hall, supra.
Next, it explained that Hall was convicted under Arizona Code § 13–3553(A), which
requires the state to show that the
defendant `knowingly . . . possess[ed] . . . any visual depiction in which a
minor is engaged in exploitive exhibition or other sexual conduct.’ `Possession
may be actual or constructive.’ State v. Gonsalves, 231 Ariz. 521, 297
P.3d 927 (Arizona Court of Appeals 2013). . . . Constructive possession exists
when the defendant has either dominion or control over the contraband itself or
the place where the exploitative materials are found. See State v.
Teagle, 217 Ariz. 17, 170 P.3d 266 (Arizona Court of Appeals 2007).
The circumstances must be such that a
jury can reasonably infer that the defendant had knowledge of the contraband's
presence. State v.. Villavicencio, 108 Ariz. 518, 502 P.2d
1337 (Arizona Supreme Court 1972). The state may prove constructive possession
through direct or circumstantial evidence. evidence. State v. Gonsalves,
supra. . . . (child pornography
found in temporary internet folders, together with history of searches
associated with child pornography, sufficient to show defendant knowingly
received images).
State v. Hall, supra.
The Court of Appeals then explains that after
J. confronted Hall about the
exploitative images, but before police seized his computer, Hall reinstalled
his computer's operating system, effectively wiping out all of its files. The
three videos he was convicted of knowingly possessing were found in the
`unallocated space’ of his hard drive. Unallocated space is space on a hard
drive that contains deleted data, usually emptied from the operating system's
trash or recycle bin folder. The examiner searched this area using specially
designed forensic software. Allocated space, on the other hand, is the active
space used to store all documents accessible to the user, such as user-created
folders, pictures, videos, or Word documents.
A forensic examination of Hall's
computer partially recreated the file system as it existed in the allocated
space before he reinstalled the operating system. The examiner determined that the
three videos Hall was convicted of possessing had been located in a
user-created folder on the allocated portion of the hard drive before the
operating system was reinstalled.
Additionally, the video viewing
software bought by Hall and installed on the computer had been set to
automatically scan that folder for content, enabling the user to quickly select
and view those videos from within the program; this setting was manually set up
by a user. The examiner also was able to retrieve the `modified’ dates
associated with each video, which were October 3, August 25, and June 30, 2009.
The `modified’ date indicates some manual action regarding the file was
undertaken by a user, such as editing, saving, or renaming the file.
State v. Hall, supra.
The court went on to note that Hall
told police that the computer was his
and that only he knew the password. J. testified that Hall occasionally allowed
her to use his computer, but that he monitored her whenever she did, she did
not know the password, and could not access the computer without his
assistance. She further testified she had seen two titles strongly suggestive
of child pornography on the history of the media player. The web browser
history confirmed Hall was the main user of the computer.
And Hall reinstalled his operating
system hours after being accused of watching child pornography by J., which is
circumstantial evidence suggesting he may have done so to try to destroy
evidence of his activity.
State v. Hall, supra.
The Court of Appeals therefore found that
viewing the evidence in the light most
favorable to sustaining the verdicts, substantial evidence exists from which a
reasonable jury could conclude that Hall knowingly possessed the videos on his
computer. See State v. Ramsey, supra. . . . Accordingly, the trial court did not err in
denying Hall's Rule 20 motion based on insufficient evidence.
State v. Hall, supra.
Hall, however, claimed his case was similar to U.S. v. Flyer, 633 F.3d 911 (U.S. Court of Appeals for the 9th Circuit 2011), in which Flyer’s computer was
seized after the
Federal Bureau of Investigation
determined exploitative photographs shared over the internet originated from
his computer. U.S. v. Flyer, supra. The indictment charged Flyer,
in relevant part, with possession of child pornography “on or about April 13,
2004,” the same day as the seizure. Id.
The images pertinent to that particular charge were found in the “unallocated
space” of Flyer's hard drive when it was seized. Id.
A forensic analysis could not determine
when the files had been created, accessed, or deleted by the user. Id. The
government conceded it did not present any evidence that Flyer knew the files
were on the unallocated space of the computer or that he possessed the forensic
software required to access the files. Id. The court reversed
Flyer's conviction on that count because `[n]o evidence indicated that on or
about April 13, 2004, Flyer could recover or view any of the charged images in
unallocated space or that he even knew of their presence there.’ Id.
State v. Hall, supra.
The Court of Appeals, though, found that the facts in this
case
are distinguishable from Flyer.
Hall's indictment states he knowingly possessed the videos between June 30,
2009 and November 1, 2009. Although the forensic examiner in Flyer was
unable to determine when the images were created, here, the examiner was able
to determine the videos were created, modified, and accessible to Hall during
the dates listed in the indictment. Thus, unlike Flyer, the
state in this case was able to show that, during the time listed in the
indictment, Hall was able to `exercise dominion or control’ over the
exploitative videos. See § 13–105(34).
State v. Hall, supra.
But Hall went on to argue that
`there is no evidence to indicate that
the possession occurred during the time periods alleged in the indictment’ due
to a fourteen-minute discrepancy in the time stamp of the computer's hard drive
between the first and second forensic examination. But the examiner explained
the discrepancy likely was due to the two years in between the examinations,
which allowed the clock to catch up during that time.
More importantly, he also testified
that the actual dates were accurate during both examinations. Hall does not explain
why the difference in precise time would necessarily mean the actual recorded
dates also were inaccurate. Consequently, the fourteen-minute discrepancy does
not support Hall's argument.
State v. Hall, supra.
Hall, though, also argued that the facts in U.S. v. Kuchinski, 469 F.3d (U.S. Court
of Appeals for the 9th Circuit 2006), were
analogous to his case. There, the
Ninth Circuit held that a court could not use exploitative images recovered
from the temporary cache folder of a computer for sentencing purposes without
evidence the defendant had tried to access the cache files or knew of their
existence. U.S. v. Kuchinski, supra. The cache folder contains
images downloaded automatically whenever a user visits an internet site, and
saves those images without any action by the computer user. Id.
Hall similarly relies on Jensen for
his argument that, absent evidence he had actively searched for child
pornography on the internet, insufficient evidence supported his conviction. In
that case, the defendant was convicted of sexual exploitation of a minor after
exploitative images were found on the defendant's computer in the temporary
cache folder. State v. Jensen, 217
Ariz. 345, 173 P. 3d 1046 (Arizona Court of Appeals 2008).
On appeal, the court found sufficient
evidence supported the conviction regardless of whether Jensen was aware the
images were saved to the cache folder because `he actively searched for those
types of images on the computer over an extended period of time, resulting in
nearly 25,000 hits for websites containing certain key phrases and combinations
of words often associated with child pornography and exploitation of minors.’ Id.
Thus, the court determined, `Jensen's knowledge of receipt of illegal
pornography is implicit in his intentional searches for child pornography.’ Id.
State v. Hall, supra.
The Court of Appeals was not convinced, explaining that in
this case,
unlike the images at issue in Kuchinski and Jensen, the
videos Hall was convicted of possessing were not found in the cache folder. In
fact, Hall was acquitted of the charges related to exploitative images found in
his computer's cache folder. The videos, on the other hand, had been located in
a user-created folder; one which had been manually selected by a user to
provide content for the video viewing program. And the forensic examiner was
able to determine the videos' `modified’ dates, indicating a user had taken
some affirmative action regarding those files. These differences make the
reasoning of Kuchinksi and Jensen inapplicable
to Hall's case.
State v. Hall, supra.
Finally, Hall argued that the fact
he deleted the videos was insufficient
to show he knowingly possessed them. He similarly contends that J.'s testimony
that she thought she saw him viewing an exploitative video, but was unsure, was
insufficient to support the jury's verdict. `No particular piece of evidence,
however, is required as a prerequisite for sufficiency.’ State v.
Fulminante, 193 Ariz. 485, 975 P.2d 75 (Arizona Supreme Court1999) (elements
of offense must be established beyond a reasonable doubt, but `each supporting
fact need not be’).
Rather, this court reviews the entire
record in the light most favorable to sustaining the verdicts to determine if a
`reasonable person could conclude, beyond a reasonable doubt, that [Hall] was
the perpetrator.’ State v. Fulminante,
supra. . . . [S]ubstantial evidence, other than Hall's deletion of the
files and J.'s testimony, supports the jury's verdicts. And . . . Hall had the
opportunity to cross-examine J. and draw her credibility into question.
It was the jury's task to weigh the
evidence, resolve any conflicts, and assess the credibility of the witnesses,
and we will not re-weigh the evidence on appeal. State v. Cid, 181
Ariz. 496, 892 P.2d 216 (Arizona Court of Appeals 1995) Thus, in light of the
substantial evidence supporting the jury's verdicts, we reject this argument.
State v. Hall, supra.
For these and other reasons, the Court of Appeals affirmed
Hall’s convictions and sentences. State
v. Hall, supra.
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