#26354-a-DG

2013 S.D. 95

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
STATE OF SOUTH DAKOTA,                  Plaintiff and Appellee,

      v.

JAMES DUANE RILEY,                      Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                    CUSTER COUNTY, SOUTH DAKOTA

                                 ****

                      THE HONORABLE JEFF W. DAVIS
                                Judge

                                 ****

MARTY J. JACKLEY
Attorney General

TIMOTHY J. BARNAUD
Assistant Attorney General
Pierre, South Dakota                    Attorneys for plaintiff
                                        and appellee.


PAUL R. WINTER
MATTHEW L. SKINNER of
Skinner & Winter, Prof., LLC
Rapid City, South Dakota                Attorneys for defendant
                                        and appellant.


                                 ****
                                        ARGUED ON MARCH 18, 2013
                                        REASSIGNED AUGUST 16, 2013
                                        OPINION FILED 12/18/13
#26354

GILBERSTON, Chief Justice (on reassignment).

[¶1.]         James Riley was convicted by a jury of possessing child pornography in

violation of SDCL 22-24A-3(3) and was sentenced to eight years in the penitentiary.

Riley now appeals his conviction, arguing the evidence was insufficient to establish

he possessed child pornography. We affirm.

                      FACTS AND PROCEDURAL HISTORY

[¶2.]         To combat Internet-based child exploitation and abuse, the South

Dakota Internet Crimes Against Children Task Force (Task Force) conducts

undercover online investigations to identify individuals distributing or possessing

child pornography. Detectives from the Task Force begin their investigation by

using software that populates a list of internet protocol (IP) addresses 1 that recently

possessed visual depictions of child pornography. Detectives then input those IP

addresses into an enhanced version of LimeWire 2 developed by the FBI, known as



1.      “[An] IP address is a unique identifier assigned by an Internet service
        provider . . . to a subscriber that can be used to determine the physical
        location of the subscriber[.]” United States v. Conner, 521 F. App’x 493, 495
        (6th Cir. 2013).

2.      LimeWire is a publicly available peer-to-peer file-sharing program that
        allows users to download a file directly from other users for free. As recently
        explained by the Ninth Circuit:

              LimeWire . . . connect[s] network participants directly and
              allow[s] them to download files from one another. To download
              a file, a LimeWire user opens the application and inputs a
              search term. LimeWire then displays a list of files that match
              the search terms and that are available for download from other
              LimeWire users. When a user downloads a file using the
              LimeWire network, he or she causes a digital copy of a file on
              another user’s computer to be transferred to his or her own
              computer.
                                                                   (continued . . . )
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“enhanced peer-to-peer software” (EP2P). EP2P allows detectives to view and

download files that a particular IP address has available for download because,

unlike LimeWire, which pieces together file fragments from multiple IP addresses

that are currently using the file-sharing program, EP2P is a single-source download

program that limits downloads to a specific IP address.

[¶3.]         Using the special software employed by the Task Force, Detective

Derek Kuchenreuther conducted an undercover investigation on October 20, 2009,

to locate individuals distributing or possessing visual depictions of child

pornography. His search revealed that 79 video files with titles suggestive of child

pornography were being shared through LimeWire by an IP address in Hermosa,

South Dakota. Kuchenreuther downloaded an entire video file (full video) and

confirmed that it contained child pornography. He also downloaded a portion of a

video file (partial video), which did not contain child pornography, but depicted an

adult female removing the pants of a female child. Although the partial video did

not portray child pornography, based on prior child pornography investigations,

Kuchenreuther recognized the video file as one that contained child pornography.

[¶4.]         After serving a subpoena on the Internet service provider,

Kuchenreuther traced the IP address to James Riley’s residence. Based on this



_________________________________
( . . . continued)

        United States v. Flyer, 633 F.3d 911, 913 (9th Cir. 2011) (internal citations
        omitted). By default, LimeWire stores downloaded files in a shared folder
        that is accessible to other LimeWire users. United States v. Budziak, 697
        F.3d 1105, 1108 (9th Cir. 2012).


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information, an agent with the South Dakota Division of Criminal Investigation,

Brent Gromer, applied for and obtained a warrant to search Riley’s residence.

[¶5.]         On January 15, 2010, Gromer and several other investigators executed

the warrant at Riley’s residence. Lori Wenzlick, Riley’s girlfriend, was the only

person home at that time. Wenzlick informed investigators that Riley was out-of-

state, had his computer with him, and would return home around midnight.

Gromer advised Wenzlick that they would return the next day at approximately

6:00 a.m. to execute the search warrant and instructed Wenzlick not to tell Riley.

Riley returned home at approximately 1:00 a.m. on January 16, 2010. Contrary to

Gromer’s instructions, Wenzlick informed Riley that investigators had been at the

residence and that they would be returning at 6:00 a.m.

[¶6.]         At approximately 6:30 a.m., investigators executed a second search

warrant at Riley’s residence. Riley, a former IBM employee of 25 years, was visibly

intoxicated when investigators arrived, but agreed to speak with Gromer. Riley

admitted he used LimeWire to download music, “glanced at” child pornography, and

saw the downloaded portion of the partial video. He denied seeing the full video.

Further, Riley remarked, “[i]t’s gone[,]” when Gromer mentioned that he knew Riley

was sharing 79 video files containing child pornography. 3 However, Riley never

admitted he downloaded, possessed, or purposefully deleted videos of child

pornography. Investigators seized a laptop computer, two thumb drives, a MP3


3.      Riley also stated he “looked at it” and “didn’t know it was illegal to look.” It
        is unclear whether Riley was referring to child or adult pornography when he
        said he “looked at it,” but the record is clear Riley was referring to child
        pornography when he said he “didn’t know it was illegal to look.”


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player, and three DVDs, but did not take a second computer that was also located in

Riley’s residence.

[¶7.]         Investigators completed a forensic analysis of the items seized from

Riley’s residence. No visual depiction of child pornography was found on any of the

items seized by investigators, nor were LimeWire or other peer-to-peer programs

discovered on Riley’s computer.

[¶8.]         In July 2010, a grand jury indicted Riley on two counts of possession of

child pornography in violation of SDCL 22-24A-3(3). Count I alleged possession of

the full video and Count II alleged possession of the partial video.

[¶9.]         A jury trial was held in January 2012. At trial, Kuchenreuther

described his undercover investigation, and Gromer testified that he interviewed

Riley while executing the search warrant at Riley’s residence. Additionally,

Wenzlick testified that Riley was the only household member who used the

computer, 4 that he used the Internet, and that he used LimeWire to download

music. Wenzlick also testified that when Riley arrived home on January 16, 2010,

she informed him that investigators had been at the home and would be returning

at 6:00 a.m. At some point, Riley informed Wenzlick that his computer had crashed

in California. Wenzlick told the jury that she observed Riley access his computer

after he had returned home, but before investigators arrived, but was unable to

determine what Riley was doing with the computer.




4.      Wenzlick also told the jury that two computers were present at the residence
        but only one was functioning.


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[¶10.]         Russ Eisenbraun, a detective with the Rapid City Police Department,

testified about the results of the forensic analysis. Eisenbraun explained that

neither evidence of LimeWire nor any visual depiction of child pornography was

found on Riley’s computer, including the unallocated space 5 and cache. 6 According

to Eisenbraun, his examination revealed that there were several bad sectors 7 on the



5.       The Ninth Circuit defined unallocated space as:

               space on a hard drive that contains deleted data, usually
               emptied from the operating system’s trash or recycle bin folder,
               that cannot be seen or accessed by the user without the use of
               forensic software. Such space is available to be written over to
               store new information. Even if retrieved, all that can be known
               about a file in unallocated space (in addition to its contents) is
               that it once existed on the computer’s hard drive. All other
               attributes—including when the file was created, accessed, or
               deleted by the user—cannot be recovered.

         Flyer, 633 F.3d at 918.

6.       The cache is a folder which stores a copy of webpages viewed by a user.

               When a computer user views a webpage, the computer
               automatically stores a copy of that webpage in a folder known as
               the cache. The copy is retained in a file called a temporary
               internet file. When the user revisits that webpage, the computer
               can load the page more quickly by retrieving the version stored
               in the cache. The computer automatically deletes temporary
               internet files when the cache—which has limited storage
               space—becomes full. Once full, the computer begins to delete
               the files on a “first in, first out” basis. Users also may manually
               delete files from the cache, or use commercial software to
               remove the files.

         United States v. Moreland, 665 F.3d 137, 142 (5th Cir. 2011) (internal
         citations omitted).

7.       Riley’s expert witness, Dan Meinke, testified that bad sectors are sectors on a
         computer’s hard drive that have been physically damaged.


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computer and that the operating system on Riley’s computer had been reinstalled at

approximately 5:37 a.m. on January 16, 2010. Eisenbraun explained that a

computer does not automatically reinstall the operating system, but has to be

directed to do so, and that the reinstallation could override any information

previously contained on the unallocated space of the hard drive. Further,

Eisenbraun testified that his examination revealed a significant amount of music

was taken off the computer and transferred to thumb drives shortly before the

operating system reinstallation occurred and that the computer only had a basic file

structure that made it look “brand new.”

[¶11.]       Eisenbraun also testified that he used a screen shot from

Kuchenreuther’s investigation to perform a text-string search, which searched

Riley’s computer for strings of words corresponding to file names generated during

Kuchenreuther’s investigation. Eisenbraun’s search produced several hits, meaning

that he found multiple text strings within the unallocated space of the computer’s

hard drive that matched a file name or variation of a file name generated during

Kuchenreuther’s investigation. Eisenbraun also found multiple text strings that

matched the file name or a variation of the file name for the full video. Eisenbraun

explained that a text string was “a file title clearly that suggests child pornography.

It doesn’t mean that it is and doesn’t mean that it isn’t. It’s just what it is, a text

that suggests.”

[¶12.]       Riley’s expert witness, Dan Meinke, testified that numerous users and

computers can use one IP address, and an investigator, such as Kuchenreuther,

would have no way of knowing by simply looking at an IP address “how many


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devices are behind [the] IP address” or “who’s using it.” Meinke also testified that

Eisenbraun appeared to have done a careful investigation of Riley’s computer. He

agreed with Eisenbraun that Riley’s computer contained numerous bad sectors and

that the operating system had been reinstalled. Meinke explained that “[t]he

installation of an operating system on a computer in itself would not delete any –

would not delete most user created files, not to say it couldn’t delete some of

them[,]” and that as the owner of a computer store he “reinstall[s] operating

systems on customer computers on a daily basis without ever losing their data.”

Finally, Meinke explained that LimeWire users can assign a file whatever name

and file extension they wish. As a result, a Microsoft Word document could appear

to be a video file and vice versa.

[¶13.]       Riley moved for a judgment of acquittal at the close of the State’s case-

in-chief and renewed the motion prior to closing arguments. Both motions were

denied. The jury ultimately found Riley guilty of Count I, relating to the full video,

but failed to reach a verdict as to Count II, relating to the partial video. Riley was

sentenced to eight years in the penitentiary. He appeals the trial court’s denial of

his motion for judgment of acquittal.

                              STANDARD OF REVIEW

[¶14.]       “We review the denial of a motion for judgment of acquittal as a

question of law under the de novo standard.” State v. Danielson, 2012 S.D. 36, ¶ 8,

814 N.W.2d 401, 405 (quoting State v. Overbey, 2010 S.D. 78, ¶ 12, 790 N.W.2d 35,

40). “On appeal, the question before this Court is whether the evidence was

sufficient to sustain the conviction[].” Id. (quoting Overbey, 2010 S.D. 78, ¶ 12, 790


                                          -7-
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N.W.2d at 40). “In measuring the sufficiency of the evidence, we ask whether, after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. (quoting State v. Stark, 2011 S.D. 46, ¶ 21, 802 N.W.2d 165,

172). “We accept the evidence and the most favorable inferences fairly drawn

therefrom, which will support the verdict.” Id. (quoting Stark, 2011 S.D. 46, ¶ 21,

802 N.W.2d at 172). Finally, “[w]e will not resolve conflicts in the evidence, assess

the credibility of witnesses, or reevaluate the weight of the evidence.” State v.

Hauge, 2013 S.D. 26, ¶ 12, 829 N.W.2d 145, 149 (quoting State v. Morgan, 2012 S.D.

87, ¶ 10, 824 N.W.2d 98, 100) (internal quotations marks omitted).

                           ANALYSIS AND DECISION

[¶15.]       Riley was convicted of possession of child pornography in violation of

SDCL 22-24A-3(3). For the crime of possession of child pornography, the State

must prove, beyond a reasonable doubt, that the individual “[k]nowingly

possesse[d], distribute[d], or otherwise disseminate[d] any visual depiction of a

minor engaging in a prohibited sexual act, or in the simulation of such act.” SDCL

22-24A-3(3). Riley argues the trial court erred in denying his motion for judgment

of acquittal because the evidence was insufficient to establish the possession

necessary to support a conviction under SDCL 22-24A-3(3). Riley emphasizes the

fact that no visual depiction of child pornography was found on his computer.

[¶16.]       “The term ‘possession’ is not statutorily defined in South Dakota.”

State v. Barry, 2004 S.D. 67, ¶ 9, 681 N.W.2d 89, 92 (citing State v. Goodroad, 442

N.W.2d 246, 251 (S.D. 1989)). However, we have previously stated that


                                          -8-
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“[p]ossession requires that an individual be aware of the presence and character of

the [contraband] and intentionally and consciously possess such [contraband].”

State v. Mattson, 2005 S.D. 71, ¶ 22, 698 N.W.2d 538, 547 (quoting State v. Hanson,

1999 S.D. 9, ¶ 16, 588 N.W.2d 885, 890). Possession can be either actual or

constructive. Hauge, 2013 S.D. 26, ¶ 13, 829 N.W.2d at 150 (citing Overbey, 2010

S.D. 78, ¶ 28, 790 N.W.2d at 43). Constructive possession is the “dominion or

control” over either the contraband or the premises in which the contraband was

found. Barry, 2004 S.D. 67, ¶ 9, 681 N.W.2d at 92-93 (citing Goodroad, 442 N.W.2d

at 251).

[¶17.]       Generally, in cases where courts are called upon to review a

defendant’s conviction for possession of child pornography, a visual depiction of

child pornography is found on the defendant’s computer. Here, the State presented

no direct evidence that Riley possessed the full video, but rather relied on

circumstantial evidence to convict Riley. Thus, the relevant inquiry is whether

there is substantial evidence establishing that Riley exercised dominion or control

over the video to support his conviction for possession of child pornography.

[¶18.]       “If the evidence, including circumstantial evidence and reasonable

inferences drawn therefrom sustains a reasonable theory of guilt, a guilty verdict

will not be set aside.” Hauge, 2013 S.D. 26, ¶ 12, 829 N.W.2d at 149 (quoting

Morgan, 2012 S.D. 87, ¶ 10, 824 N.W.2d at 100). “All elements of a crime, including

intent . . . , may be established circumstantially.” State v. Shaw, 2005 S.D. 105, ¶

45, 705 N.W.2d 620, 633 (quoting State v. Guthrie, 2001 S.D. 61, ¶ 48, 627 N.W.2d

401, 421). “[P]ossession may [also] be proved by circumstantial evidence.” Barry,


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2004 S.D. 67, ¶ 11, 681 N.W.2d at 93. “Direct and circumstantial evidence have

equal weight.” State v. Webster, 2001 S.D. 141, ¶ 13, 637 N.W.2d 392, 396 (citation

omitted). In fact, in some instances “circumstantial evidence may be more reliable

than direct evidence.” Id.

[¶19.]       The “settled law on reasonable doubt suffices to determine if

circumstantial evidence is sufficient to prove the elements of an offense.” State v.

LaPlante, 2002 S.D. 95, ¶ 32, 650 N.W.2d 305, 313 (citation omitted). “The State is

not required ‘to exclude every hypothesis of innocence’ in order to support a

conviction based [on] circumstantial evidence.” Shaw, 2005 S.D. 105, ¶ 45, 705

N.W.2d at 633 (quoting Guthrie, 2001 S.D. 61, ¶ 49, 627 N.W.2d at 421). “Instead,

this Court is required to ‘review the evidence cumulatively to see whether in its

totality it is enough to rule out’” reasonable doubt. Id. (quoting Guthrie, 2001 S.D.

61, ¶ 49, 627 N.W.2d at 421).

[¶20.]       The dissent reasons that each piece of evidence is, by itself, susceptible

to an innocent explanation and therefore, the evidence cannot sustain a guilty

verdict. However, the required cumulative review of the evidence “precludes this

sort of divide-and-conquer analysis.” See United States v. Arvizu, 534 U.S. 266, 274,

122 S. Ct. 744, 751, 151 L. Ed. 2d 740 (2002) (noting that a review under the totality

of the circumstances test precludes evaluating each factor in isolation in order to

create a susceptible innocent explanation that entitles that factor to no weight).

The applicable standard of review is “whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Danielson, 2012


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S.D. 36, ¶ 8, 814 N.W.2d at 405 (citation omitted). This Court is precluded from

reevaluating the weight of the evidence. Id.

[¶21.]         Here, Kuchenreuther testified that he downloaded the full video from

the IP address leased to Riley. Kuchenreuther explained to the jury that the video

file was located in a shared folder within the LimeWire file-sharing program that

was using Riley’s IP address. Riley admitted that he used LimeWire and

introduced no evidence that someone else was using his IP address. Riley’s

girlfriend testified that he used LimeWire and that he was the only one who used

the computer and the Internet at their home. She further testified that only one

computer in the house was working. From this evidence, the jury could reasonably

infer that Riley had exclusive access to the computer associated with his IP address

and downloaded the full video. Moreover, during Riley’s interview with Gromer,

Riley admitted that he glanced at child pornography, and his responses to Gromer’s

questions suggested Riley was aware that pornographic videos had been on his

computer. For example, when Gromer asked Riley how many images or pictures 8

he has seen, Riley responded, “You mean videos? A whole bunch.”

[¶22.]         Further, Riley’s girlfriend testified that she informed Riley at 1:00 a.m.

that investigators had been at the house and that they would return at 6:00 a.m.

She also testified that after she informed Riley the officers would be returning, and

before the officers arrived, she observed Riley working on his computer but did not

know what he was doing. The jury heard testimony from Eisenbraun that the



8.       Gromer did not specify whether he was referring to adult pornography or
         child pornography when he asked this question.

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forensic evaluation revealed the computer’s operating system had been reinstalled

at 5:37 a.m., approximately one hour before officers arrived at Riley’s residence.

Eisenbraun testified that in his opinion, this reinstallation likely overwrote the files

containing videos of child pornography on Riley’s computer. Additionally, Riley

admitted to using LimeWire, but LimeWire was not found on his computer.

Eisenbraun also testified that a significant amount of music had been taken off of

Riley’s computer prior to the operating system reinstallation. From this evidence,

the jury could reasonably infer Riley deleted a number of items, including the full

video Kuchenreuther downloaded on October 20, 2009, and reinstalled the

operating system before law enforcement arrived, effectively deleting the video.

[¶23.]       Finally, Eisenbraun testified that he used a screen shot from

Kuchenreuther’s investigation to perform a text-string search, which searched

Riley’s computer for text strings corresponding to file names generated during

Kuchenreuther’s investigation. Eisenbraun found multiple text strings, including

text strings related to the full video, on the unallocated space of Riley’s computer.

Eisenbraun testified that these text strings, or file names, “clearly . . . suggest[]

child pornography.” From this evidence, the jury could reasonably infer that child

pornography had been present on Riley’s computer on October 20, 2009, when

Kuchenreuther located the files and successfully downloaded the full video.

[¶24.]       Reviewed cumulatively, an inference of guilt is rational when we

consider: (1) the reinstallation of the operating system, the deletion of numerous

other files, and Riley’s past employment with IBM together with Riley’s knowledge

that the police were coming to search his computer, (2) Riley’s admission that he


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used LimeWire and “glanced at” child pornography, (3) his statement that “it’s

gone” in regards to the 79 video files containing child pornography, (4) the text

strings suggesting child pornography, and (5) the evidence that he was the only user

of the computer at issue on an IP address that was downloading child pornography.

In reviewing the evidence as a whole and in the light most favorable to the verdict,

we conclude there was sufficient evidence for a rational jury to find Riley guilty

beyond a reasonable doubt.

[¶25.]       Judgment of conviction is affirmed.

[¶26.]       KONENKAMP, and ZINTER, Justices, concur.

[¶27.]       SEVERSON, and WILBUR, Justices, dissent.



WILBUR, Justice (dissenting).

[¶28.]       I respectfully dissent. The circuit court erred in denying Riley’s motion

for judgment of acquittal because a rational trier of fact could not have “found the

essential elements of the crime beyond a reasonable doubt.” State v. Danielson,

2012 S.D. 36, ¶ 8, 814 N.W.2d 401, 405 (quoting State v. Stark, 2011 S.D. 46, ¶ 21,

802 N.W.2d 165, 172). One of the essential elements of possession of child

pornography cannot be found beyond a reasonable doubt—“any visual depiction of a

minor engaging in a prohibited sexual act, or in the simulation of such an act.”

SDCL 22-24A-3(3). Indeed, no visual depiction of child pornography was ever found

in Riley’s possession or on devices possessed by Riley. And while “any visual

depiction” of child pornography may be inferred from circumstantial evidence, “a

conviction cannot be sustained on mere suspicion or possibility of guilt.” State v.


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Toohey, 2012 S.D. 51, ¶ 22, 816 N.W.2d 120, 130 (quoting United States v. Plenty

Arrows, 946 F.2d 62, 65 (8th Cir. 1991)).

[¶29.]       The circumstantial evidence presented here, even when viewed

cumulatively and in a light most favorable to the State, did not establish, beyond a

reasonable doubt, the presence of any visual depiction of child pornography in

Riley’s possession. The inferences of guilt that the majority uses to support its

conclusion are subject to speculation.

[¶30.]       In arguing that circumstantial evidence supports Riley’s conviction of

possession of child pornography, the majority contends that Riley “was the only user

of the computer at issue on an IP address that was downloading child pornography.”

However, the fact that Riley had exclusive access to the seized computer fails to

establish that Riley’s computer was connected to the IP address Kuchenreuther

identified on October 20, 2009. Kuchenreuther was unable to determine what

device was connected to the IP address on the date of his investigation, where the

device was located, or who was using the device. Further investigation revealed

nothing on Riley’s hard drive linking it to the videos Kuchenreuther discovered on

October 20, 2009.

[¶31.]       Additionally, Riley’s statements do not establish that he possessed

visual depictions of child pornography, specifically the full video, on his computer.

In support of its argument that Riley’s statements are inferences of his guilt, the

majority opinion emphasizes Riley’s statement that “It’s gone[,]” when investigators

questioned Riley about the 79 video files seen by Kuchenreuther on October 20,

2009, and Riley’s statement to investigators that he had viewed the partial video.


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These “admissions,” however, hardly reach the level of admission present in a

similar case where the defendant was convicted and no visual depiction was found

on the defendant’s computer. See State v. Garbaccio, 214 P.3d 168, 172 (Wash. Ct.

App. 2009) (noting that at trial, where the defendant was convicted of possession of

child pornography when no visual depiction of child pornography was found on the

defendant’s computer, “[the defendant] and the State entered into a stipulation that

[the defendant] had in fact downloaded images of child pornography”). And,

furthermore, Riley’s statement that he had viewed the partial video, the charge for

which he was acquitted, does not amount to an “admission” of possession of visual

depictions of child pornography (the full video).

[¶32.]       Lastly, the text strings found by Eisenbraun on Riley’s computer do

not establish that visual depictions of child pornography existed on Riley’s computer

on October 20, 2009. As the record demonstrates, text strings or file titles are just

words, not images or videos. Text strings can be manipulated by the user, meaning

that a computer user can assign a file any name and file extension he chooses.

Thus, a Microsoft Word document could appear to be a video file and vice versa.

Even Eisenbraun testified that a text string “doesn’t mean that it is [child

pornography] and it doesn’t mean that it isn’t [child pornography].”

[¶33.]       Because the circumstantial evidence, when viewed cumulatively in a

light most favorable to the State, is speculative and does not rise to the level of

proof beyond a reasonable doubt, I would reverse the conviction.

[¶34.]       SEVERSON, Justice, joins this dissent.




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