PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, and
Powell, JJ., and Koontz, S.J.
DAVID KELLEY
OPINION BY
v. Record No. 140837 JUSTICE ELIZABETH A. McCLANAHAN
April 16, 2015
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
A jury convicted David Kelley of two counts of
distributing child pornography in violation of Code § 18.2-
374.1:1. Kelley contends the evidence was insufficient to
prove distribution because the peer-to-peer software1 he used to
access and download child pornography automatically placed the
child pornography files into a shared folder accessible to
other users of the software. We will affirm the judgment of
the Court of Appeals upholding the convictions.
I. BACKGROUND
Special Agent Chad Morris is employed by the Virginia
State Police and assigned to the Northern Virginia/D.C./Metro
Area Internet Crimes Against Children (ICAC) Task Force. In
connection with his work on the ICAC Task Force, Morris
utilizes Ares, a peer-to-peer file-sharing program, to identify
1
"Peer-to-peer file-sharing software enables a communal
network which exist[s] – as the name 'file-sharing' suggests –
for users to share, swap, barter, or trade files between one
another." United States v. Wheelock, 772 F.3d 825, 832 n.4
(8th Cir. 2014)(internal quotation marks and citation omitted).
the Internet Protocol (IP) addresses of computers with files
believed to contain child pornography available to share.
As explained by Morris in his testimony given in this
case, Ares is free software that, once installed on a computer,
allows the exchange of files through the Internet.2 Upon
initiating Ares, the user enters search terms to identify files
of other peer-to-peer users online that meet the search
criteria. Ares then displays a list of files available from
other computers, and the user may select specific files to
download. As the files are downloaded, they are placed into a
shared folder generally designated on the user's computer
directory as "My Shared Files." This folder is accessible to
other peer-to-peer users unless the settings are changed by the
user to preclude access. According to Morris,
the whole basic concept of peer-to-peer, is you
borrow or download files from other folks and you
now possess those, but also share it with the
rest of the community, otherwise you're not
really much use to your other peers. So you use
peer-to-peer software to download files from
other users and share files with those same
common users.
On April 25, 2012, in the course of using Ares to
investigate distribution of child pornography on the Internet
2
See Ares Free, What is Ares?
http://www.aresfree.net/what-is-ares (last visited March 20,
2015).
2
by persons in the Harrisonburg area, Morris identified an IP
address with 38 files believed to contain child pornography
available to share on the Ares network. Upon sending a request
to the identified computer to share two of these files, Morris
was permitted to download both files, which were confirmed by
him to contain child pornography. The IP address was
subsequently traced to Kelley's home.
On May 18, 2012, at approximately 6:15 a.m., members of
the ICAC Task Force and the Harrisonburg Police Department
executed a search warrant upon Kelley's home. Investigator
Greg Miller, accompanied by another investigator, both with the
Harrisonburg Police Department, spoke to Kelley in his bedroom.
Kelley acknowledged he was familiar with file-sharing software
and Ares in particular. Kelley told Miller he uses Ares "for
music," explained "how it worked," and said the files he stored
were "on a shared folder located on his desktop."
When Miller informed Kelley that child pornography was
found on his computer, Kelley said he was in the process of
downloading child pornography onto his laptop when they arrived
and initially claimed that "[j]ust now when you all knocked on
the door was the first time I've downloaded anything in the
folder," adding that they would find the videos in his shared
folder. Kelley directed Miller to his laptop computer, which
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was found in his bedroom closet, in a backpack underneath some
clothing.
Kelley ultimately admitted he had used Ares on previous
occasions to download child pornography. When asked about the
specific date on which Special Agent Morris accessed the two
videos from Kelley's computer, Kelley responded, "You would
know." When Miller asked Kelley how long he had been "dealing
child pornography," Kelley said "maybe four years." Kelley
repeatedly told Miller that he did not share the files but
downloaded them and "just deleted [the files] out of the share
folder."
At trial, Kelley called Daniel Reefe to testify as an
expert in computer forensics. Reefe confirmed that Ares
creates the "My Shared Files" folder as a default option upon
installation of the program. Therefore, when using Ares, files
selected will automatically download into the shared folder
unless the user chooses to place the files elsewhere to prevent
sharing by other users.
Kelley was convicted by the jury of two counts of
distribution of child pornography and ten counts of possession
of child pornography in violation of Code § 18.2-374.1:1.3 The
3
Investigator Christopher O'Neill, a computer forensics
expert with the Harrisonburg Police Department, performed a
preliminary examination on Kelley's laptop computer. O'Neill
4
Court of Appeals, by a per curiam order, denied Kelley's
petition for appeal.
II. ANALYSIS
On appeal, Kelley argues that the evidence was
insufficient "to prove distribution of child pornography based
upon the presence and automatic actions of a peer-to-peer
program on Kelley's computer."
When the sufficiency of evidence is challenged on appeal,
we review the evidence in the "light most favorable" to the
Commonwealth, as the party prevailing at trial. Commonwealth
v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This
principle requires us to "discard the evidence of the accused
in conflict with that of the Commonwealth, and regard as true
all the credible evidence favorable to the Commonwealth and all
fair inferences to be drawn therefrom." Parks v. Commonwealth,
221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis,
internal quotation marks and citation omitted). We will not
found ten files containing child pornography in the shared
folder on Kelley's laptop. Special Agent Hugh Thatcher, Jr., a
member of the Electronic Crimes Task Force of the United States
Secret Service, performed a full forensic examination on
Kelley's laptop computer and confirmed O'Neill's findings.
These ten files formed the basis of indictments against Kelley
on ten charges of possession of child pornography. Kelley's
convictions on these charges are not before us on appeal.
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set aside the trial court's judgment unless it is "plainly
wrong or without evidence to support it." Code § 8.01-680;
Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28
(2005).
Kelley was convicted of two counts of distribution of
child pornography in violation of Code § 18.2-374.1:1(C)(i).
This statute provides, in pertinent part, that any person who
"reproduces by any means, including by computer, sells, gives
away, distributes, [or] electronically transmits" child
pornography shall be guilty of violating said statute.
The evidence is undisputed that Kelley downloaded the Ares
software onto his laptop and used Ares to search for and
download the child pornography files that were accessed by
Morris from Kelley's shared folder. As Morris explained, the
whole purpose of Ares is to facilitate sharing of files among
the network of users.
By downloading Ares, which is a peer-to-peer
file-sharing software, it's inherent that . . .
peer-to-peer users know that they're sharing
files amongst their peers. And by having those
in a shared folder available for me to view and
not changing the settings or having the settings
so that [Kelley] would download or make available
to share those [Kelley] essentially allowed me
[access].
Thus, in downloading the child pornography files into his
shared folder, Kelley made the files available for sharing with
Morris.
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Kelley could have prevented other Ares users, including
Morris, from downloading those files from Kelley's computer,
but he did not do so. According to Morris,
I searched like any other user would, identified
that he had those [files] to share and downloaded
those. Some folks, which was not the case here,
can actually stop and interrupt that download.
They often times do that. In this particular
case I was able to download two complete files
without interruption or without [Kelley] stopping
that or prohibiting that share.
We reject Kelley's contention that the evidence was
insufficient to prove distribution because the files were
shared "without any volition on the part of Kelley." Kelley
chose to download the Ares software onto his laptop computer by
which he voluntarily participated in peer-to-peer file-sharing
of child pornography. Whether Kelley's shared folder
containing the child pornography was created as a default
option by the software or by Kelley himself, the child
pornography files were, in fact, downloaded by Kelley into his
shared folder and, thereby, made available to other users of
Ares.
Although Kelley could have changed the settings on his
laptop to preclude sharing of his downloaded files or prevented
Morris from downloading the files from Kelley's shared folder,
he chose not to do so. Kelley was familiar with the operation
of the software, having used it before to download music, and
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he even explained to Miller "how it worked." Therefore,
reasonable jurors could conclude that Kelley, by his own
volition, shared the child pornography files with Morris.
Accordingly, the evidence was sufficient for the jury to find
that Kelley reproduced by any means, including by computer,
sold, gave away, electronically transmitted or distributed
child pornography in violation of Code § 18.2-374.1:1(C)(i).
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the Court of Appeals.
Affirmed.
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