                                  Cite as 2014 Ark. 403

                SUPREME COURT OF ARKANSAS
                                     No.   CR-13-698

DANIEL KLOSKY, JR.                              Opinion Delivered   October 2, 2014
                              APPELLANT
                                                APPEAL FROM THE FAULKNER
V.                                              COUNTY CIRCUIT COURT
                                                [NO. 23CR-09-1571]

STATE OF ARKANSAS                               HONORABLE CHARLES E.
                                APPELLEE        CLAWSON, JR., JUDGE

                                                AFFIRMED.


                             JIM HANNAH, Chief Justice


       Following a bench trial, the Faulkner County Circuit Court convicted appellant,

Daniel Klosky, Jr., of thirty-eight counts of distributing, possessing, or viewing matter

depicting sexually explicit conduct involving a child, in violation of Arkansas Code

Annotated section 5-27-602(a)(1) (Repl. 2006). He was sentenced to forty-eight months’

imprisonment on each count, with all sentences to be served concurrently. Klosky filed a

written motion to dismiss1 at the close of all the evidence, and the State filed a written

response to the motion. In a letter order filed January 15, 2013, the circuit court found

Klosky guilty on all counts. Klosky originally appealed that order to the Arkansas Court of

Appeals, which recommended certification to this court because the case involved an issue



       1
        Although Klosky styled his motion as one for directed verdict, in a bench trial, a
challenge to the sufficiency of the evidence is a motion for dismissal. See Ark. R. Crim. P.
33.1(b) (2014). Therefore, we will refer to Klosky’s motion as a motion to dismiss.
                                      Cite as 2014 Ark. 403

of first impression and a significant issue requiring development of the law. This court

accepted certification, and our jurisdiction is proper pursuant to Arkansas Supreme Court

Rule 1-2(b)(1), (5) (2014). We affirm.

       Klosky’s sole argument on appeal is that the circuit court erred in denying his motion

to dismiss because the State failed to prove thirty-eight counts of knowing receipt of child

pornography for the purpose of distribution. Specifically, he contends that

       [a] consideration of all the evidence in the case shows that this case of alleged
       knowing receipt of child pornography for the purpose of distribution, how it is
       charged, does not rise above speculation and conjecture that defendant knew that he
       had this child pornography on his computer on or about December 21, 2009 for the
       purpose of redistribution. . . . The defendant is charged with having files for
       redistribution to others. All we have, however, is the [Faulkner County Sheriff’s
       Office] going into his computer and taking them. We have utterly no idea that the
       files were there for redistribution to others.

       Klosky’s challenge to the sufficiency of the evidence is premised on a

misunderstanding of the statute. Arkansas Code Annotated section 5-27-602(a)(1) states that

       [a] person commits the offense of distributing, possessing, or viewing matter depicting
       sexually explicit conduct involving a child if the person knowingly:

                Receives for the purpose of selling or knowingly sells, procures, manufactures, gives,
       provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates,
       disseminates, presents, exhibits, advertises, offers, or agrees to offer through any
       means, including the Internet, any photograph, film, videotape, computer program
       or file, video game, or any other reproduction or reconstruction that depicts a child
       or incorporates the image of a child engaging in sexually explicit conduct.

(Emphasis added.) See also AMI Crim. 2d 2701.2


       2
       Arkansas Model Jury Instruction–Criminal 2d 2701 states in relevant part:

       DISTRIBUTING, POSSESSING, OR VIEWING MATTER DEPICTING
       SEXUALLY EXPLICIT CONDUCT INVOLVING A CHILD

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       A review of the plain language of the statute reveals that “knowing receipt for the

purpose of distribution” is not among the elements that the State must prove to sustain a

charge of distributing, possessing, or viewing matter depicting sexually explicit conduct

involving a child. Accordingly, we affirm the circuit court’s denial of Klosky’s motion to

dismiss.

       Affirmed.

       BAKER , GOODSON , and HART, JJ., dissent.

       JOSEPHINE LINKER HART, Justice, dissenting. I respectfully dissent. The majority

makes a fundamental error when it summarily affirms this case based on its conclusion that

Klosky’s challenge to the sufficiency of the evidence is premised on a “misunderstanding” of




       ________________________(Defendant) is charged with the offense of
       (distributing) (possessing) (or) (viewing) matter depicting sexually explicit
       conduct involving a child.

       To sustain this charge, the state must prove the following things beyond a
       reasonable doubt:

       First, that __________________________(Defendant)

       [(received for the purpose of selling) (sold) (procured) (manufactured) (gave)
       (provided) (lent) (traded) (mailed) (delivered) (transferred) (published) (distributed)
       (circulated) (disseminated) (presented) (exhibited) (advertised) (offered) (or) (agreed
       to offer) through (any means) (the Internet) a (photograph) (film) (videotape)
       (computer program or file) (video game) (or) (any other reproduction or
       reconstruction) which depicts a child or incorporates the image of a child
       engaging in sexually explicit conduct.
       ....

       Second, that _____________________(Defendant) did so knowingly.

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Arkansas Code Annotated section 5-27-602(a)(1). The majority selectively reads Klosky’s

brief to create a procedural bar that simply does not exist. To accomplish this, the majority

focuses on a few sentences out of Klosky’s eight-page argument, ignoring the numerous sub-

points that disprove their holding that Klosky did not discuss the failure of proof in relation

to statutory elements.

       Klosky’s argument focused on whether the State proved that he possessed the knowing

mens rea for the proscribed conduct listed in section 5-27-602(a)(1), i.e., “sells, procures,

manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes,

circulates, disseminates, presents, exhibits, advertises, offers, or agrees to offer,” which he

summarizes as “redistribution.” Klosky argues that the State failed to prove that he knowingly

offered the images to others because it did not prove that he “knew” the images were on his

computer. He bolsters this argument with the assertion that there was no evidence to show

he overtly offered the images to others, as would be the case if he offered them to police in

some sort of sting operation, and nothing in his browser history to establish that anyone else

sought the images. Likewise, he argues that the State failed to show that he “manipulated”

the images, or even opened the files.

       Further, he argues that finding cache files or images in unallocated space “cannot be

considered ‘knowingly possessed.’” Because cache files are created without the computer

owner’s action or knowledge. Additionally, Klosky argues that images found in unallocated

space cannot satisfy the “knowing” mens rea because they have been deleted and cannot be

accessed by other LimeWire subscribers. All of these subpoints were preserved in the circuit


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court by the ten-page motion to dismiss that Klosky filed.

       Finally, the majority does not explain why it found it sufficient to cite as its only

authority a jury instruction—Klosky was tried in a bench trial. I would decide this case on

the merits.

       BAKER and GOODSON, JJ., join.

       John Wesley Hall, Jr., and Sarah M. Pourhosseini, for appellant.

       Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.




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