State v. Beck
Decision Date | 06 June 2019 |
Docket Number | No. 18-0936,18-0936 |
Citation | 828 S.E.2d 821,242 W.Va. 2 |
Court | West Virginia Supreme Court |
Parties | STATE of West Virginia, Plaintiff below, Petitioner v. Daniel BECK, Defendant below, Respondent |
Rhonda L. Wade, Esq., Eric M. Gordon, Esq. Andrea C. Poling, Esq., Marshall County Prosecuting Attorney’s Office, Moundsville, West Virginia, Patrick Morrissey, Esq., Attorney General, Lindsay S. See, Esq., Solicitor General, Charleston, West Virginia, Counsel for the Petitioner
Kevin L. Neiswonger, Esq., Neiswonger & White, Moundsville, West Virginia, Counsel for Respondent
In this case we consider a certified question concerning West Virginia Code § 61-8C-3 (2014) and child pornography found in the cache files of a defendant’s laptop computer. Respondent Daniel Beck (Beck) is charged with one count of violating § 61-8C-3. By order entered October 19, 2018, the circuit court certified the following question to this Court:
Is possession of a laptop computer containing cache files that relate to material visually portraying a minor and/or minors engaged in sexually explicit conduct, without evidence of when or where said cache files were created and/or accessed enough to establish the defendant knowingly and intentionally possessed the material contained on said cache files in violation within the meaning [sic] of West Virginia [C]ode §[ ]61-8C-3(a)?[1 ]
The circuit court answered this question, "No."
As the State acknowledges, the thrust of that question is "whether the evidence in this case is sufficient to sustain a conviction for possession of material depicting minors engaged in sexually explicit conduct" under § 61-8C-3(a). We decline to respond to that question, though, because our answer would be an impermissible advisory opinion that depends on disputed questions of material fact—namely the state of mind of the defendant.2
Under the authority granted to this Court by West Virginia Code § 58-5-2 (2012), we reformulate the circuit court’s certified question as follows:
May a jury consider images of a minor engaged in sexually explicit conduct, contained in the temporary Internet cache files on a defendant’s computer, as evidence of a violation of West Virginia Code § 61-8C-3(a). Answer: Yes.
On November 14, 2017, a grand jury returned a one-count indictment that charged Beck with violating West Virginia Code § 61-8C-3(a) and - 3(b) (2014). The indictment alleged that on or about February 23, 2017, Beck knowingly possessed fifteen images or files on his computer and that those images visually portrayed minor children engaged in sexually explicit conduct.4
On May 18, 2018, the parties filed a joint motion to certify a question to this Court addressing the issue of cache files. Prior to certifying the question, the circuit court held a hearing to hear testimony about cache files from a State witness, Matthew Adams (Adams). Adams is an investigator for the Ohio County Prosecuting Attorney’s Office, and, for purposes of the hearing, Beck stipulated that Adams is expert in cyber-investigation and recovery and acquisition of computer data. Adams testified about the characteristics of cache files and their contents. He explained that a computer user does not intentionally download information, including images, from the Internet to cache files. Instead, a computer’s web browser automatically downloads information to the computer’s cache files when the user views a website that displays images. The browser does this to enable a computer user to access that website more quickly in the future. In other words, the information contained in the cache files enables the user to return to a website without having to download the entire site again.
Adams explained that while a user has the ability to delete cache files from his computer, the user does not intentionally create the files, in contrast to images that he downloads and intentionally saves to his computer:
Adams also explained that he can use software called Forensic Tool Kit to extract images from cache files even when a computer is not connected to the Internet. But Forensic Took Kit is not available to the general public. And without it, Adams testified, a lay person cannot access an image directly from a cache file and would have to seek out that image on the Internet in order to see it again.
Following the hearing, the circuit court granted the parties’ motion to certify a question to this Court. That question is as follows:
Is possession of a laptop computer containing cache files that relate to material visually portraying a minor and/or minors engaged in sexually explicit conduct, without evidence of when or where said cache files were created and/or accessed enough to establish the defendant knowingly and intentionally possessed the material contained on said cache files in violation within the meaning [sic] of West Virginia [C]ode §[ ]61-8C-3(a)?
The circuit court answered the question "No," then stayed the matter pending this Court’s answer to the certified question.5
"The appellate standard of review of questions of law answered and certified by a circuit court is de novo [,]"6 meaning that "we give plenary consideration to the legal issues that must be resolved to answer the question" certified by the circuit court.7
Beck is charged with violating subsection (a) of West Virginia Code § 61-8C-3. In pertinent part, that statute provides:
(a) Any person who, knowingly and willfully, sends or causes to be sent or distributes, exhibits, possesses, electronically accesses with intent to view or displays or transports any material visually portraying a minor engaged in any sexually explicit conduct is guilty of a felony.
We found a prior version of § 61-8C-3(a) to be unambiguous.8 We find the current version of the statute is similarly clear so we accept the statute’s plain meaning.9
Numerous state and federal cases have analyzed the implications of child pornography stored in temporary Internet cache files. These authorities instruct that child pornography contained in cache files may be used in at least two ways in a prosecution under § 61-8C-3(a), as contraband or as circumstantial evidence.
But, the presence of cached images of child pornography on a defendant’s computer—standing alone—cannot prove that the defendant actually possessed that contraband. As the State’s expert Adams testified, when a computer user visits a website, the computer’s browser automatically saves the images displayed on that page to the computer’s cache files. Thus, those images exist in the cache files although the user may not know that they are there.12 Exactly for that reason, we cannot conclude that the mere presence of child pornography in cache files on a particular computer proves that the individual who controls that computer knowingly and willfully possesses child pornography in violation of § 61-8C-3(a).13
Under the contraband approach the State may still proceed on a theory that the defendant constructively, rather than actually, possessed the cached images.14 Our analysis of constructive possession in State v. Cummings is instructive.15 There, Cummings argued that the State had not proven at trial that he constructively possessed matches and pseudoephedrine (items commonly used to make methamphetamine) seized from a vehicle when the State’s only evidence of possession was Cummings’s status as the vehicle’s driver.16 We rejected the State’s theory that Cummings’s presence in the stopped vehicle was enough to prove constructive possession at trial17 and, instead, adopted the rule that "the State must prove beyond a reasonable doubt that ...
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