State v. Garbaccio

• Decision Date: 24 August 2009
• Docket Number: No. 62161-1-I.,62161-1-I.
• Citation: 214 P.3d 168,151 Wn. App. 716
• Parties: STATE of Washington, Respondent, v. Christopher J. GARBACCIO, Appellant.
• Court: Washington Court of Appeals

214 P.3d 168

151 Wn. App. 716

STATE of Washington, Respondent, v. Christopher J. GARBACCIO, Appellant.

No. 62161-1-I.

Court of Appeals of Washington, Division 1.

August 24, 2009.

David Allen, Allen Hansen & Maybrown PS, Seattle, WA, for Appellant.

Dennis John McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.

DWYER, A.C.J.

¶ 1 Christopher Garbaccio appeals from his conviction for possession of depictions of minors engaged in sexually explicit conduct, in violation of RCW 9.68A.070.¹ Garbaccio contends that law enforcement authorities lacked probable cause to authorize the issuance of the warrant permitting the search of his home for computer hardware containing computer files of child pornography. However, the affidavit in support of the warrant application set forth facts indicating that evidence of possession of child pornography would likely be found on Garbaccio's home computer, thus establishing probable cause. Garbaccio also contends that the trial court erred in instructing the jury and further, that insufficient evidence was introduced at trial to sustain his conviction. Finding no error in the trial court's jury instructions and that sufficient evidence was introduced at trial to sustain Garbaccio's conviction, we affirm.

I

¶ 2 In late May 2006, after a two-week-long investigation, Seattle Police Department Detective Trent Bergmann determined that at least one known video of child pornography had been publicly available earlier that month for download from the Internet Protocol (IP) address assigned to Christopher Garbaccio's home computer.² In all, Detective Bergmann located 195 computer files with titles indicative of pornographic themes available for download from Garbaccio's computer. Of these files, 22 had titles strongly suggestive of pornographic content involving minors.

¶ 3 Five months later, on October 31, 2006, Detective Bergmann obtained a warrant to search Garbaccio's residence and to seize various computer hardware and software and other evidence of the crime of possession of child pornography. In the affidavit in support of the warrant application, Detective Bergmann attested that a video file that he had previously identified as depicting minors engaged in sexually explicit conduct, along with 21 other files with titles indicating child pornographic content, had been publicly available on May 3 for download from Garbaccio's computer. Anticipating that the judge reviewing the application might have questions concerning the possible staleness of the previously gathered evidence in light of the five-month time lag between the initial investigation and the warrant application, Detective Bergmann declared that, even if the files that had been available for download in early May could no longer be obtained from Garbaccio's computer, evidence that Garbaccio once possessed the contraband could still be obtained from the metadata of these files stored on the computer hardware. He further declared that, based on the "very large list of images that were titled as being child pornography" and available for download, he believed Garbaccio to be a collector of child pornography and that, based on his training and experience, he believed Garbaccio had therefore likely retained possession of these images. Clerk's Papers (CP) at 32.

¶ 4 On November 1, members of the ICAC task force executed the warrant to search Garbaccio's house. Law enforcement officials seized multiple items of computer hardware located therein. Although Garbaccio was not present when the authorities arrived at his residence, he arrived home from work during the search. Detective Bergmann then interviewed him, while Special Agent Brian Bujdeso of the United States Bureau of Immigration and Customs Enforcement took notes of the conversation. At the end of the interview, Detective Bergmann wrote a statement memorializing the interview for Garbaccio to sign. The statement included the admission that Garbaccio had downloaded child pornography ten times in the past year but had not kept the files, instead deleting them. Garbaccio refused to sign this statement.

¶ 5 Seattle Police Detective Timothy Luckie, a forensic computer analyst with ICAC, later examined the computer hardware seized from Garbaccio's home. He could not find any files containing viewable images of child pornography on the seized equipment. By examining the metadata of deleted files, however, he was able to determine that, at some point, the known video file that had initially raised Detective Bergmann's suspicion and the other 21 files with titles strongly suggestive of child pornography listed in the warrant application affidavit had been stored on Garbaccio's computer. Garbaccio was subsequently charged by information with one count of possessing depictions of minors engaged in sexually explicit conduct.

¶ 6 At trial, much of the testimony focused on precisely what Garbaccio had said to Detective Bergmann and Agent Bujdeso during their interview of him. The State's witnesses and Garbaccio agreed on several points. First, they agreed that Garbaccio admitted to having used the peer-to-peer file sharing software LimeWire to download pornographic photographs and videos from the Gnutella network to his home computer. They further agreed that Garbaccio explained during the interview that he had downloaded pornography in the hope of achieving the physical sense of sexual stimulation, which he had lost after becoming paralyzed from his upper torso down in 1997 as the result of a severe illness. Additionally, they were in accord that Garbaccio stated that he was familiar with the meaning of certain Internet search terms that could be used to locate child pornography, such as "Lolita." Finally, they agreed that Garbaccio had admitted to downloading and then deleting files that contained still images or videos of child pornography.

¶ 7 The witnesses sharply disputed, however, whether Garbaccio admitted to intentionally downloading child pornography. According to Detective Bergmann's testimony, Garbaccio admitted multiple times during the interview that he had deliberately downloaded child pornography after searching for publicly available files using the search terms that they had discussed. Detective Bergmann further testified that Garbaccio refused to sign the written statement memorializing the interview, even though Garbaccio had verbally confirmed the statement's accuracy. Agent Bujdeso's testimony was consistent with that of Detective Bergmann. Moreover, both Detective Bergmann and Agent Bujdeso testified that, in their respective opinions, Garbaccio could not have been confused as to whether the interview concerned the suspicion that he had intentionally downloaded child pornography, even though the interview also included mention of Garbaccio's downloading of adult pornography.

¶ 8 In contrast, Garbaccio testified that he never intentionally downloaded images of child pornography and, further, that he had not confessed to Detective Bergmann to having done so. According to Garbaccio's testimony, Detective Bergmann interchangeably used the terms adult pornography, child pornography, and pornography during the interview in a manner that allowed Detective Bergmann and Agent Bujdeso to misinterpret Garbaccio's statements. Garbaccio testified that he had developed an obsession with pornography after becoming paralyzed but that he was interested only in pornography depicting images of adults and, moreover, that he had explained this to Detective Bergmann.

¶ 9 Garbaccio also testified to telling Detective Bergmann that he would download large "batches" of files containing pornographic images without carefully examining the titles of the files. He admitted at trial to having downloaded some files containing child pornography, while stating that he had done so inadvertently and that he had immediately deleted such files from his computer upon realizing the nature of their content. Garbaccio asserted that he had explained this to Detective Bergmann during the interview. In addition, Garbaccio denied ever having used search terms likely to yield images of child pornography or ever having intentionally searched for child pornography. He testified that he was familiar with such search terms because he had read about them on Wikipedia.³ However, he maintained throughout his testimony that he had never intentionally sought to obtain images of child pornography and that he had not admitted in his interview with Detective Bergmann to having done so.

¶ 10 Garbaccio and the State entered into a stipulation that Garbaccio had in fact downloaded images of child pornography. In instructing the jury, the trial court relied on the Washington criminal pattern jury instructions.⁴ The trial court also instructed the jury that "[i]t is not a crime for an adult to possess, share or download photographs, movies or depictions of persons over 18 years of age engaged in sexually explicit conduct, as these terms are used in these instructions." CP at 122. However, the trial court declined to give the following jury instruction proposed by Garbaccio on the element of knowledge:

If you find that a person downloads files without knowing their content, but subsequently deletes these files, and as soon as that person discovers the files contain images or videos of minors engaged in sexually explicit conduct, then you shall find that the person did not act knowingly.

III Report of Proceedings (RP) at 443.

¶ 11 The trial court also refused to give Garbaccio's proposed instruction that the State must prove that he knew he was downloading files containing child pornography at the time of download. Additionally, the trial court denied Garbaccio's motion to strike the pattern instruction that it would be permissible for the jury to infer knowledge if it found that Garbaccio had "information which would lead a reasonable person in the same situation to believe that facts...