This post examines a recent opinion from the Court of Appeals of Virginia, Richmond: Kobman v. Commonwealth, 65 Va. App. 304
(2015).
The court begins its opinion by explaining that
Robert Jeffrey Kobman, appellant,
appeals fifty-four convictions of possessing child pornography, in violation of
Code § 18.2–374.1:1. Appellant argues
the convictions should be reversed because 1) there was insufficient evidence
to show he violated Code § 18.2–374.1:1; 2), the evidence did not conform with the
statute in that digital images were not found on his computers, but rather on
damaged files and data; and 3) the statute is constitutionally invalid for vagueness.
Kobman v. Commonwealth,
supra.
As courts usually do, the Court of Appeals begins the
opinion by explaining how, and why, the prosecution arose:
Upon speaking with [Kobman’s] wife,
Investigator Brian Seale obtained a search warrant for [his] residence to look
for evidence of child pornography. While executing the search warrant that same
day, [Kobman] stated to a female officer that they would find what they were
looking for in the search warrant `in the nightstand and the pink file cabinet
and in the computer.’ Investigators seized media cards found in the nightstand
and file cabinet, a desktop computer, and a laptop computer. They also found
personal lubricating gel and disposable napkins by the desktop computer.
Nine of the pornographic photographs
were in the desktop computer's recycle bin for the user account named `Kobman.’
Forty-two of the pornographic pictures were in the desktop computer's
unallocated space. The laptop computer contained three pornographic photographs
in its unallocated space. The school, where [Kobman] was employed, specifically
issued the laptop computer to him immediately after they purchased it new.
An investigator retrieved the
photographs in the unallocated space of both computers by downloading
specialized, forensic, software designed to restore deleted and damaged data
that is not otherwise accessible to the computer's user. The investigator
testified that files and data in the unallocated space of a computer are
`invisible’ to the computer's operating system and inaccessible to the user
unless the specialized software is downloaded on the computer. Deleted files in
the recycle bin, however, are accessible to the user and can readily be
restored.
Kobman v. Commonwealth,
supra.
The Court of Appeals then began its analysis of the
arguments Kobman made on appeal. Kobman v. Commonwealth, supra. The court divided its analysis into two
issues: photographs in unallocated space
and photographs in recycle bin. Kobman v.
Commonwealth, supra.
The court began its analysis of the first issue by
explaining that
[t]he Commonwealth concedes on brief
that the convictions based on the forty-five photographs found in the
unallocated space of both computers should be reversed. In support of its
concession, the Commonwealth asserts that the indictments charged that appellant
possessed the photographs on or about May 19, 2013.
The Commonwealth acknowledges that
other courts have found that without other indicia of knowledge, dominion or
control, the mere presence of such contraband in the unallocated space of the
computer cannot be shown to be in the accused's possession because the material
in the unallocated space cannot be accessed or seen without the forensic
software. See U.S. v. Flyer, 633 F.3d 911 (U.S. Court of Appeals for the 9th Circuit 2011); U.S. v. Moreland, 665 F.3d
137 (U.S. Court of Appeals for the 5th Circuit 2011) (cases concluding
that an accused cannot be convicted of possessing child pornography solely on
evidence of the presence of photographs in unallocated space). [Kobman]
agrees with the Commonwealth's concession.
Kobman v. Commonwealth,
supra.
The court went on to explain that
`While we are not obliged to accept the
Commonwealth's concession of legal error, see Copeland v. Commonwealth, 52
Va. App. 529, 664 S.E.2d 528 (Virginia Court of Appeals 2008), we agree with the
Commonwealth in this case. . . .’ Grant v. Commonwealth, 54
Va. App. 714, 682 S.E.2d 84 (Virginia Court of Appeals 2009). We have
previously held that possession of child pornography found in computers may be
analyzed under familiar principles of constructive possession. Terlecki
v. Commonwealth, 65 Va. App. 13, 772 S.E.2d 777 (Virginia Court of
Appeals 2015) (citing Kromer v. Commonwealth, 45 Va. App.
812, 613 S.E.2d 871 (Virginia Court of Appeals 2005)).
`In order to convict a person of illegal
possession of contraband, “proof of actual possession is not required; proof of
constructive possession will suffice.”’ Kromer v. Commonwealth, supra (quoting Maye
v. Commonwealth, 44 Va. App. 463, 605 S.E.2d 353 (Virginia Court of
Appeals 2004)). To support a conviction based upon constructive possession, “the
Commonwealth must point to evidence of acts, statements, or conduct of the
accused or other facts or circumstances which tend to show that the defendant
was aware of both the presence and character of the [contraband] and that it
was subject to his dominion and control.” Drew v. Commonwealth, 230
Va. 471, 338 S.E.2d 844 (Virginia Supreme Court 1986) (citation omitted).
“Ownership or occupancy of the premises on which the contraband was found is a
circumstance probative of possession.’ Kromer v. Commonwealth, supra (citing Archer
v. Commonwealth, 26 Va. App. 1, 492 S.E.2d 826 (Virginia Court of
Appeals 1997)).”’
Kobman v. Commonwealth,
supra.
The Court of Appeals then outlined its holding in the case,
explaining that
[h]ere, the Commonwealth concedes there
was no evidence that [Kobman] was aware of, or exercised dominion and control
over, the forty-five photographs found in the unallocated space of the
computers. We agree. No evidence established [he] had access to or used the
required forensic software necessary to retrieve the deleted photographs.
Further, no evidence showed other indicia of knowledge, dominion, or control of
the forty-five photographs found in the unallocated space on the specific date
of the indictments. While the evidence may suggest [Kobman] at one time
possessed the photographs in the unallocated space, there was no evidence that
he had dominion or control of them on or about May 19, 2013, as the indictments
charged.
Accordingly, we reverse the forty-five
convictions of possessing child pornography related to the photographs
retrieved from the unallocated space of the laptop and desktop computers.
Kobman v. Commonwealth,
supra.
The Court of Appeals then took up the issue of the
photographs found in the recycle bin, noting that Kobman’s
second and third assignments of error
challenge the definition of a digital image, as used in the statute, and the
constitutionality of the statute. [His] arguments in support of these assigned
errors reference only the photographs retrieved from the unallocated space of
the computers. As we reversed those convictions, we need only consider [Kobman’s]
first assignment of error challenging the sufficiency of the evidence to prove
he was in possession of child pornography with regard to the nine photographs
found in the recycle bin.
Kobman v. Commonwealth,
supra.
The court went on to explain that
[w]e again employ familiar principles
of constructive possession and determine that there was sufficient evidence to
support the trial court's determination that [Kobman] possessed the nine images
found in the recycle bin on or about May 19, 2013. In support of [his] sufficiency
argument, he advances several theories of defense.
First, [Kobman] claims there was no
direct evidence that he was in actual possession of the images; no one could
testify that they saw him with the photographs. As mentioned previously,
the Commonwealth can prove possession of electronic images through evidence of
constructive possession. Terlecki v. Commonwealth, supra.
Second, [Kobman] claims he did not make
any admissions of possessing the photographs. [He] asserts that when he told
the police they could find what they were looking for he was referring to a
`first search warrant’ that referenced only a search for computers and digital
data storage devices, not child pornography. [Kobman] claims there was a second
search warrant issued at a later point in time that specifically addressed the
search for child pornography.
The record does not support this claim.
The record does not contain copies of any search warrants. However, the
testimony indicates Seale obtained a search warrant after speaking with
appellant's wife and he executed the warrant the same day. His testimony
indicates the `search warrant was issued in relation to an offense of possession
of child pornography’ and he read the warrant to [Kobman]. During the course of
the search, another officer went to the police car where [Kobman] was detained
and [he] made the statements to her that the police could find what they were
looking for `in the nightstand and the pink file cabinet and in the computer.’
When asked what he meant, [Kobman]
stated he was referring to the content of the search warrant, which by Seale's
testimony, related to child pornography. The trial court found that [he] was
referencing the contraband found `in the computer.’ The record supports that
finding.
Kobman v. Commonwealth,
supra.
The Court of Appeals then noted that Kobman
also advanced theories of innocence,
including the possibility of other people having used the computer and the
presence of viruses or websites that unknowingly placed images on the computer.
The evidence proved that the recycle bin was associated with the user account
named `Kobman.’
Expert testimony established that
computer users can access and control files placed by the user into the recycle
bin. [Kobman] made statements indicating what the police were looking for, as
reflected in the search warrant, could be found `in the computer.’
[Kobman’s] statement indicated his
guilty knowledge. Further, police found the lubricating gel and napkins in
front of the computer, evidence of [his] state of mind and intent. Finally,
although the Commonwealth could not prove [Kobman] possessed the images found
in the unallocated spaces of the computers, their presence nevertheless was a
circumstance probative of his possession of the other images.
Notably, the school specifically
assigned the laptop computer to [him] after the school purchased it brand new.
That both computers had pornographic images in the unallocated spaces
established a greater likelihood that [Kobman], not a virus, website, or other
family member, put the child pornography on the desktop computer found in the
recycle bin.
This evidence, considered in its
entirety, supported the trial court's finding that [Kobman] was aware of the
presence of the nine illicit photographs in the recycle bin and that he
exercised dominion and control over the contraband. Accordingly, we affirm the
nine convictions for possession of the child pornography found in the recycle
bin of the computer.
Kobman v. Commonwealth,
supra.
The court therefore went on to hold that, since it found
insufficient evidence to support
possession of the photographs found in the unallocated spaces of the desktop
and laptop computers, we reverse forty-five convictions.
However, the evidence supports the
trial court's finding with regard to the nine photographs found in the recycle
bin of the computer. Accordingly, we reverse the trial court, in part, and
dismiss the forty-five convictions noted above, and affirm the trial court's
judgment of conviction on nine counts of possession of child pornography.
Kobman v. Commonwealth,
supra.
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