ComputerForensicsDigest.com

Brief Summary: Defendant's girlfriend allegedly discovered child pornography on computer she shared with defendant. All but one of the images were retrieved from the Internet cache. Although defendant admitted to having viewed and saved child pornography in the past, he denied any knowledge of the one valid image presented as evidence. Following his conviction on one count of possession of child pornography, defendant filed an appeal challenging the sufficiency of the evidence.

Facts: Richard Strouse and his girlfriend shared a laptop computer and America Online (AOL) account. One morning, as the girlfriend composed an e-mail message, she noticed two strange icons. When she clicked on the icons, they revealed images of child pornography. She also discovered 88 pornography sites in the "favorite places" list in AOL. She reported her discoveres to the local sheriff's office.

At the request of the police, the girlfriend agreed to wear a body wire to record and transmit a conversation with Strouse. During their talk, Strouse admitted viewing child pornography in the past, but denied any recent activity. The sheriff's department conducted an investigation, but failed to make a mirror image of Strouse's hard drive.

Strouse was charged with seven counts of possession of child pornography, but the trial court dismissed six counts on the grounds that the images in question were old entries in the Internet cache or composite images from website banners. The remaining image was a filed stored somewhere on Strouse's laptop. At trial, Strouse's girlfriend testified regarding what she saw in the image, and identified a printed copy of the image. Strouse denied any knowledge of the image and denied downloading it to the laptop. Nonetheless, Strouse was convicted on the remaining count and sentenced to five years probation as a sexual offender.

Issue(s): Whether the trial court erred by not dismissing the last count or ordering a judgment of acquittal due to the state's failure to produce sufficient evidence to make a prima facie case.

Ruling: The trial court properly denied defendant's motion for judgment of acquittal with respect to the last count of the information.

Rationale: As an initial matter, the District Court of Appeal noted that the testimony of a single witness (such as the girlfriend), if uncontroverted, can be sufficient to sustain a conviction.

The court noted that federal courts have held that "the mere viewing of a child pornographic image does not constitute knowing possession of the image under 18 U.S.C. § 2252A(a)(5)(B). United States v. Perez, 247 F. Supp. 2d 459, 484 n. 12 (S.D.N.Y. 2003) (citing United States v. Zimmerman, 277 F.3d 426, 435 (3d Cir. 2002)).

In this case, the state showed that Strouse had opportunity to download a child pornography image and by his own admission, was previously interested in child pornography. The court concluded that the presence of the two image icons in either AOL or a photo program was proof that the contested image was actually stored in the laptop, and not merely in the Internet cache. The court also cited to the fact that the girlfriend identified a print-out of the image at trial.