Friday, March 25, 2016

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.

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