State v. McCauley

Citation820 N.W.2d 577
Decision Date24 October 2012
Docket NumberNo. A11–0606.,A11–0606.
PartiesSTATE of Minnesota, Respondent, v. Timothy James McCAULEY, Appellant.
CourtCourt of Appeals of Minnesota

OPINION TEXT STARTS HERE

Syllabus by the Court

Under Minn.Stat. § 617.247, subd. 3(a) (2010), the state must prove that a defendant knowingly disseminated a pornographic work involving a minor.

Lori Swanson, Attorney General, St. Paul, Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, MN, for respondent.

Max A. Keller, Keller Law Offices, Minneapolis, MN, for appellant.

Considered and decided by CHUTICH, Presiding Judge; PETERSON, Judge; and STONEBURNER, Judge.

OPINION

CHUTICH, Judge.

A jury found appellant Timothy McCauley guilty of two counts of dissemination of child pornography and 22 counts of possession of child pornography in violation of Minn.Stat. § 617.247, subds. 3(a), 4(a) (2010). McCauley now appeals his convictions, contending that (1) the term “dissemination” in section 617.247, subdivision 3(a) is unconstitutionally vague; (2) the jury instructions were plainly erroneous because they presented possession and dissemination as strict liability offenses; (3) the evidence is insufficient to support his convictions on counts two and four of the amended complaint; and (4) all 22 possession convictions should be vacated because possession is a lesser-included offense of dissemination.

Because we conclude that the issue of unconstitutional vagueness is not properly before us, the jury instructions were not plainly erroneous, and the evidence is sufficient to support all of the convictions, we affirm the convictions on all but two counts. We reverse the possession convictions on counts three and four because those convictions are lesser-included offenses of the dissemination convictions.

FACTS
The Investigation

The following investigative efforts revealed the presence of file-sharing software and illegal child pornography on McCauley's home computer. On June 17, 2009, an officer in the computer forensic section of the Minneapolis Police Department, Officer Dale Hanson, conducted an online search of peer-to-peer shared computer networks. The officer was looking for computer users who were sharing contraband files, such as those containing child pornography, over the Internet.

On that day, Officer Hanson identified an “Internet Protocol” address (also known as an IP address) sharing what he believed to be child pornography files using the file-sharing software “LimeWire.” After partially downloading and watching one of the files from that Internet address, he confirmed that it was a pornographic video involving a young girl who appeared to be 12–14 years old. Through an administrative subpoena issued to the Internet provider, Officer Hanson obtained information about that Internet Protocol address, including the name, e-mail address, phone number, and home address of the subscriber.

About one month later, on July 23, 2009, Officer Hanson again identified what he believed to be child pornography on a shared computer network. He downloaded one video file from many that had titles suggesting they were child pornography. When he watched it, however, he was not certain whether the person in the video was a minor or an adult. Using another administrative subpoena, Officer Hanson determined that the subscriber for that Internet Protocol address was the same as the subscriber identified in the earlier June 17 search.1 Because the subscriber lived in Plymouth, Officer Hanson then sent his data and report to the Plymouth Police Department for further investigation.

Officer Amy Goodwin of the Plymouth Police Department received Officer Hanson's report, which identified the subscriber at the Internet Protocol address as R.H. Officer Goodwin verified the address and found that R.H. lived at the home with her husband, appellant Timothy McCauley. After obtaining a search warrant for the home, officers conducted a search on August 11, 2009.

The officers found a desktop computer in the basement of the home and determined that McCauley was the primary user of the computer. When Officer Goodwin moved the computer's mouse to “wake it up,” a search results window containing several files displayed on the screen; some file names included explicit terms specifically associated with child pornography.2

While executing the search warrant, the officers questioned McCauley. When they asked him if he knew why they were at his house, he responded “possibly for porn.” McCauley admitted to using LimeWire to download music and adult pornography, and he stated that downloading pornography is “tricky.” He explained that “although he downloads mostly adult pornography, he does enjoy seeing images of 16–, 17–, or 18–year–old females.” McCauley also told officers that he had no interest in child pornography and that he immediately deleted it when it popped up on his computer.

The officers seized the computer and delivered it to the crime lab of the Hennepin County Sheriff's Office. Once there, crime lab employee Anthony Pollock searched the computer's hard drive and noted that LimeWire was installed on the computer. He found “hundreds” of adult pornography files, and also discovered 63 files that he believed could be child pornography, based on their file names. Most of these files were located in a LimeWire “Shared” folder. Pollock was not able to locate the videos downloaded by Officer Hanson on June 17 and July 23 by name; he found evidence, however, that two of those videos were previously on the computer, but had since been removed or deleted.

In addition, Pollock found a program installed on McCauley's computer called “CCleaner” that cleans or deletes various files from the user's computer. Pollock later testified that computer users often use CCleaner to get rid of illicit files, such as those containing child pornography.

Based upon the results of this investigation, McCauley was originally charged with two counts of dissemination and two counts of possession of child pornography, for the videos found by Officer Hanson on June 17 and July 23, 2009. The state amended the complaint just before trial, however, to include 21 additional counts of possession to reflect some of the files found by Pollock during his forensic examination of the computer's hard drive. A five-day trial ensued.

The Trial Testimony
Testimony Concerning LimeWire

At trial, the jury heard the following testimony about LimeWire, a software program that, until October 2010,3 anyone could download free from the Internet. LimeWire allowed users to download content from other users, such as music or video files, then share their downloaded content. The LimeWire software on McCauley's computer was installed by “default installation,” meaning that McCauley did not change any of LimeWire's default settings. One of the screens in the default installation process specifically notifies the user, “Files you download will also be shared with other users running LimeWire.”

Once LimeWire was installed, the user could search for content by entering a keyword search. The software would search the shared folders of other LimeWire users and, if it found a file with a title or other data matching that keyword or keywords, it would display the file name and basic information on the user's computer. The user could then review his search results, click on one file or several, and select “download.” There was also a “select all” function where the user could select all of the search results to download, without having to read through the results list.

Once a user downloaded a file, it would be saved in the user's “Shared” folder, where it would then be available to other LimeWire users to download. LimeWire would share all of the content downloaded by a user in a “Shared” folder by default, unless the user manually changed the settings.

The Prosecution's Evidence

Concerning the dissemination-of-child-pornography counts related to Officer Hanson's investigations on June 17, 2009, and July 23, 2009, the prosecution presented the testimony of the officer about the videos that he downloaded on those days. It also presented a seven-page, single-spaced exhibit that Officer Hanson prepared listing all of the video and text files that were available for download from McCauley's computer on those two dates. These titles included two videos labeled “PTHC,” which stands for “preteen hardcore.”

Concerning the 23 counts of possession of child pornography, the state presented the testimony of Officer Pollock and an exhibit he prepared listing 63 possible child pornography videos found on the hard drive of McCauley's computer. The jury watched 23 of these videos retrieved from McCauley's computer, including two videos that were listed in the exhibit prepared by Officer Hanson.

The Defense's Evidence

McCauley testified in his own defense and claimed that he was a “novice” at the computer and is “computer ignorant.” He first started using LimeWire on the seized computer in about 2006 to download music. He admitted to downloading 500–600 adult pornography files, but testified that he watched only about 10–15% of them. In seeking the adult pornography, he would use search terms such as “sex,” “blonde,” and “f* *k.” Once his search results came up, he “usually” read through or scanned the list and clicked to download the ones that interested him. Sometimes he clicked one at a time to download, sometimes five or six in a block, and sometimes he used “select all” to download all of his search results.

McCauley denied ever searching for child pornography or using search terms related to pedophilia. He testified that he inadvertently downloaded and opened child pornography files in the past when attempting to obtain adult pornography, but that he immediately deleted the files after he realized their content.

McCauley also testified that he never changed the default LimeWire settings and did not know...

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24 cases
  • State v. Bakken
    • United States
    • Court of Appeals of Minnesota
    • November 9, 2015
    ...727 N.W.2d 403 (Minn.2007) (affirming 23 convictions for possession of child pornography on a single computer); State v. McCauley, 820 N.W.2d 577 (Minn.App.2012) (affirming 20 convictions for possession of child pornography on a single computer), review denied (Minn. Oct. 24, 2012); State v......
  • State v. Arth, A16-0594
    • United States
    • Court of Appeals of Minnesota
    • July 3, 2017
    ...is an element of possession of a pornographic work involving a minor. Minn. Stat. § 617.247, subd. 4(a) (2008); State v. McCauley, 820 N.W.2d 577, 586 (Minn. App. 2012), review denied (Minn. Oct. 24, 2012). To prove a knowing violation of a statutory provision, the state must prove that the......
  • State v. Schwartz, A14-1397
    • United States
    • Court of Appeals of Minnesota
    • September 28, 2015
    ...that he possessed a work and to the defendant's knowledge that the work was pornographic and involved a minor. State v. McCauley, 820 N.W.2d 577, 585-86 (Minn. App. 2012) ("We cannot logically separate this mens rea requirement for the content and character of a work from the actual possess......
  • State v. Benjamin, A15-1479
    • United States
    • Court of Appeals of Minnesota
    • August 1, 2016
    ...by a preponderance of the evidence that multiple criminal offenses did not arise from a single behavioral incident. State v. McCauley, 820 N.W.2d 577, 591 (Minn. App. 2012), review denied (Minn. Oct. 24, 2012). "Whether the offenses arose from the same behavioral incident depends on the fac......
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