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
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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
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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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