                                                                                               11/07/2017


                                          DA 16-0672
                                                                                           Case Number: DA 16-0672

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 273



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

TALAN HARRINGTON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. ADC-15-095
                        Honorable Brenda Gilbert, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Madison L. Mattioli,
                        Assistant Attorney General, Helena, Montana

                        Joshua Racki, Cascade County Attorney, Great Falls, Montana



                                                    Submitted on Briefs: August 16, 2017

                                                               Decided: November 7, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.


¶1     Talan Harrington (Harrington) appeals from an order of the Eighth Judicial

District Court, Cascade County, denying Harrington’s pretrial motions to dismiss charges

relating to his arrest for sexual abuse of children. We affirm.

¶2     We restate the issues on appeal as follows:

       Issue One: Whether there was sufficient evidence to establish that Harrington
       knowingly possessed child pornography.

       Issue Two: Whether the statutory definition of possession, § 45-2-101(59), MCA,
       is unconstitutionally vague as applied to Harrington.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     In 2012, Agent Albert Kinsey of the Department of Homeland Security utilized

Child Protective System software to identify individuals in Montana engaged in file

sharing of child pornography. Based on Agent Kinsey’s investigation, four different

Internet Protocol (IP) addresses in Montana were identified to be associated with child

pornography images. Each IP address had files with descriptions and titles indicative of

files containing child pornography. One of the IP addresses showed the use of keyword

searches commonly associated with child pornography. All four of the IP addresses were

assigned to Erin Nielsen in Great Falls, Montana.

¶4     Agent Kinsey contacted Great Falls Police Department Detective Jesse Slaughter

and provided him with this information. Detective Slaughter obtained a search warrant

for Nielsen’s home. When officers executed the warrant, Nielsen denied ever looking at

child pornography but told officers she had previously been in a relationship with


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Harrington. Nielsen disclosed Harrington had lived with her until 2012. Further, Nielsen

told Detective Slaughter her Wi-Fi signal is password protected; however, Harrington

likely knew the password because he had placed a key logger device on her computer.

¶5     Agent Kinsey and Detective Slaughter went to Harrington’s home. They informed

Harrington that they had just executed a search warrant at Nielsen’s home regarding a

child pornography investigation. Harrington admitted to using Frostwire1 to download

two child pornography videos containing children aged seven and eight. Based upon

Harrington’s own admission, law enforcement asked Harrington to come down to the

Great Falls Police Department for an interview.          Harrington complied.     Detective

Slaughter seized a Sony laptop that was in plain view.

¶6     Harrington consented to search of the Sony laptop, waived his Miranda rights, and

agreed to answer questions.       Harrington again admitted to downloading the two

pornographic files with seven- and eight-year-old children.       Harrington said he had

recently uninstalled and deleted Frostwire because his computer had been infected with a

Trojan horse virus. Harrington told Agent Kinsey that when he used Frostwire he always

individually selected his downloads and never did mass downloads.               During the

interview, Agent Kinsey and Detective Slaughter noted Harrington’s aptitude for

computers.

¶7     Special Agent Brent Johnsrud of the Department of Homeland Security conducted

a forensic examination of the laptop. Agent Johnsrud used EnCase, a computer software


       1
          Frostwire is a peer-to-peer network. Frostwire users can send and/or receive files
directly to or from other users who are utilizing file sharing software programs.
                                             3
program, to locate image files in the allocated space on Harrington’s laptop and did not

locate any suspected child pornography image files. Then Agent Johnsrud used EnCase

to locate files in the unallocated space2 on Harrington’s laptop. Agent Johnsrud located

twenty-four suspected child pornography image files.            Agent Johnsrud immediately

recognized two of the child pornographic images because he had encountered them in

past forensic examinations.

¶8     Agent Johnsrud recovered the twenty-four image files depicting child

pornography. Agent Johnsrud explained during examination that those files were most

likely cache files created by the laptop as a normal function of the operating system.

When a video is played, the operating system creates a thumbnail, an indirect cache

image that displays the first frame of the video. Thus, the files were the result of child

pornography videos being played on the laptop. In addition, the cache image could have

been saved to the hard drive if a user partially downloaded a video. The images found on

Harrington’s laptop most likely derived from incomplete videos being downloaded and

viewed using the Frostwire software. Additionally, Agent Johnsrud discovered link files3

containing names indicative of child pornography associated with Frostwire and the user




       2
          A hard drive consists of allocated space and unallocated space. Allocated space is space
on a hard drive that a user can readily access. When a file in allocated space is deleted, it is
moved to unallocated space on a hard drive . Unallocated space is not readily accessible by a
user. However, the items in unallocated space remain on the hard drive and can be accessed
until they are overwritten by other data.
       3
          A link file is created when a file or program is opened. Link files are then typically
stored in the recent folder associated with the user account that was used to access the file.
                                                4
account titled “Talon.” 4 The user downloading the file from Frostwire would have seen

the name of the video file when it was selected.

¶9     Agent Johnsrud concluded through his investigation that the video files had been

deleted after having been opened and/or viewed. Further, Agent Johnsrud concluded

based on the link files, that the video files were opened and/or viewed between October

21, 2012, and January 7, 2013.

¶10    Based on the information discovered by Agents Kinsey and Johnsrud, the State

charged Harrington with twenty-four counts of sexual abuse of children. On September

10, 2015, Harrington filed his first motion to dismiss based on insufficient evidence to

prove the requisite mens rea. On October 5, 2015, Harrington filed his second motion to

dismiss arguing that the statutory definition of possession is unconstitutionally vague as it

applies to Harrington’s case. On December 29, 2015, the District Court held a hearing on

both motions. Subsequently, the District Court issued a Findings of Fact, Conclusions of

Law, and Order denying both motions. On June 1, 2016, Harrington pleaded guilty to

one count of sexual abuse of children pursuant to a plea agreement. Harrington reserved

the right to appeal the District Court’s denial of the two motions. Harrington timely

appealed.

                                   STANDARD OF REVIEW

¶11    We conduct a de novo review of the record for sufficient evidence. State v.

Bekemans, 2013 MT 11, ¶ 18, 368 Mont. 235, 293 P.3d 843. We review the record for

sufficient evidence in the light most favorable to the prosecution. State v. Gunderson,

       4
           It is undisputed that Harrington used the user name “Talon” on his laptop.
                                                  5
2010 MT 166, ¶ 58, 357 Mont. 142, 237 P.3d 74. There is sufficient evidence to support

a conviction if any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. State v. Finley, 2011 MT 89, ¶ 18, 360 Mont. 173,

252 P.3d 199.

¶12   This Court reviews the denial of a motion to dismiss in a criminal case de novo.

State v. Dugan, 2013 MT 38, ¶ 13, 369 Mont. 39, 303 P.3d 755. Statutes are presumed to

be constitutional.   A party challenging a statute’s constitutionality must establish,

“beyond a reasonable doubt, that the statute is unconstitutional, and any doubt must be

resolved in favor of the statute.” State v. Michaud, 2008 MT 88, ¶ 15, 342 Mont. 244,

180 P.3d 636. The constitutionality of a statute is a question of law, which we review for

correctness. State v. Knudson, 2007 MT 324, ¶ 12, 340 Mont. 167, 174 P.3d 469.

                                     DISCUSSION

¶13   Issue One: Whether there was sufficient evidence to establish that Harrington
      knowingly possessed child pornography.

¶14   The District Court determined that there was sufficient evidence to establish

Harrington acted knowingly when he possessed child pornography. Harrington argues he

could not possess dominion and control over the images because they were stored in

unallocated space which could only be accessed using sophisticated forensic software.

The State counters that although the images were found in unallocated space,

Harrington’s own admissions and conduct would allow a rational jury to find that

Harrington knowingly possessed child pornography.




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¶15   Section 45-5-625(1)(e), MCA, provides: “A person commits the offense of sexual

abuse of children if the person . . . knowingly possesses any visual or print medium,

including a medium by use of electronic communications in which a child is engaged in

sexual conduct, actual or simulated.” Visual medium means, in part, “any disk, diskette,

or other physical media that allows an image to be displayed on a computer or other

video screen and any image transmitted to a computer or other video screen by telephone

line, cable, satellite transmission, or other method.” Section 45-5-625(5)(d)(ii), MCA.

¶16   A person commits the offense of sexual abuse of children by, among other things,

“knowingly” possessing photographs of a child engaged in actual or simulated sexual

activity. In other words, possession of such photographs alone renders one in violation of

§ 45-5-625(1)(e), MCA.         Therefore, the correct “knowingly” definition under

§ 45-5-625(1)(e), MCA, is “a person acts knowingly with respect to conduct . . . when the

person is aware of the person’s own conduct . . . .” State v. Hovey, 2011 MT 3, ¶ 20, 359

Mont. 100, 248 P.3d 303 (quoting § 45-2-101(35), MCA).

¶17   Possession is defined as “the knowing control of anything for a sufficient time to

be able to terminate control.” Section 45-2-101(59), MCA. Possession can be actual or

constructive. State v. Meader, 184 Mont. 32, 42, 601 P.2d 386, 392 (1979) (internal

citations omitted).   Actual possession means that the contraband is in the personal

custody of the person, whereas constructive possession means that the person charged

with possession has dominion and control over the prohibited contraband. Meader, 184

Mont. at 42, 601 P.2d at 392. The Ninth Circuit has reasoned, and we agree, that in an

electronic context, a person can possess or receive child pornography without

                                            7
downloading it if he or she seeks it out and exercises dominion and control over it.

United States v. Romm, 455 F.3d 990, 1000 (9th Cir. 2006).

¶18    Harrington relies principally on United States v. Kuchinski, 469 F.3d 853 (9th Cir.

2006), and United States v. Flyer, 633 F.3d 911 (9th Cir. 2011), to support his argument

that he did not knowingly possess child pornography because the images found were in

unallocated space. However, these cases are factually distinguishable from Harrington’s

case because in Kuchinski and Flyer the United States failed to present any evidence to

show knowing possession of the child pornography files by the defendants.

¶19    In Kuchinski, the defendant was not held responsible for the thousands of images

of child pornography found within his cache. Kuchinski, 469 F.3d at 862-63. Kuchinski

admitted to downloading 110 images of child pornography, but at sentencing he was held

accountable for thousands of images found in the cache.5 Kuchinski, 469 F.3d at 861-62.

The Court noted that the thousands of images found within the cache could have been

automatically downloaded when the 110 images were downloaded and viewed by

Kuchinski.   Kuchinski, 469 F.3d at 862-63. Therefore, the Court concluded it was

improper to consider the thousands of additional images found in the cache because there

was no evidence he downloaded the additional images, clicked on the images, enlarged

them, or viewed them. Kuchinski, 469 F.3d at 863.

¶20    In Flyer, the defendant’s possession of child pornography conviction was

overturned. Flyer, 633 F.3d at 919. The Court established that the mere presence of


       5
        For purposes of sentencing, the number of child pornographic images could increase a
defendant’s offense level.
                                             8
child pornographic images in “unallocated space” on a computer hard drive, by itself, is

not sufficient to prove knowing possession of child pornography. Flyer, 633 F.3d at 919.

Further, the Ninth Circuit concluded that “deletion of an image alone does not support a

conviction for knowing possession of child pornography . . . .” Flyer, 633 F.3d at 920.

¶21   Harrington argues that based on Kuchinski and Flyer this case must result in a

dismissal of his charges. However, in Kuchinski the defendant never admitted to seeking

out, downloading, or viewing the images in question. Kuchinski, 469 F.3d at 862. Thus,

Kuchinski held that images in the cache alone do not suffice to support a finding of

knowing possession. Kuchinski, 469 F.3d at 863. Similarly, Flyer made no admission

that he had viewed the charged images on or near the time alleged in the indictment.

Flyer, 633 F.3d at 919. Consequently, Flyer held that images found in unallocated space

without any other supporting evidence of possession do not suffice to support a finding of

knowing possession. Flyer, 633 F.3d at 911. Therefore, based on Kuchinski and Flyer,

the State must have evidence that the child pornographic files on Harrington’s laptop

were not the product of an automatic or accidental download which were then deleted.

¶22   Here, the State had evidence, other than the mere presence of the images in the

unallocated space, to support that Harrington knowingly possessed the images.

Harrington admitted to using Limewire to intentionally seek out and download two

pornographic videos containing children.        Further, he admitted that he never mass

downloaded from Limewire, and therefore would individually pick out and download

files from Limewire. Harrington’s laptop showed evidence that confirmed Harrington’s

admission. The forensic analysis conducted on the laptop not only discovered cache files

                                            9
in the hard drive but link files that could be directly traced back to the user name “Talon.”

The link files had names indicative of child pornography and would have been visible to

Harrington before opening them. The link file evidence shows that the videos associated

with the user “Talon” had been viewed on the laptop.                Taken together, these

circumstances demonstrate more than sufficient evidence to support knowing possession

of child pornography because there was more than just cache images or deleted images.

¶23    Harrington attempts to distinguish Romm; however, the case is more akin to

Harrington’s case than Kuchinski and Flyer. In Romm, the defendant’s conviction for

possessing child pornography was upheld. Romm, 455 F.3d at 1001. Romm admitted to

seeking out child pornography. Romm, 455 F.3d at 1000. By Romm’s own admission he

would view the images for a few minutes, then he would delete the images. Romm, 455

F.3d at 1000. While those images were displayed on his screen they were simultaneously

stored to his cache. Romm, 455 F.3d at 1000-01. The Court concluded based on the

above-mentioned evidence a reasonable jury could conclude that Romm knowingly

possessed child pornography. Romm, 455 F.3d at 1001.

¶24    Viewing the evidence in the light most favorable to the prosecution, we agree with

the District Court that there is sufficient evidence that a rational jury could have found

Harrington guilty of sexual abuse of children because he knowingly possessed child

pornography.




                                             10
¶25    Issue Two: Whether the statutory definition of possession, § 45-2-101(59), MCA,
       is unconstitutionally vague as applied to Harrington.

¶26    The District Court determined that the statutory definition of possession,

§ 45-2-101(59), MCA, was not vague as applied to Harrington. Harrington argues the

statutory definition of possession criminalizes otherwise innocent conduct, such as

deleting unwanted or illegal computer files. Therefore, Harrington asserts that he could

not have understood what conduct would subject him to prosecution. The State counters

that as applied to Harrington the statutory definition of possession is not

unconstitutionally vague because Harrington sought out and downloaded child

pornography, a clear violation of the statute.

¶27    We presume that all statutes are constitutional. State v. Dixon, 2000 MT 82, ¶ 14,

299 Mont. 165, 998 P.2d 544. A vagueness challenge to a statute may be maintained

under two different theories: (1) because the statute is so vague that it is rendered void

on its face; or (2) because it is vague as applied in a particular situation. State v. Watters,

2009 MT 163, ¶ 24, 350 Mont. 465, 208 P.3d 408. “It is a basic principle of due process

that an enactment is void for vagueness if its prohibitions are not clearly defined.”

Dugan, ¶ 66 (internal citations omitted).

¶28    For vague-as-applied challenges, a court must determine (1) whether the statute in

question provides a person with “actual notice” and (2) whether it provides “minimal

guidelines” to law enforcement. Dugan, ¶ 67 (citing Watters, ¶ 32). To determine

whether the challenged statute provides “actual notice,” courts examine the statute in

light of the defendant’s conduct to determine if the defendant reasonably could have


                                              11
understood that the statute prohibited such conduct. Watters, ¶ 32. Therefore, the issue

is whether Harrington could have reasonably understood that the statute proscribed his

conduct—seeking out and downloading child pornography.

¶29   Section 45-2-101(59), MCA, which Harrington challenges as unconstitutionally

vague as applied to him, defines possession as “the knowing control of anything for a

sufficient time to be able to terminate control.” First, we determine if the statute would

provide actual notice to Harrington of what conduct is proscribed. The statute clearly

applies to Harrington’s conduct. Harrington pleaded guilty to the possession of child

pornography. Harrington admitted to seeking out, and downloading child pornography.

Then Harrington deleted the files, resulting in the images being stored in the unallocated

space of his laptop’s hard drive. Knowingly downloading child pornography with the

intent to view and then deleting it would fall within a reasonable understanding of

“possession.” A reasonable person of average intelligence would have clearly understood

that entering search terms associated with child pornography into Limewire and then

downloading child pornography files would fall within the scope of possession of child

pornography.

¶30   Second, we determine whether the Legislature established minimal guidelines to

govern law enforcement regarding Harrington’s conduct. Here, Harrington contends that

the definition of possession regarding computer images could include otherwise innocent

conduct. Harrington admitted to searching child pornography and then downloaded two

specific files with children seven and eight years old. Clearly, Harrington knowingly

controlled the files of child pornography on his laptop sufficiently to delete them.

                                           12
Harrington’s arguments that a prosecutor could bring charges against a defendant who

involuntarily downloaded child pornography and then immediately disposed of it do not

apply to Harrington’s conduct.     Harrington knowingly sought out multiple child

pornography files to download; this is clearly not a case of involuntary download. We

conclude that § 45-2-101(59), MCA, is not unconstitutionally vague as applied to

Harrington’s conduct.

                                  CONCLUSION

¶31   We conclude that the District Court did not err when it determined that the State

presented sufficient evidence for a reasonable jury to find that Harrington knowingly

possessed child pornography. Further, we conclude that Montana’s statutory definition

of possession under § 45-2-101(59), MCA, is not unconstitutionally vague as applied to

Harrington’s conduct.   Therefore, the District Court properly denied Harrington’s

motions to dismiss.

¶32   Affirmed.


                                              /S/ MICHAEL E WHEAT


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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