Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.
DAVID MIDKIFF, S/K/A
DAVID WILLIS MIDKIFF
v. Record No. 091793 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
COMMONWEALTH OF VIRGINIA JUNE 10, 2010
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal we consider whether a trial court properly
admitted into evidence digital video recordings and still images
of child pornography reproduced from electronic files on digital
video discs (DVDs) copied from hard drives found in the
defendant’s computer.
Sergeant Rodney Thompson of the Bedford County Sheriff’s
Office and Investigator Boyd T. Arnold of the Pittsylvania
County Sheriff’s Office executed a search warrant at the home of
David Midkiff. Midkiff was not at home when the warrant was
served, but the officers reached him by telephone. In response
to the officers’ questions, Midkiff told the officers that child
pornography was stored in his computer. The officers seized the
computer, took it to the property room of the Sheriff's Office
in Chatham, and subsequently took it to the Department of
Forensic Science Western Laboratory in Roanoke. The computer
was then sent to the Central Laboratory in Richmond for
examination.
Kristen Scott, a forensic digital evidence scientist at the
Department of Forensic Science, examined the computer. First
she removed the five hard drives in the computer and made an
image or copy of the hard drives. ∗ She then examined the copy of
the hard drives for images that were of a questionable nature.
Scott identified 16 questionable images and some video clips.
Using the file names Midkiff gave to the files of still images
and video recordings, she “wrote” or copied the files to a DVD
without changes. Scott gave the DVD to Investigator Arnold.
Midkiff was indicted for one count of possession of child
pornography and 18 counts of possession of child pornography,
second or subsequent offense, in violation of Code § 18.2-
374.1:1. He was tried by a jury in the Pittsylvania County
Circuit Court. At trial Arnold testified that he printed out
the still image files as 8 by 10 inch pictures and copied a
portion of the DVD for displaying the video recordings at trial.
Scott, testifying as an expert in computer forensic science,
stated that reproduction of a hard drive is a “bit for bit
copy,” and that, unlike a photocopy of a document in which you
“lose something, when you make a bit for bit image of a hard
drive you get the exact same thing each time.” She further
testified that in bit for bit digital copying “[e]ach copy you
∗
A hard drive is the basic data storage and retrieval
component of a personal computer.
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create from the original is considered forensically to be an
original.” Scott identified the video recordings and 16 still
images presented at trial in 8 by 10 format as accurately
reflecting the files she copied from the defendant’s hard drives
and delivered to Investigator Arnold.
Midkiff objected to the admission of the still images and
video recordings, arguing that they were a “third generation
removed” from the defendant’s hard drives because they were
produced from a copy of the copy of the hard drives. Midkiff
argued that because there was no evidence that the hard drives
themselves were not available, under the best evidence rule, the
still images and video recordings should not be admitted into
evidence. Midkiff asserted that the reliability of the
photographs of these materials was in question. The trial court
admitted the proffered printed images and video recordings,
stating that “based on the testimony, these are originals and
that . . . satisfies the best evidence rule.”
Midkiff appealed to the Court of Appeals asserting, as
relevant here, that admitting the photographs and video
recordings violated the best evidence rule. The Court of
Appeals rejected Midkiff’s arguments and affirmed his
convictions, holding that the best evidence rule is limited to
written documents and did not apply to the still images and
video recordings in issue and that the trial court did not err
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in concluding that the admitted materials “were fair and
accurate representations of the digital image files of child
pornography on [Midkiff’s] computer hard drive.” Midkiff v.
Commonwealth, 54 Va. App. 323, 339, 678 S.E.2d 287, 295 (2009).
Midkiff filed a timely appeal to this Court.
In this appeal, Midkiff argues that because pornographic
images of children are the contraband in prosecutions under Code
§ 18.2-374.1:1, and because digital images are subject to
manipulation, this Court should extend the best evidence rule to
these images because only that rule “insures the integrity of a
criminal conviction.” Applying that rule in this case,
according to Midkiff, would require the trier of fact to view
the images at issue on his computer hard drives.
We decline Midkiff’s invitation to extend the best evidence
rule to this case. Not only is application of the rule limited
to written documents, Meade v. Commonwealth, 177 Va. 811, 815,
12 S.E.2d 796, 797-98 (1941), but the purpose of the rule,
reliability of evidence, is amply met in this case as discussed
below.
In considering Midkiff's challenge to the reliability of
the evidence, we apply a well established standard of appellate
review. Generally, the admissibility of evidence is within the
discretion of the trial court and we will not reject the
decision of the trial court unless we find an abuse of
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discretion. Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d
820, 823 (1986).
The record reflects that Scott was qualified as an expert
and testified that a bit for bit copy of a hard drive is a
reproduction of the actual hard drive without degradation and is
considered forensically to be an original. She also testified
that she made a bit for bit copy of the hard drives in Midkiff’s
computer. Investigator Arnold testified that he produced the
photographs from the data DVD he received from Scott and the
photographs were the same as he viewed on the data DVD. Scott
also identified the photographs and video clips as accurate
representations of the child pornography she viewed on the
digital reproduction she made of Midkiff’s hard drives. Midkiff
made no assertions that the admitted photographs or video clips
were in any way manipulated or altered from the images that
resided on his computer’s hard drives. Based on this record, we
conclude that the printed pictures and video recordings were
reliable representations of the material contained in the
digital image and video recording files on Midkiff’s computer
hard drives and thus the circuit court did not abuse its
discretion in receiving them into evidence.
Accordingly, for these reasons, we will affirm the judgment
of the Court of Appeals.
Affirmed.
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