Jeror v. State
| Decision Date | 12 February 2021 |
| Docket Number | Case No. 2D19-3308 |
| Citation | 313 So.3d 178 |
| Parties | Travis Morgan JEROR, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Tim Bower Rodriguez, Special Assistant Public Defender, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
Travis Morgan Jeror appeals his judgment and sentence of eleven months and twenty-nine days in jail, to be followed by three years of probation, for transmission of child pornography by electronic device or equipment. He contends that the trial court should have granted his motion for judgment of acquittal because the State failed to prove that he knew or reasonably should have known that he transmitted the pornography by using a peer-to-peer file-sharing program. In reviewing the evidence in the light most favorable to the State, as we must, we conclude that the trial court did not err in denying the motion for judgment of acquittal and allowing the case to go to the jury. Accordingly, we affirm.
At trial, Detective James Klay was the State's primary witness. His job is to forensically analyze electronic evidence, and he is trained in how to investigate peer-to-peer software, including the "BitTorrent network." The detective explained that a peer-to-peer network is "a program that reaches out and obtains data" by communicating with other computers. Users get data from each other all over the world. Peer-to-peer network users are like a phone directory, but he acknowledged users "may not know in the background that they are being the phone directory."
The detective's work involves trying to download child pornography from throughout Florida. He searched for known "hash values" or "torrents" of child pornography. Jeror's computer had the peer-to-peer file-sharing program called wTorrent installed on it. The detective's computer communicated with Jeror's Internet Protocol (IP) address seventeen times. This meant that the user of the target IP address was actively running the program during those times. The prosecutor asked the detective if "that person was sort of advertising child pornography." The defense objected to the reference "that person" if the prosecutor was referring to a computer. The trial court sustained the objection. The detective clarified that when the peer-to-peer file-sharing program was actively running, "[t]he computer was indicating" that it had child pornography. The computers communicate by what is known as "handshakes," with "one computer talking to another computer."
The detective was able to download a video of child pornography from Jeror's IP address in Sarasota County on November 12, 2017. On February 17, 2018, he was able to download two more videos that contained child pornography from Jeror's IP address. They were "obtained via peer-to-peer." The detective did not have direct communication with Jeror and did not search Jeror's computer to get the videos. Rather, he asked the router for videos while the user was on the network. He explained that the "whole purpose" of a file-sharing peer-to-peer network such as wTorrent is to share information, and if a person is using the network, he is "seeding the network." The detective acknowledged that sometimes a user, referred to as a leech, wants to use a torrent program to look at something but does not want to share it. However, he was not aware of an opt-out function to sharing on wTorrent. Instead, the application (app) can access anything in the video folder on the computer.
After a search warrant was obtained and Jeror's computer was seized on February 28, 2018, the detective conducted a forensic examination of the computer. In his experience, an "advanced computer user" would download the types of programs found on Jeror's computer. Among Jeror's programs were three that create a virtual private network (VPN) and scramble information to hide what the user is doing, including on the internet. Some of the programs allow internet searches that are not recorded and access to the "dark web." Jeror's computer also had programs designed to erase data from the computer. Another program was Easy Tether which allows a person to tether his Android phone to his computer. Jeror's computer also had a solid-state hard drive which, at the time, the detective did not see very often.
The wTorrent program on Jeror's computer was installed and used from November 12, 2017, to February 25, 2018. That is the program from which the detective obtained the contraband through Jeror's IP address. The detective used one of his investigative computers to download wTorrent. After he hit the "get-button" a "splash screen" popped up, and the detective did a screen capture of the splash screen. The splash screen stated, "This app can access your internet connection and act as a server." The detective explained that on peer-to-peer networks "the users are the users and the servers." He did not install the wTorrent app because he did not want to expose everything on the sheriff's office network to the world.
The detective was unaware of any user license agreement for wTorrent. He explained that the app can access anything in the video folder on the computer and share it with everyone on the program. It also accesses music, pictures, and other information. The wTorrent program only shares video files after the files have been moved from the download folder to a video folder. The detective testified that "
Information on Jeror's computer showed that one afternoon, Jeror's bank statements were downloaded. About an hour and a half later, one of the child pornography videos was viewed in Jeror's downloads folder. Less than two hours later, the video was viewed again in the video folder. The detective testified that the videos were moved by "user interaction" from the downloads folder into the video folder. Had they remained in the downloads folder the app would not have shared them.
The detective was asked "if a person doesn't do anything in the world but use this program to go and get something and look at it, okay, and five minutes later" you extract it, has the user "affirmatively done anything with you other than use the BitTorrent program?" The detective responded, "Well, tacitly, yes, because that's how the program works." He agreed that by using the program, the user has "tacitly agreed to share." The detective was later asked:
The detective said that "the only thing the human being has to do in this case is have the program running at the time." But "the way to not have sent it is not to have put it in the videos folder."
As to whether Jeror was intentionally trying to share files, the detective testified without objection that "just from using the program, you should reasonably know, in my opinion, stress that again, my opinion, that you are sharing it." (Emphasis added.) He acknowledged that Jeror did not communicate with him, and he saw no indication that Jeror had offered to share child pornography with anyone else.
There was no contraband on Jeror's computer when it was searched. But there was evidence that contraband had been on the computer at some point and had been deleted. The forensic examination revealed that cleaning programs had been used to clean the computer before it was seized.
In his motion for judgment of acquittal, Jeror argued that he did nothing other than use a torrent program to download something from the internet. He argued that there has to be some affirmative act on the part of a defendant to send the image to meet the element of transmitting. He did not dispute that he downloaded and looked at the images but contended that there was no evidence "he did something that caused [the videos] to be sent."
The State argued that it met its burden in that Jeror "move[d] these files from the original download location to the videos location where the defendant, as an advanced computer user, as testified to by Detective Klay, would know that that is where the videos would be sent." Moving a file from the download folder to the video folder "caused it to be able to be downloaded by other members of that network" when Jeror was running the network. The State also argued that Jeror "saw that splash screen which indicates that is where the files will be shared from." Jeror responded that there was no evidence that he saw the splash screen, signed a user agreement, or "did anything affirmatively to acknowledge the fact that he knew he would be sharing."
In denying the motion for judgment of acquittal, the trial court noted the programs on Jeror's computer, "his knowledge of the use of these specialized programs, and what the—what flashes up once the torrent is placed on to the computer." The trial judge ruled as follows:
When I look at the evidence that the State elicited through Detective Klay and the fact that this was a publicly accessible website that the items were moved to, I am going to find that the State has met its burden to allow the case to go to the jury, and I'll deny the motion for judgment of acquittal.
In reviewing the sufficiency of the evidence, we consider " 'the evidence in the light most favorable to the State' and, maintaining this perspective, ask whether 'a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.' " Bush v. State, 295 So. 3d 179, 200 (Fla. 2020) (). The State...
To continue reading
Request your trial
-
Dodd Chiropractic Clinic, P.A. v. USAA Cas. Ins. Co.
... ... See Office of the State Courts Administrator, Changes to County Court Appeals (effective January 1, 2021), https://www.flcourts.org/Know-Your-Court (last visited Feb. 2, ... ...