The U.S. Secret Service, “Fraudulent Possession of Identifying Information” and the Laptops

This post examines a recent opinion from the Court of Appeals of Texas – Houston:  Minassian v. State, 2016 WL 1054719 (2016).  The court begins by explaining that a

grand jury indicted Arkadi Minassian for the offense of fraudulent possession of identifying information. See TEX. PENAL CODEANN. § 32.51 (West Supp. 2013). Minassian moved to suppress the evidence that law enforcement seized at the time of his arrest, contesting both the lawfulness of that arrest and the search of (1) the white Nissan Armada in which he was traveling at the time of his arrest, and (2) two laptop computers found within the Nissan. The trial court denied the motion. Minassian then pleaded guilty, and the trial court assessed his punishment at thirty years' confinement. . . .

Minassian v. State, supra.

The court went on to outline the facts that led to Minassian’s being charged with, and convicted of, the offenses outlined above:

The United States Secret Service began investigating an organized crime ring that placed `skimmers,’ or devices that capture credit information and permit it to be wirelessly downloaded onto a nearby laptop computer, on gas pumps at gas stations in the Dallas area. Investigators suspected that Minassian was a participant in the scheme. A confidential informant notified officers that Minassian planned to travel from Dallas to Houston in connection with the scheme. The day before Minassian's trip, members of the Houston Police Department's regional interagency task force on fraud received an alert that four skimmers had been found on gas pumps at a Valero gas station on Beamer Road in Houston. Special Agent Charles Hutchins, Jr., with the United States Secret Service in its Houston office, confirmed that the skimmers discovered in Houston matched the description of ones seized in connection with a Dallas investigation.

On the day that Minassian's plane was due to arrive in Houston, a Valero technician discovered four additional skimmers at another Houston-area gas station, on Bay Area Boulevard in Clear Lake. The technician notified the Secret Service's Houston Field Office of his finding.

Meanwhile, task force members began surveillance of Minassian when he arrived at George Bush Intercontinental Airport. From the airport, Minassian and another man drove to the Valero gas station on Bay Area Boulevard. Neither he nor the driver attempted to pump gas. They departed from the gas station a few minutes later. Minassian and the man then drove to the Valero gas station on Beamer Road. Officers observed the vehicle stop at a gas station pump, but again, neither Minassian nor the driver attempted to pump gas.

Officers arrested Minassian and the driver and searched the vehicle. An open and powered-on laptop sat in the passenger-seat area. Police seized a second laptop, two GPS devices, six universal keys for gas pumps, several cell phones, double-sided tape, two thumb drives, and a USB radio receiver/transmitter device. Minassian possessed two different California Driver's licenses, one with his name and photo, and a second one with the name `Ashot Aslanian’ and Minassian's photo. The American Airlines ticket stubs in Minassian's possession showed a flight ticketed to Ashot Aslanian.

A Secret Service agent searched the laptops at the scene. In that search, the agent discovered about 10,000 credit card numbers and the names associated with them. Six days later, a federal magistrate issued a warrant for the further search of the laptops. The State alleged that this further search revealed 38,000 additional names and identifying information.

Minassian v. State, supra.  As Wikipedia explains, the U.S. Secret Service has

two distinct areas of responsibility: 

• Financial Crimes, covering missions such as prevention and investigation of counterfeit U.S. currency, U.S. treasury securities, and investigation of major fraud.
• Protection, which entails ensuring the safety of current and former national leaders and their families, such as the President, past Presidents, Vice Presidents, presidential candidates, visiting heads of state, and foreign embassies.

Minassian responded to his arrest and the search of the vehicle by moving to suppress evidence the government obtained as a result of the events outlined above.  Minassian v. State, supra.  The trial court judge held a hearing on the motion and at that hearing,

neither Minassian nor the State introduced testimony from live witnesses, but the trial court admitted without objection an affidavit from Special Agent Hutchins as well as a copy of the federal warrant and color copies of the two different California driver's licenses. In the affidavit, Hutchins averred in part:

2. This case originated on 03/25/11, when I was contacted by Special Agent (SA) Troy Saria, United States Secret Service (USSS), Dallas Field Office, regarding an on-going case in their district involving gas pump skimmers. Through his investigation, SA Saria determined Minassian is involved in an organized crime ring responsible for distributing highly sophisticated gas pump skimmers to several cities and downloading the credit card numbers, initially thought to be through Bluetooth, but later determined to be via Zigbee Radio technologies. The device works in the following manner: The skimmer is installed in a gas pump and the user can download its contents (credit card name and account number) from a laptop within a 100 meter range. Bluetooth devices are discoverable on wireless networks, whereas Zigbee Radio technologies are not. SA Sarria stated he received information that Minassian would be traveling from Dallas, TX to Houston, TX, on 03/29/11, and departing on 03/30/11. SA Sarria stated Minassian was traveling under the alias Ashot Aslanyan.

3. On 03/28/11, Sgt. Gorski, HPD and Houston Area Fraud Task Force (HAFTF) member, was notified 4 skimmers were found in 4 different gas pumps at a Valero gas station located at 11499 Beamer Rd., Houston, TX 77089. Sgt. Gorski, SA Russell Sparks, and I met with Valero technician James Henderson and observed the gas pump skimmers in 4 different pumps. The skimmers are described as a black hard plaster square block with connection cables to the card reader and key pad of the gas pump attached to the pump with double sided tape. Each skimmer was labeled with a name believed to be a city. I confirmed with SA Sarria the description of these skimmers matched the skimmers seized in Dallas throughout their investigation.

4. On 03/29/11, Valero technician James Henderson notified the USSS Houston Field Office that he conducted an inspection of another Valero gas station, located at 2404 Bay Area Blvd., Clear Lake, TX 77058. Henderson discovered 4 additional skimmers at 4 separate gas pumps at this Valero gas station. All skimmers are in the custody of the USSS.

5. Continuing on 03/29/11, members of the HAFTF conducted surveillance of Minassian upon his arrival into Bush Intercontinental Airport. Minassian departed the airport riding in the passenger seat of a white Nissan Armada, California License Plate (LP) 5GRC174, registered to Arvin Mehrabian. Minassian and the driver, later determined to be Arin Mehrabian, drove directly to the Valero gas station, located at 2404 Bay Blvd. Neither the driver nor the passenger attempted to get gas, and approximately 2–3 minutes later, the Nissan Armada departed the scene in an erratic behavior and at a high rate of speed. Mobile surveillance was discontinued.

6. Continuing on this date, members of the HAFTF conducted stationary surveillance at the Valero gas station, located at 11499 Beamer Rd. The Nissan Armada, LP 5GRC74, was observed driving up to the gas station pump and again neither the driver, nor the passenger, attempted to pump gas. Members of the HAFTF arrested Minassian and Meharbian without incident. Search incident to arrest revealed an open, powered on, laptop in the passenger seat area, an additional laptop, 2 GPS devices, 6 universal keys for gas pumps, several cell phones, double sided tape, 2 thumb drives, and a USB radio receiver/transmitter device. Mehrabian also possessed notebook paper containing a list of addresses, including the addresses to both gas stations which contained the skimmers. Due to the risk of losing the data stored on the computers, the laptops were immediately examined by SA Sparks. Approximately 10,000 credit card numbers and names associated with these numbers were discovered. Efforts are on-going to examine the 8 skimmers found at the aforementioned gas pumps.

Minassian v. State, supra. 

The opinion goes on to explain that after the hearing was over, the judge

denied Minassian's motion to suppress the evidence seized in connection with his arrest. Minassian subsequently pleaded guilty. The trial court admonished him about the potential range of punishment and other consequences of his plea; it then accepted Minassian's plea and assessed his punishment at thirty years' confinement.

Minassian v. State, supra. 

Minassian appealed his conviction, arguing, first, that

law enforcement lacked probable cause to arrest him and therefore violated his constitutional right to be free of unreasonable seizures. See Brown v. State, 481 S.W.2d 106, 109 (Texas Criminal Court of Appeals 1972) (probable cause is a prerequisite to warrantless arrest). He argues that he was not in a suspicious place when he was taken into custody and exigent circumstances did not require his arrest without first obtaining a warrant. See TEX.CODECRIM. PROC. ANN. art. 14.03(a)(1) (West Supp. 2015) (warrantless arrest permitted when person is found in a suspicious place under circumstances that reasonably show he is guilty of a felony); Swain v. State, 181 S.W.3d 359, 366 (Texas Criminal Court of Appeals 2005) (warrantless arrest under Section 14.03(a)(1) requires showing of exigent circumstances). . . .

Minassian v. State, supra. 

The appellate court then took up Minassian’s argument concerning probable cause.  Minassian v. State, supra.  It began by explaining that probable cause for an arrest

exists when the totality of the circumstances show that law enforcement has `reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense.' Guzman v. State, 955 S.W.2d 85, 87 (Texas Criminal Court of Appeals 1997). While probable cause requires `a relatively high level of suspicion,; it is `far short of a preponderance of the evidence standard.’ Baldwin v. State, 278 S.W.3d 367 (Texas Criminal Court of Appeals 2009). . . . And it requires `far less evidence’ than is necessary to support a finding under a preponderance of the evidence. Guzman v. State, supra. Under this standard, information from a confidential informant that has been corroborated through independent investigation by law enforcement may supply probable cause for an arrest. See Angulo v. State, 727 S.W.2d 276, 278–80 (Texas Criminal Court of Appeals 1987).

Minassian v. State, supra. 

The Court of Appeals then took up the specifics of Minassian’s arguments on appeal, noting, first, that he

contends his arrest resulted from a confidential informant's tip alone without evidence that the informant was credible and reliable. See Lowery v. State, 843 S.W.2d 136 (Texas Court of Appeals -- Dallas 1992) (probable cause lacking where information supplied by informant was not shown to be reliable or credible). Thus, he contends, the trial court erred in denying his motion to suppress.

But the record shows that Minassian's arrest was not based solely on an informant's tip. The informant told law enforcement that Minassian would fly from Dallas to Houston on a particular date. The accuracy of the informant's information was verified when Minassian traveled to Houston on the day in question, using an assumed name and fake driver's license. There, law enforcement observed Minassian travel directly from the airport to a gas station, and then later observed him at another gas station. Officers previously had determined that skimmers like those discovered in the Dallas area had been installed in pumps at both of these gas stations. Minassian and his companion drove to both of these stations directly from the airport; neither one attempted to pump gas at either gas station.

The information from a confidential informant in the Dallas area thus was independently corroborated by firsthand surveillance of Minassian's activities by law enforcement in the Houston area. Probable cause may arise from such a combination of sources.  sources. See Angulo v. State, 727 S.W.2d 276, 278–80 (Texas Court of Criminal Appeals 1987) (anonymous tip with independent police corroboration and surveillance based on prior investigation provided probable cause). Accordingly, the trial court acted within its discretion in denying Minassian's motion to suppress on this ground.

Minassian v. State, supra. 

The court then took up Minassian’s second argument with regard to probable cause, explaining that,

[i]n addition to probable cause, law enforcement officers also must have statutory authorization to make a warrantless arrest. Parker v. State, 206 S.W.3d 593, 596–97 (Texas Court of Criminal Appeals 2006). Section 14.03(a)(1) of the Texas Code of Criminal Procedure authorizes law enforcement to arrest “persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony ... or are about to commit some offense against the laws.” This section requires “the legal equivalent of constitutional probable cause.” Amores v. State, 816 S.W.2d 407, 413 (Texas Court of Criminal Appeals 1991).

Places seldom, if ever, are suspicious in and of themselves. Dyar v. State, 125 S.W.3d 460 (Texas Court of Criminal Appeals 2003). Instead, whether a given place is suspicious requires a fact-specific analysis and turns on the totality of the circumstances. Dyar v. State, supra. The proper inquiry focuses not on whether a particular activity is innocent or criminal standing alone, but rather on the degree of suspicion that the activity engenders when viewed in the totality of the circumstances. State v. Guzman, supra; Hall v. State, 795 S.W.2d 195, 197 (Texas Court of Criminal Appeals 1990) (per curiam). Innocent activities can provide probable cause when they are coupled with prior knowledge by law enforcement that indicates a criminal offense is occurring. Stull v. State, 772 S.W.2d 449, 451–52 (Texas Court of Criminal Appeals 1989). With that knowledge, a place `may become suspicious’ and raise a reasonable belief that the person has committed a crime.  Swain v. State, 181 S.W.3d 359, 366 (Texas Court of Criminal Appeals 2005); see also Goldberg v. State, 95 S.W.3d 345 (Texas Court of Appeals--Houston [1st Dist.] 2002). The same facts that support a finding of probable cause may also support a finding that a defendant was in a suspicious place. place. E.g., Dyar v. State, supra. . . .

Minassian v. State, supra. 

The Court of Appeals then went on to announce its ruling on Minassia’s argument regarding probable cause:

The facts in this case support a finding that the police arrested Minassian in a suspicious place under suspicious circumstances, i.e., upon leaving the second of two minutes-long visits to gas stations with skimmers like the ones discovered in Dallas, and without attempting to purchase gas at either location. Minassian argues that traveling to the two Houston-area gas stations is as consistent with innocent activity as it is with criminal conduct.  See Torres v. State, 868 S.W.2d 798, 802-803(1993) (probable cause does not exist when a defendant's activities are as consistent with innocent conduct as criminal conduct). He posits, for example, that he could have visited a gas station to look at a map or GPS.

Minassian's argument is tenable only if one considers his gas-station visits in isolation from the remainder of the record, rather than in context. Law enforcement had identified the two stations that Minassian visited as locations at which skimmers had been installed, confirmed that these skimmers were of the same type as those associated with an organized crime ring's activities in the Dallas area, suspected that Minassian was a member of this ring, and learned that he was travelling from Dallas to Houston in apparent furtherance of the ring's scheme. Law enforcement surveilled Minassian when he arrived in Houston, and observed that he went directly to one of the two stations at issue but made no attempt to pump gas. He later went to the second station and again made no attempt to pump gas.

Taken as a whole, the facts are not as consistent with innocent activity as criminal conduct, and they support a finding that Minassian was arrested in a suspicious place under circumstances that raised a reasonable belief that he had committed a crime. See State v. Dyar, supra (a place may become suspicious when circumstances raise a reasonable belief that a person has committed a crime there); Hall v. State, supra (the proper inquiry is not limited to whether the actual activity observed is innocent or criminal but instead concerns the degree of suspicion reasonably aroused by the observed activity); Lunde v. State, 736 S.W.2d 665 (Texas Court of Criminal Appeals 1987) (holding that another statutory provision authorizing warrantless arrest was satisfied despite that fact that law enforcement did not observe overtly criminal conduct). Thus, the trial court did not abuse its discretion in denying the motion to suppress on this ground.

Minassian v. State, supra. 

It then addressed Minassian’s argument concerning “exigent circumstances”, noting that

[s]o long as probable cause to make the arrest exists, a warrantless felony arrest made in a public place need not be supported by exigent circumstances in order to pass constitutional muster. Milton v. State, 549 S.W.2d 190 (Texas Court of Criminal Appeals 1977). Minassian contends without elaboration that no exigency required his immediate arrest.

Minassian v. State, supra. 

The court also explained that

Hutchins' affidavit permits a reasonable inference that Minassian and his driver were pulled over and arrested at the second gas station or on a nearby roadway. Both of these locations are public places. Accordingly, regardless of any exigency, Minassian's arrest was not constitutionally infirm, because there was probable cause.  Milton v. State, 549 S.W.2d 190 (Texas Court of Criminal Appeals 1977). Section 14.03(a)(1) of the Texas Code of Criminal Procedure, requires exigent circumstances to make a warrantless arrest premised on suspicious activity in a suspicious place. Swain v. State, supra. Even if not in public, the possibility of escape and immediate erasure of any evidence of wrongdoing provides the necessary exigency for an immediate arrest. Coyne v. State, 485 S.W.2d 917 (Texas Court of Criminal Appeals 1972). Thus, the trial court did not abuse its discretion in denying the motion to suppress on this ground.

Minassian v. State, supra. 

Minassian also argued that “law enforcement violated his Fourth Amendment rights when they conducted a search of the laptops found within the vehicle without a warrant.” Minassian v. State, supra.  As Wikipedia explains, the Fourth Amendment has been interpreted to require that law enforcement officers obtain a warrant before they search a place or a thing; as Wikipedia also explains, the Supreme Court has recognized a number of circumstances (“exceptions”) which allow officers to search and/or seize without first obtaining a warrant.

Getting back to the opinion, the Court of Appeals explained that law enforcement

searched the vehicle in which Minassian was a passenger incident to his arrest. See State v. Tercero, 467 S.W.3d 1 (Court of Appeals of Texas – Houston 2015). . . .  We have concluded that the arrest was lawful. The search-incident-to-arrest exception to the warrant requirement, however, does not render an immediate, warrantless search of the laptops found in the car constitutional, and it is this further search that Minassian challenges. 

Minassian v. State, supra. 

The court went on to hold that

[o]ne of the two laptops was discovered in the passenger area of the vehicle in which Minassian was traveling as a passenger, and the other was located elsewhere within the vehicle. In the trial court, Minassian asserted in a footnote to his motion to suppress that the computers `were both personal computers, with personal information, under his control.’ But Minassian did not introduce any evidence in support of this allegation at the suppression hearing. Nor is there any evidence of ownership of the laptops elsewhere in the record. The argument of counsel, as opposed to evidence, is not enough to show standing. Handy v. State, 189 S.W.3d 296, 299 (Texas Court of Criminal Appeals 2006); Calloway v. State,743 S.W.2d 645 (Texas Court of Criminal Appeals 1988). The fact that Minassian was seated near one laptop is not proof of ownership without evidence linking him to it. Rawlings v. Kentucky, 448U.S. 98 (1980).

In sum, Minassian failed to carry his burden to prove a legitimate expectation of privacy in the laptops. We hold that he failed to establish standing to challenge law enforcement's search of them. State v. Granville, 423 S.W.3d 399 (Texas Court of Criminal Appeals 20140.  Accordingly, the trial court did not abuse its discretion in denying Minassian's motion to suppress on this ground. Thus, we do not reach the State's further contention that sufficient exigent circumstances existed for the search.

Minassian v. State, supra. 

You can, if you are interested, read more about the facts in this case in the news stories you can find here, here and here. 

The College Students, the Laptop and Receiving Stolen Property

This post examines a recent opinion from the Court of Appeals of Ohio – 11th District:  State v. Skaggs, 2016 WL 1090816.  The court begins by explaining that Jason Skaggs (“the appellant”)

appeals from the February 10, 2015 judgment of the Lake County Court of Common Pleas, sentencing him for receiving stolen property following a jury trial. For the reasons that follow, we affirm in part, reverse in part, and remand the matter for further proceedings.

State v. Skaggs, supra.

The court, as courts usually do, then summarized the facts that let to the charge and the conviction:

On February 7, 2014, appellant [“Skaggs”] was indicted by the Lake County Grand Jury on one count of receiving stolen property, a felony of the fifth degree, in violation of [Ohio Revised Code] 2913.51(A). Appellant pleaded not guilty and a jury trial commenced on January 20, 2015. The following facts were adduced at trial.

Jake Falter, a student at The Ohio State University in Columbus, testified that he purchased a MacBook Pro laptop computer in 2012 for $1,100.00 on Apple's website and that he used the computer primarily for school and had various notes and papers saved onto the computer's hard drive. After a year of use, the `T’ button became unattached and was no longer fixed onto the computer's keyboard.

On October 11, 2013, Falter left his laptop in the living room of the townhouse where he lived with three other roommates before leaving to go out with friends. He did not notice that his computer was missing until the following Sunday, October 13, when he needed it to work on homework for class. While Falter did not have a password on his computer, he did install a program, `Prey’, that sends a report via electronic mail that gives the location, I.P. address, and other information of a registered device once it is reported stolen on the program's website. When Falter received the report, it indicated that the laptop was located at an address assigned to MicroLink Computer Outlet, a store located in Mentor, Ohio. He contacted the Mentor Police Department that evening, who advised him that he would first have to file a report with the Columbus Police Department, which he did the following day, Monday, October 14, 2015. Falter also provided the police with the computer's serial number, which was labeled on the box the computer came in.

Falter further testified that his father purchased the laptop back from MicroLink a few days later for $275.00. When he was able to look it over after it came back into his possession, there was a different user name on the computer, `Dave Dietz’, but it did not have a password. Some of the documents he had saved onto the computer were also missing.

State v. Skaggs, supra.

The court went on to explain that

Officer Curt Davis of the Mentor Police Department testified that he spoke with Falter on the evening of October 14, 2014. After writing down the information provided by Falter, Officer Davis travelled to MicroLink and spoke with the owner, Ziad Ibrahim. Ibrahim stated that he had purchased the laptop from an individual the previous day at approximately 1:00 in the afternoon that he was able to identify as appellant. Officer Turek, an evidence tech who arrived at the location shortly thereafter, took photos of the computer with the matching serial number. In addition, Officer Davis was provided with all of the business records kept by Ibrahim from his purchasing the laptop from appellant as well as the surveillance footage that had recorded the transaction as it took place.

Ziad Ibrahim testified appellant entered his store and stated that he was interested in selling the MacBook Pro he was holding because he had purchased a new one. After he turned the laptop on to inspect it, appellant entered the password to log on. Ultimately, Ibrahim concluded that the computer was in nice condition and offered to purchase it from Skaggs for $275.00, which he accepted. As per his usual business practice, Ibrahim entered appellant's driver's license information into his computer as well as a description of the MacBook computer. Ibrahim further remarked that, while he did find it unusual that appellant's license indicated that he had a Columbus address, appellant informed him that he had just moved to Cleveland with his girlfriend on Abbey Rd., which Ibrahim notated in his records.

State v. Skaggs, supra.

The opinion goes on to summarize the testimony of several other witnesses:

Sebastian Cassius testified next for the state and identified himself as a Geek Squad manager at Best Buy who oversees various departments within the store. He indicated that Falter did own an Apple MacBook Pro based on information previously provided to him and that, based on the computer's model number, it still had a selling price of $1,099.99 as of January 16, 2015.

Detective Mike Malainy of the Mentor Police Department testified he was approached by Officer Davis in the detective bureau on the evening of October 14, 2013 and was asked if he could assist him in recording a phone call. From the information collected by Officer Davis, Detective Malainy called the number and left a message with appellant's girlfriend for him to call back, which appellant did a few minutes later. Detective Malainy informed appellant that their conversation was being recorded and asked him about how he came across the MacBook Pro computer.

On the recording, appellant informed Detective Malainy that he purchased the laptop from an individual on Saturday morning outside a hotel near Ohio State Route 161 in Columbus for $150.00. Appellant indicated the individual knew the password for the computer and that he was selling the computer in order to buy a new one. Appellant also asked if the laptop was stolen prior to purchasing it, which the individual denied.

Appellant explained to Detective Malainy that, while he had all intentions of keeping the computer, the brakes on his vehicle were starting to fail while travelling to visit a friend in Euclid. As he did not have the money to get the brakes repaired, he sold the computer to MicroLink and used the money from the sale to purchase the parts. Appellant also told the detective he was with two friends who may have witnessed the transaction between him and the other individual at the hotel, but appellant did not provide him with their contact information. And appellant did not provide Detective Malainy with any sales receipts for car parts.

State v. Skaggs, supra.

The opinion then explains that

[w]hen the state rested, the defense made a [Ohio Rules of Criminal Procedure] Rule 29 motion for acquittal, which was denied. A second motion was requested prior to closing arguments, which was also denied. A short time after being released for deliberations, the jury returned a guilty verdict on the sole count in the indictment; it further found that, per the instructions, the property at issue was worth at least $1,000, but no more than $7,500.

State v. Skaggs, supra.

The Court of Appeals goes on to explain that

[a]t appellant's sentencing hearing, the state presented several factors that showed that recidivism would be likely for appellant: he committed the offense at issue a month after being released on bond for a separate criminal case in Franklin County; had a history of juvenile adjudications in addition to having been found guilty for nearly a dozen other offenses as an adult, including possession of stolen property; and had been convicted of drug possession, possession of drug abuse instruments, and paraphernalia since committing this offense. The state also noted appellant was currently serving his sixth prison sentence and recommended that appellant be sentenced to twelve months to be served consecutively to the prison sentence he was currently serving.

Appellant was ultimately sentenced to eleven months, to be served consecutively to his current prison sentence, and restitution in the amount of $275.00, the amount Falter had to pay to get his computer back. 

State v. Skaggs, supra.

Skaggs made three arguments on appeal but this post only examines one, which essentially incorporates Skaggs’ claim that the jury erred when it “returned a verdict of guilty against the manifest weight of the evidence.”  State v. Skaggs, supra.  In other words, Skaggs claimed the evidence did not prove his guilt beyond a reasonable doubt.

The Court of Appeals began its analysis of Skaggs’ argument by explaining that he was

convicted of receiving stolen property, in violation of Ohio Revised Code § 2913.51(A) which required the state to prove, beyond a reasonable doubt, he `receive[d], retaine[d], or dispose[d] of property [belonging to Jake Falter] knowing or having reasonable cause to believe that the property ha[d] been obtained through [the] commission of a theft offense.’

There was no dispute that Falter's computer had been stolen. It was also undisputed that appellant received, retained, and/or disposed of the computer. Appellant's arguments therefore concentrate on whether he had `reasonable cause to believe’ the computer was stolen. Appellant offers various benign explanations relating to the circumstances of his purchase to rebut the state's circumstantial case. In particular, he maintains his purchase of the computer in a `shady’ location, for less than it was worth, with a lack of accessories does not necessarily imply he should be on reasonable notice that it was stolen.

State v. Skaggs, supra.

The Court of Appeals went on to explain that

[c]ircumstantial evidence involves evidence not grounded on actual personal knowledge or observation of the facts in controversy, but of other facts from which inferences are drawn, showing indirectly the facts sought to be established. State v. Nicely, 39 Ohio St.3d 147, 150 (Ohio Supreme Court 1988). An inference is `a conclusion which, by means of data founded upon common experience, natural reason draws from facts which are proven.’ State v. Nevius, 147 Ohio St. 263 (Ohio Supreme Court 1947).

It therefore follows that when circumstantial evidence forms the basis of a conviction, that evidence must establish collateral facts and circumstances, from which the existence of primary facts may be rationally inferred according to common experience. State v. Windle, 2011 11th Dist. Lake No. 2010-L-033, 2011-Ohio-4171. Circumstantial evidence is accorded the same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259 (Ohio Supreme Court 1991), paragraph one of the syllabus.

State v. Skaggs, supra.

The Court of Appeals then analyzed the sufficiency of the evidence presented at Skaggs’ trial:

The jury heard appellant's rebuttal arguments to the state's evidence at trial. The jury, as the sole judge of the weight of the evidence, was free to accept or reject appellant's version of events. See, e.g., State v. Taylor, 11th Dist. Ashtabula No. 93–A–1796, 1994 Ohio App. LEXIS 2655, *5 (Ohio Court of Appeals June 17, 1994). With this in mind, the `shady’ location of the purchase, the lack of accessories, and the relatively-low purchase price provided the jury with a rational and persuasive foundation to support the conclusion appellant had reasonable cause to believe the computer was stolen.

Appellant, however, underscores he performed the same inquiries as Ibrahim to ascertain whether the computer was stolen; to wit, he notes he asked the seller if it was stolen, who purportedly responded in the negative. And, when the seller produced the password, he felt satisfied the computer was not stolen. In the abstract, these factors provide some basis for the conclusion that one could reasonably purchase the computer without serious suspicion or doubt that it was obtained through theft. When considered in light of other surrounding circumstances, however, they do not negate the inference that appellant had reasonable cause to believe the computer was obtained through theft.

First of all, the circumstances surrounding appellant's purchase of the computer and Ibrahim's purchase were different. Appellant purportedly paid only $150 for the computer and the transaction took place, by appellant's admission, in a `shady’ part of a large city. Ibrahim, a business owner who purchases and sells computers, paid $275 after researching what similar models are being sold for on Ebay. He further obtained appellant's identification and recorded his personal information pursuant to his business protocol. Although appellant, like Ibrahim, may have asked his seller whether the computer was stolen, other salient features of the purchases were entirely different.

State v. Skaggs, supra.

The Court of Appeals then began the process of announcing its decision in the case:

And, in any event, the similarities between the inquiries posed by appellant and Ibrahim do not serve to exculpate appellant or undermine the inference that appellant had reasonable cause to believe the computer was stolen. Simply because Ibrahim was not charged in the case does not support the inference that appellant had no reasonable basis to believe the machine was obtained by theft.

Furthermore, there was evidence presented that the computer, while in Falter's possession, was not `password protected.’ There was also evidence adduced at trial that installing a password is not difficult and can be accomplished without any specialized computer training. These points, taken in conjunction with the circumstantial evidence discussed above, demonstrate the evidence militated in favor of and not against a conviction.

Given the circumstances of this case, we conclude there was sufficient, persuasive evidence to support appellant's conviction for receiving stolen property.

State v. Skaggs, supra.

The court therefore affirmed Skaggs’ conviction.  State v. Skaggs, supra.

It did, though, remand the case for resentencing because the trial judge “failed to make the necessary findings at the sentencing hearing.” State v. Skaggs, supra.  The Court of Appeals therefore remanded the case to the trial judge for resentencing. State v. Skaggs, supra. 

The Wife, Child Pornography and “Inadvertence”

This post examines a recent opinion from the Superior Court of Pennsylvania:  Commonwealth v. Woods, 2016 WL 941779 (2016).  The court begins its opinion by explaining that

Appellant, Meri Jane Woods, appeals from the judgment of sentence entered on December 15, 2014, as made final by the denial of Appellant's post-sentence motion on May 19, 2015. We affirm.

Commonwealth v. Woods, supra.

The court went on to quote from the trial court’s summary of the evidence in the case:

On August 14, 2013, [Appellant voluntarily] went to the Pennsylvania State Police, Indiana [Barracks], to complain of her husband's alleged involvement in child pornography. . . .[Appellant] brought a home computer [with her that day, and she claimed that the computer] contained evidence [that] support[ed] her allegations. . . .

[Appellant] met with Corporal John Roche, the Coordinator of the Southwest Computer Crime Task Force, and filled out a six-page written statement. At this meeting, Corporal Roche requested [Appellant's] permission to do a preview examination of the computer and [Appellant] agreed. Once the preview was conducted, images were found on the computer depicting possible child pornography, and [Appellant] was agreeable when Corporal Roche indicated he would need to keep [the computer] as a result [of his findings. The interview ended and Appellant left the barracks.]

[Both Appellant and Corporal Roche characterized the police station interview as `friendly.’ See Appellant's Motion to Suppress. . . . Moreover, Corporal Roche testified: that Appellant `was free to leave at any time’ during the interview; that he never read Appellant Miranda warnings; that, although Appellant's story `seemed unusual,’ Corporal Roche `had no reason to disbelieve the main portion of [Appellant's] child pornography accusations’ against her husband; and that, during the interview, he `had no belief that criminal activity by [Appellant] had occurred.’ . . .

Following a [later,] full [forensic] review [of the computer,] Corporal Roche noted that [the] times when the images were created or accessed were inconsistent with [the] time periods that [Appellant's] husband would have had access to the computer because they occurred after he had moved from the residence. . . .

On December 19, 2013, the Commonwealth charged Appellant with sexual abuse of children and unsworn falsification to authorities.

Commonwealth v. Woods, supra. (As Wikipedia explains, “Indiana” is, among other things, a town in Pennsylvania which is the county seat of Indiana County, which is also a county in Pennsylvania.)

The opinion describes goes on to note that, at one point in the conversations Corporal Roche had with Ms. Woods, she said

she had been having difficulties and problems with her husband, Matthew Woods. And she essentially was bringing me the computer because she wanted me to take a look at what was on it because she wanted to tell me that there was child pornography images on the computer and that they were put there by her husband, Matthew Woods.

Commonwealth v. Woods, supra.

The opinion also explains that, as noted above, on

December 19, 2013, the Commonwealth charged [Woods] with sexual abuse of children and unsworn falsification to authorities. With respect to the sexual abuse of children charge, the Commonwealth's later filed Information declared:

COUNT 1: Child Pornography—(F3)

Offense Date: 08/14/13 18 § 6312 §§ D1

Knowingly possessed or controlled a book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction, or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act, to wit, the defendant did possess via a computer system/storage medium, files that depicted child pornography, an example of one of these is a file [name], `F7pzSGKQdk[1].jpg’, which is a picture of an approximately 9–11 year old female, providing oral copulation to an adult male penis. The image was written to the internal hard disk drive on the defendant's computer on 8/11/13.

Commonwealth v. Woods, supra.

The Superior Court also pointed out that, during Woods’ trial, Corporal Roche

provided testimony regarding his experience with the Pennsylvania State Police, and in particular, his training and experience in computer forensics. Corporal Roche testified that he received training from EnCase, and that he is an EnCase certified examiner. . . .

With regard to determining `date stamps’ or `time stamps’ relevant to this matter, Corporal Roche testified that he first used the EnCase program to search the hard drive of the computer brought to the police barracks by [Appellant]. The gallery function of the EnCase software allowed Corporal Roche to search through a thumbnail gallery of photographs in a timely fashion. Corporal Roche testified that he identified 43 images that he believed depicted images of child pornography. Corporal Roche then used EnCase to create [an] `exact bit for bit copy of every piece of information on the [computer's] hard drive.’ [Id. at 50]. Corporal Roche then was able to examine each image to determine when it was placed on the computer.

Corporal Roche testified that the created date and time for `[j]ust about all of the images’ was `August 11, 2013, between the times of about [nine] o'clock and 12 o'clock a.m.’ [Id. at 51]. He then testified that the created date and time `is the absolute most accurate time to use of when it was first put there.’ [Id.] Corporal Roche [testified] that `the original created date and time will always stay the same on the host computer.’ [Id. at 52]. In conclusion, Corporal Roche [testified] that he [was] `[a]bsolutely scientifically certain that the dates and times are that which was when the computer was used to look at these images and download these images depicting child pornography.’ [Id. at 56]. Moreover, Corporal Roche testified that the images of child pornography on the computer `were all created [and] accessed on or after the period of time that Matthew Woods left the house.’ [Id. at 69].

Corporal Roche then testified that he used the . . . FTK from AccessData as a separate method of determining the created date and time for the pornographic images. Using this forensic tool, and comparing the results to the results reached using EnCase, `[t]he created, the modified, the last accessed, the entry modified, all these dates and times were exactly the same to the hundredths of a second on each and every photograph.’ [Id. at 57].

Commonwealth v. Woods, supra.

The opinion also explains that

[i]n addition to the above evidence, Corporal Roche testified that, in his opinion, the child pornography did not `inadvertently’ appear on Appellant's computer. . . . Rather, Corporal Roche testified: that the child pornography on the computer was the result of `at least [three] hours of searching the internet for these images’ and that `it [was] a fair statement [to say] that on August 11 [, 2013,] between th[e] hours of [nine] and 11, [Appellant] went to th[e child pornography] websites.’ . . .  

Commonwealth v. Woods, supra.

The Superior Court also pointed out that the “jury found Appellant guilty of both sexual abuse of children and unsworn falsification to authorities.” Commonwealth v. Woods, supra. It also explained that, “[o]n December 15, 2014, the trial court sentenced [Woods] to serve a jail term of not less than nine months nor more than two years less one day, followed by two years of probation.”  Commonwealth v. Woods, supra.

Woods appealed, arguing, first, that

although the Commonwealth charged her with violating 18 Pennsylvania Consolidated Statutes § 6312(d)(1), the Commonwealth's Information only quoted a portion of the statute. In particular, Appellant notes, the Information only declared that [she] had `[k]nowingly possessed or controlled’ child pornography. . . . However, § 6312(d)(1) not only criminalizes the knowing `possess[ion] or control[ ]’ of child pornography, but it also criminalizes the `intentional[ ] view[ing]’ of child pornography. 18 Pennsylvania Consolidated Statutes § 6312(d)(1). 

Appellant argues that, since the Information failed to charge her with `intentionally viewing’ child pornography, she could not have been lawfully convicted of this aspect of the crime. . . . Appellant then claims the `Commonwealth presented no competent evidence of [Appellant's] knowing possession or control of the files on or about August 14, 2013’—and that the evidence was thus insufficient to support her conviction for violating § 6312(d)(1). 

Commonwealth v. Woods, supra. 

The Superior Court noted that, in her appeal, Woods

acknowledges that she failed to object to the trial court's jury charge. . . . However, she claims that she still could not have been convicted of `intentionally viewing’ child pornography because `due process does not permit [her to be] convicted of an uncharged classification’ of 18 Pennsylvania Consolidated Statutes § 6312(d)(1). This claim fails. . . .

Commonwealth v. Woods, supra. 

The court went on to explain that in order to

preserve an issue for appellate review, it is axiomatic that the issue must first be raised in the trial court. Pennsylvania Rules of Appellate Procedure Rule 302(a). Indeed, with respect to erroneous jury instructions, our Rules of Criminal Procedure explicitly declare: `[n]o portions of the charge nor omissions from the charge may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate.’ Pennsylvania Rules of Criminal Procedure 647(b).

In the case at bar, Appellant failed to object to the erroneous jury charge and the trial court was thus never given the opportunity to correct its mistake. This results in waiver of the issue, notwithstanding the fact that the error implicated Appellant's due process rights. Certainly, when our Supreme Court eliminated the basic and fundamental error doctrine from our jurisprudence, our high Court anticipated that due process violations would and could be waived on direct appeal. . . .

Thus, since Appellant failed to object to the trial court's jury instruction, Appellant `waived [the] issue regarding the legality of [her] conviction for’ `intentionally viewing’ child pornography. Commonwealth v. Matty, 619 A.2d 1383 (Pennsylvania Superior Court 1993).  Moreover, since Appellant's sufficiency of the evidence claim was logically dependent upon this Court concluding that the defect in the Information precluded her conviction for `intentionally viewing’ child pornography, Appellant's sufficiency of the evidence claim necessarily fails.

Commonwealth v. Woods, supra (emphasis in the original).

The Superior Court also held that Woods’ challenge to the sufficiency of the evidence supporting her conviction also failed “because the evidence was sufficient to prove that [she] `[k]nowingly possessed or controlled’ child pornography.  Commonwealth v. Woods, supra.  The court based that holding, essentially, on the facts outlined above and on the trial judge’s summary of the evidence presented at trial, which included the following:

`Corporal Roche testified that [Appellant] presented herself at the [Pennsylvania] State Police Barracks on August 14, 2013, with the subject computer. Corporal Roche further testified that [Appellant] “was essentially bringing me the computer because she wanted me to take a look at what was on it because she wanted to tell me that there was child pornography images on the computer and that they were put there by her husband, Matthew Woods.”' [N.T. Trial, 8/19/14, at 31].

Finally, with regard to Corporal Roche's opinion about the nature of the images that he found, he stated that he “found in excess of 40 images and specifically 43 images of what I believed depicted child pornography of some sort, whether it be the focal point of the genital area of a person under the age of 18, certainly a prepubescent person or they are engaged in sex of some sort or simulation thereof or masturbation. These would all meet the definition of child pornography. [Id. at 49].’

`Given the testimony of Corporal Roche, and viewing that testimony in the light most favorable to the Commonwealth, it is easy to see how the jury believed that [Appellant] purposely downloaded images of child pornography on the family's computer for the purpose of reporting the presence of the images to the Pennsylvania State Police, and all with the goal of having Matthew Woods, her estranged husband, charged with criminal offenses of a sexual nature. 

By necessity, such a finding means that [Appellant] knowingly, as defined in 18 Pennsylvania Consolidates Statutes Annotated [§ 302(b),] downloaded and possessed images containing child pornography. In other words, [Appellant] was aware of her conduct and the nature of her conduct, because it was her express purpose to download child pornography, possess these images, and take these images to the Pennsylvania State Police; her plan would not [have] work[ed] without these actions.’

Commonwealth v. Woods, supra (emphasis in the original).

The Superior Court therefore held that

the evidence was sufficient to support Appellant's conviction for sexual abuse of children under 18 Pennsylvania Consolidated Statutes Annotated § 6312(d)(1). Appellant's claim to the contrary fails.

Commonwealth v. Woods, supra.  The court therefore affirmed Woods’ conviction and sentence. Commonwealth v. Woods, supra. 

You can, if you are interested, read more about the case and its outcome in the news stories you can find here, here and here.