Kromer v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Kelsey and Senior Judge Overton
Argued by teleconference

RAY KROMER
OPINION BY
v. Record No. 1900-04-2 JUDGE ROBERT P. FRANK
JUNE 14, 2005
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Beverly W. Snukals, Judge

Jennifer M. Newman (C. David Whaley; Morchower, Luxton &
Whaley, on brief), for appellant.

Kathleen B. Martin, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.

Ray Kromer, appellant, was convicted, in a bench trial, of fifteen counts of misdemeanor

possession of child pornography in violation of Code § 18.2-374.1:1.1 On appeal, he contends

the evidence was insufficient to sustain his convictions. We hold the evidence was sufficient and

affirm.

BACKGROUND

On March 26, 2003, Richmond police responded to a fire at a residence on Hanover

Avenue in Richmond. After finding chemicals and explosives on the second floor, police called

Special Agent Robert Ritchie of the F.B.I. to “take a look at the scene.” Ritchie, a bomb

technician, questioned appellant about the materials. Appellant responded that he “was making

pyrotechnic devices, rockets and other pyrotechnic type devices.” Appellant gave written

1
Such an offense is now a Class 6 felony. The offense was a Class 1 misdemeanor on
March 26, 2003, the date alleged in the indictments.
consent for police to search the residence. Concerned about terrorism, Ritchie also wanted to

examine the contents of a computer located inside the residence for “explosive recipes” and

possible visits to websites that “might indicate he [appellant] was making explosive mixtures and

not just pyrotechnic mixtures.” Appellant consented to a search of the computer.

Police removed the explosives and the computer on March 27, 2003. After initially

securing the residence on March 26, 2003, police guarded the residence until the next day when

officers removed the computer. They did not see anyone come or go during that time.

According to Ritchie, appellant gave his father a key to the residence “so he [appellant] could

still get into the house after he was released.”

Police took the computer to Officer Jeff Deem, a computer forensics specialist. Deem

examined the computer in June 2003 for bomb-related information. He began by removing the

hard drive and creating a “true and accurate copy of the media.” Deem found information

concerning child pornography and obtained a second search warrant before examining the

computer further.

Deem conducted a forensic examination of the computer using Ncase software and

certain key words connected to child pornography such as “lolita” and “underage.” He received

more than one hundred hits. He looked for files or photographs, and located numerous images

that were possibly child pornography.

Deem identified fifteen photographs at trial as being the ones he recovered from the

computer. Each picture was labeled with its file name as well as the path to the file’s location on

the computer. Deem testified the files were downloaded sometime between December 28, 2002

and January 3, 2003. The pictures were located in a file-sharing program called “KaZaA.” The

folder appeared on a desktop shortcut link titled “my shared folder.” The folder contained files

such as “kids/girl13yearsold.jpg” and “11_11and 13yearand mom.jpg.” The default setting for

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KaZaA is to share files with other users via the Internet, although this computer’s setting had

been manipulated not to share files. Deem testified that there was no way to tell who

downloaded the pictures or who used the computer at any given time.

Deem testified that the “systems registry” showed “R. Clark Kromer” was a registered

owner of the Windows XP software. Another application on the computer showed a user name

of “clarkkromer.” The computer was not password protected, and anyone could have access to

it. Deem testified that there is no evidence to suggest that anyone other than appellant used the

computer.

Kenneth Pew, an electrical engineer, testified that accessing the photographs was a

six-step process and that there were over five hundred photographs on the photo directory. Pew

could not testify about the shortcut link on the desktop because he did not have the hardware to

examine the actual desktop. However, in addressing the issue of desktop icons, he testified that

when one opened a desktop link, a list of files within that folder would appear on the screen.

Appellant made a motion to strike the Commonwealth’s evidence, arguing that there was

no evidence that appellant owned or used the computer at the time that the images were

downloaded. Appellant conceded that the images were taken from the computer. The court

denied the motion, finding that under a “totality of the circumstances” approach, the evidence

was sufficient to find appellant guilty beyond a reasonable doubt.

ANALYSIS

Appellant argues that the evidence at trial was insufficient to convict him of possession of

child pornography. Specifically, he contends that the Commonwealth failed to prove he

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knowingly possessed the images contained within the computer.2 For the reasons that follow, we

affirm.

In order to convict a person of possession of child pornography, the Commonwealth must

prove beyond a reasonable doubt that the individual “knowingly possesse[d] sexually explicit

visual material utilizing or having as a subject a person less than 18 years.” Code

§ 18.2-374.1:1. Appellant correctly points out that this statute does not define possession, nor

does any opinion of Virginia’s appellate courts. Thus, in this case of first impression, we must

define “possession” in the context of computer electronics, Internet technology, and intangible

images.

We take guidance from the federal case of United States v. Tucker, 305 F.3d 1193 (10th

Cir. 2002), cert. denied, 537 U.S. 1223 (2003). The appellant in Tucker was convicted of one

count of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The government’s

computer expert discovered child pornography files on both the hard drive and in the cache files

of Tucker’s computer. Tucker conceded that he knew that when he visited a Web page, the

images on that page would be sent to his browser’s cache and thereby saved on his hard drive.

Id. at 1204.

The Tucker court found that Tucker had control over the files present in his Web browser

cache file. Id. The court held:

Tucker . . . intentionally sought out and viewed child pornography
knowing that the images would be saved on his computer. Tucker
may have wished that his Web browser did not automatically cache
viewed images on his computer’s hard drive, but he concedes he
knew the Web browser was doing so. Tucker continued to view
child pornography knowing that the pornography was being saved,
if only temporarily, on his computer. In such circumstances, his
possession was voluntary. Since he knew his browser cached the

2
Appellant does not dispute that the images were sexually explicit, the subjects being
less than eighteen years of age.

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 image files, each time he intentionally sought out and viewed child
pornography with his Web browser he knowingly acquired and
possessed the images.

Id. at 1205 (footnote omitted).

While the facts in Tucker differ from the facts here, we adopt the court’s definition of

possession of computer images. There is no question here that the images were downloaded and

saved, and even linked to the desktop through a shortcut. We, therefore, begin with the premise

that someone here “sought out” child pornography. It is clear that someone “acquired” the

offensive images and brought them into appellant’s home from “cyberspace.” See United States

v. Perez, 247 F. Supp. 2d 459, 484 n.12 (S.D.N.Y. 2003) (noting that without evidence that

pornography was specifically downloaded and saved to a defendant’s computer, the offending

images “‘may well have been located in cyberspace, not in [the defendant’s] home’” (quoting

United States v. Zimmerman, 277 F.3d 426, 435 (3d Cir. 2002))). Thus, our inquiry is one of

who possessed the images after they were already procured. Our analysis is whether the

evidence sufficiently connects the appellant to the computer and the images.

While this appears to be a case consigned to the new and evolving area of computer

technology, we examine this case under familiar principles of constructive possession of

contraband. We do not need to determine whether appellant was the person who downloaded the

pornographic images, rather, we determine whether appellant knew the images existed and, if so,

did he exercise dominion and control over them after they were downloaded?3

When the sufficiency of the evidence is challenged on appeal, we review the evidence “in

the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom.” Bright v. Commonwealth, 4 Va. App. 248, 250, 356 S.E.2d 443, 444

3
We note that while the evidence shows that the images were downloaded between
December 28, 2002 and January 3, 2003, the appellant was charged with possessing the images
on March 26, 2003.
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(1987). The trial court’s judgment will not be set aside unless plainly wrong or without evidence

to support it. Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990)

(en banc). Under this standard, “a reviewing court does not ‘ask itself whether it believes that

the evidence at the trial established guilt beyond a reasonable doubt.’” Myers v.

Commonwealth, 43 Va. App. 113, 118, 596 S.E.2d 536, 538 (2004) (citation omitted and

emphasis in original). It asks instead whether “‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” Kelly v. Commonwealth, 41

Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)) (emphasis in original). Thus, we do not “substitute our judgment for that of the trier of

fact” even if our opinion were to differ. Wactor v. Commonwealth, 38 Va. App. 375, 380, 564

S.E.2d 160, 162 (2002).

In order to convict a person of illegal possession of contraband, “proof of actual

possession is not required; proof of constructive possession will suffice.” Maye v.

Commonwealth, 44 Va. App. 463, 483, 605 S.E.2d 353, 363 (2004). To support a conviction

based upon constructive possession, “the Commonwealth must point to evidence of acts,

statements, or conduct of the accused or other facts or circumstances which tend to show that the

defendant was aware of both the presence and character of the [contraband] and that it was

subject to his dominion and control.” Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d

844, 845 (1986) (citation omitted). Ownership or occupancy of the premises on which the

contraband was found is a circumstance probative of possession. Archer v. Commonwealth, 26

Va. App. 1, 12, 492 S.E.2d 826, 832 (1997).

“Circumstantial evidence is as competent and is entitled to as much weight as direct

evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except

that of guilt.” Breeden v. Commonwealth, 43 Va. App. 169, 177, 596 S.E.2d 563, 567 (2004).

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“The Commonwealth is not required to prove that there is no possibility that someone else may

have planted, discarded, abandoned or placed the [contraband]” where the contraband is

discovered. Brown v. Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) (en banc).

“To resolve the issue, the Court must consider the totality of the circumstances established by the

evidence.” Williams v. Commonwealth, 42 Va. App. 723, 735, 594 S.E.2d 305, 311 (2004).

Appellant’s reasonable hypothesis of innocence is that others, family members or friends,

could have used the computer and downloaded the images. As we earlier indicated, whether

appellant or someone else downloaded the images is not determinative of our analysis. The issue

is whether appellant knowingly possessed the images after they were previously downloaded into

the computer. The issue of who originally procured the offensive images is of no concern to our

analysis.

The trial court found that appellant had exclusive control of the residence. Appellant

gave consent to search the residence, and he admitted ownership of certain pyrotechnics found

on the premises. The court further found “the registration on the computer tied to his name,”

along with appellant’s name being associated with the computer during the time when the

computer made one hundred “hits” on child pornography. The court concluded that, most

importantly, the computer had “quick desktop access” to the folder containing the images. Using

a totality of the circumstances approach, the court found the evidence sufficient to show

appellant had control of the residence and the computer.

We conclude that the evidence supports the trial court’s findings. There is no dispute that

the computer contained pornographic images in a KaZaA shared file that could be easily

accessed through a desktop link. The computer was seized from a residence to which appellant

had a key. Appellant gave a key to his father so that he would be able to enter the premises at a

later date, indicating that appellant had control over the residence. Appellant also admitted that

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the chemical mixtures were his and that he was making “pyrotechnic devices” at the residence.

The police did not see anyone else come to or go away from the residence from March 26 until

they completed their search on March 27. The reasonable inference is that appellant lived at this

residence.

The systems registry on the computer revealed “R. Clark Kromer” as a registered owner

of the Windows XP software. Another application showed a user name of “clarkkromer.” The

KaZaA software default setting had been manually set to disallow file sharing, establishing the

user’s control and management of the files. The evidence showed that the files had been

downloaded between December 28, 2002 and January 3, 2003. The desktop shortcut, entitled

“my shared folder,” created easy access to files such as “kids/girl13yearsold.jpg” and “11_11and

13yearand mom.jpg,” making the existence of those files obvious to anyone who clicked on that

link. The images, accessible to the user through that desktop shortcut, were conveniently located

and readily viewable. The record supports the reasonable inference that appellant used the

computer and had knowledge and control over its contents.

Appellant cites Perez, for the proposition that “one cannot be guilty of possession for

simply having viewed an image on a web site, thereby causing the image to be automatically

stored in the browser’s cache, without having purposely saved or downloaded the image.”

Appellant did not contest at trial that the images were deliberately downloaded into the

computer. Because appellant did not make this argument below, we will not consider it for the

first time on appeal. See Rule 5A:18; see also Buck v. Commonwealth, 247 Va. 449, 452-53,

443 S.E.2d 414, 417 (1994) (holding that the same argument must have been raised, with

specificity, at trial before it can be considered on appeal).

We are not suggesting that anyone who ever uses a computer containing sexually explicit

images of children is guilty of possessing child pornography. Here, the reasonable inference is

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that appellant owned the residence and was the user/owner of the computer. While appellant

contends the images were “hidden” in the computer, the facts defeat his argument. The desktop

shortcut indicates that the appellant manipulated the images to be easily accessible and

continuously available. Under the specific facts of this case, it is clear that appellant possessed

the computer and the images contained therein.

For the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

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