Queen v. State

• Decision Date: 24 March 2021
• Docket Number: Case No. 2D19-3890
• Citation: 313 So.3d 931
• Parties: Christopher Ray QUEEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

313 So.3d 931

Christopher Ray QUEEN, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D19-3890

District Court of Appeal of Florida, Second District.

Opinion filed March 24, 2021.

Howard L. Dimmig, II, Public Defender, and Jeffrey Sullivan, Special Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

ATKINSON, Judge.

Christopher Ray Queen appeals his convictions and sentences for three hundred counts of possession of child pornography. Queen argues the trial court erred by overruling his hearsay objection to a digital forensic technician's testimony regarding the hash values associated with the images found on his devices. We agree as to one of those images and reverse Queen's conviction for count 47. We affirm the remainder of Queen's convictions and sentences without further discussion.

On June 12, 2017, Queen sent an email containing pornographic images from his AOL email address. AOL recognized nine images as suspected child pornography and reported the email to the National Center for Missing and Exploited Children (NCMEC) through its CyberTipline. NCMEC forwarded AOL's tip to the FBI. The FBI referred the case to the Highlands County Sheriff's Office.

Pursuant to a search warrant, law enforcement searched Queen's home and seized his cell phone, tablet, hard drive, laptop, desktop computer, and various digital storage devices. A digital forensic technician with the Highlands County Sheriff's Office forensically examined Queen's devices using Griffeye, an image and video specialization program used by law enforcement to facilitate identification of contraband files on devices containing large volumes of image and video files.

The digital forensic technician testified that the Griffeye program relies on hash values to identify contraband files. He explained that hash values are unique alphanumeric values that are permanently associated with computer files. Hash values are remarkably accurate and virtually impossible to duplicate.¹ According to the digital forensic technician, Griffeye works by comparing hash values associated with image and video files on an individual's devices to hash values of files containing child pornography from a database developed by NCMEC and Project VIC.²

For several years, NCMEC and Project VIC have been developing a database of hash values associated with images of child pornography. NCMEC and Project VIC have built their database by partnering with law enforcement agencies. Local law enforcement agencies submit confirmed images of child pornography and their associated hash values to NCMEC and Project VIC. The forensic witness explained that the organizations independently "verify"³ the material submitted by the local agencies but gave no explanation of what that verification process entails. For the purpose of this opinion, the court assumes that the process might include an independent verification that the photographs depict children. The organizations then update their database with the new hash values submitted by the local agencies. Once the database is updated, NCMEC and Project VIC disseminate their hash sets to local law enforcement agencies and other partners.

Using Griffeye, the Highlands County digital forensic technician discovered three hundred images on Queen's devices that were assigned hash values that matched hash values of images designated as child pornography in NCMEC and Project VIC's database. Queen was charged with three hundred counts of possession of child pornography in violation of section 827.071(5), Florida Statutes (2018).⁴

The case proceeded to a bench trial on March 27, 2019. At trial, the State called the digital forensic technician as a witness and asked the trial court to allow him to render opinions in the field of forensic technology. The trial court found the digital forensic technician to be qualified to render opinions in the field of his expertise. The digital forensic technician testified that the hash values of each of the three hundred images discovered on Queen's devices matched a hash value of an image associated with child pornography in NCMEC and Project VIC's database. Queen objected, arguing that this testimony was based on hearsay because the digital forensic technician relied on hash values to testify that the images contained depictions of child pornography. The trial court overruled Queen's hearsay objection because digital forensic technicians rely on the hash values in their industry.

For most of the images, the digital forensic technician was able to identify the individuals in the images found on Queen's computer as children engaging in sexual activity with adults or other children without reference to the hash values associated with the images. However, he was unable to determine whether the female depicted in Exhibit 47 was a child based on his personal assessment of the image alone. The digital forensic technician testified that the image depicted a female child engaged in sexual activity with an adult male based on the hash value associated with the image. In other words, to prove that the image was of a child, the State relied on the digital forensic technician's conclusion the image had a hash value assigned to an image that had been designated in NCMEC and Project VIC's database as child pornography. Queen renewed his hearsay objection to the evidence based on hash values, and the trial court again overruled the objection.

The trial court found Queen guilty of all three hundred counts of possession of child pornography. The trial court sentenced Queen to five years for each count but arranged for some sentences to run concurrently and some to run consecutively. Queen was sentenced to a total of 145 years in prison.

Queen argues that the trial court erred by overruling his hearsay objection to the digital forensic technician's testimony concerning hash values. He contends that the digital forensic technician's testimony that Exhibit 47 was an image depicting a female child engaged in sexual activity was based on a hearsay statement that an image with the same hash value was previously identified as an image containing child pornography by an unknown law enforcement officer who provided the image to NCMEC and Project VIC. The State responds that hash values are not inadmissible hearsay because they come from a "trustworthy source," they are "extremely accurate," and, like fingerprints and DNA samples stored in national depositories and databases, they allow law enforcement to compare images suspected of depicting child pornography to images already known to be child pornography.

While a trial court's ruling on the admissibility of evidence is generally reviewed for abuse of discretion, "the question of whether a statement is hearsay is a matter of law and is subject to de novo review on appeal." North v. State, 221 So. 3d 1235, 1236 (Fla. 2d DCA 2017) (quoting Cannon v. State, 180 So. 3d 1023, 1037 (Fla. 2015) ). Hearsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted. § 90.801(1)(c), Fla. Stat. (2019). Hearsay is generally inadmissible unless it falls under an enumerated exception. § 90.802; see also §§ 90.803, .804 (enumerating exceptions to the hearsay rule).

Here, the digital forensic technician's testimony that Exhibit 47 contained an image of child pornography included and relied upon a hearsay statement because it was not the digital forensic technician who made the determination that the image of which exhibit 47 was an identical copy depicted a child; it was an unknown individual who worked for the law enforcement agency that submitted the image to the database or one who worked for NCMEC or Project VIC who independently verified that the image was of a child. Cf. United States v. Yohe, ACM 37950 (recon), 2013 WL 3973240, at *4 (A.F. Ct. Crim. App. July 22, 2013) (determining that the Confrontation Clause was violated by the introduction of statements made by "an out-of-court, unknown and unidentified witness in a [NCMEC] forensic report" that the individuals depicted in photographs were children), vacated by ACM 37950 (recon), 2015 WL 5737178, at *7 (A.F. Crim. Ct. App. Sept. 3, 2015) (holding any error in admitting the NCMEC report was harmless under the facts of the case). Basing his conclusion on a comparison of the hash value assigned to the image with the hash sets provided by NCMEC and Project VIC, the digital forensic technician was merely conveying to the jury what...