State v. McKinney
| Decision Date | 15 June 2005 |
| Docket Number | No. 23314.,23314. |
| Citation | 699 N.W.2d 460,2005 SD 74 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Patrick Ryan McKINNEY, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
Kelly Stricherz, Minnehaha County Public Defender's, Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
[¶ 1.] Patrick Ryan McKinney appeals his convictions and sentences for multiple counts of possession of child pornography in violation of SDCL 22-22-24.2(3). We affirm.
[¶ 2.] McKinney married Colleen O'Bleness in February 2002. She had two daughters from her prior marriage, K.H. and J.H. The couple had a computer in their bedroom and each of the girls had a computer in their rooms. The only computer with Internet access was the one in the bedroom McKinney shared with his wife. The family all had individual computer user names with individual passwords. Colleen knew McKinney's password until November 2002 when McKinney changed his password. Earlier that month, Colleen had discovered adult pornography on the computer. She questioned McKinney concerning the pornography, but he denied any knowledge of the material.
[¶ 3.] In January 2003 Colleen became concerned about McKinney's behavior. He did not contribute financially to the marriage and she thought he may be spending money over the Internet. She contacted a person with computer experience to run special software on the computer located in their bedroom. The program revealed more than 3,000 images. When opening one of the images, a picture of a "young girl, naked, leaned back in a chair with her legs spread open" was discovered. The computer technician left due to the highly offensive nature of the image. Colleen sorted through more of the images and discovered twenty to thirty photos which she believed were child pornography. These included photographs of young girls exposing themselves and also adult men engaged in sexual activity with children. She notified law enforcement and removed the computer from the home.
[¶ 4.] McKinney's wife also had law enforcement inform him that he was not welcome in the family home. During this encounter, McKinney was told the computer had "stuff" which concerned his wife. He responded by referencing "pedophiliac" and "children on the video screen." He also admitted to using KAZAA, a peer-to-peer file transferring website.
[¶ 5.] Law enforcement examined the hard drive of the computer in question and discovered child pornography in the recycle bin. These images were found under McKinney's user name "Ryan1" and all were time stamped during periods when McKinney was not at work. These images were all obtained from KAZAA.
[¶ 6.] McKinney was indicted for twenty counts of possession of child pornography in violation of SDCL 22-22-24.2. These twenty counts all related to short films that were found on the hard drive. Those files included the following titles:
The State's computer investigator testified that the specific name of each of these files would have to be "clicked" by the user for the file to be downloaded from KAZAA. Additionally, although these items had been deleted and were recovered in the computer's recycle bin, they were accessible by commercially available software. The investigator also testified that no "Trojan horse" or other virus was found on the computer that would have unknowingly downloaded these items.
[¶ 7.] A description of the heinous nature of the acts depicted in these video files is beyond our vocabulary. The videos depict rape, ejaculation, felatio and other sex acts performed on twenty separate male and female victims ranging in age from infants to adolescents. Also appalling was the subject of the testimony of McKinney's nine-year-old stepdaughter J.H. She testified at trial that while on the Internet visiting Disney sites, McKinney asked to show her something. McKinney placed her on his lap and showed her a video of a man and a little girl and "the man was licking the girl's privates." She further testified McKinney told her not to discuss this with anyone.
[¶ 8.] McKinney denied any knowledge of the images of child pornography on his computer. A jury convicted McKinney on all twenty counts. The trial court sentenced McKinney to five year prison terms for each conviction. The trial court further ordered that the sentences be served consecutively, a total of one hundred years. He appeals.
[¶ 9.] Whether there was sufficient evidence to support the convictions.
[¶ 10.] SDCL 22-22-24.2(3) provides that "[a] person is guilty of possessing, manufacturing, or distributing child pornography if the person ... [k]nowingly possesses, distributes, or otherwise disseminates any visual depiction of a minor engaging in a prohibited sexual act, or in the simulation of such an act." SDCL 22-22-24.2(3). McKinney concedes that images of child pornography were found on this computer. However, he argues that other family members (his wife and two minor stepdaughters) also had access to the computer. He also asserts there was no evidence that he intentionally downloaded these images or knew their content. Instead, he points to the fact that these images had been deleted from the computer and were recovered in its recycle bin. He further maintains that the short time frames between the download of these files and their subsequent deletion indicated a lack of knowledge of their unsavory contents by the computer user. McKinney argues these facts do not support "knowing possession" of child pornography to sustain a conviction under SDCL 22-22-24.2.
[¶ 11.] State v. Schmiedt, 525 N.W.2d 253, 254-55 (S.D.1994). Furthermore, State v. Knecht, 1997 SD 53, ¶ 22, 563 N.W.2d 413, 421. (internal citations omitted).
[¶ 12.] The facts presented to the jury established that McKinney had access to this computer and it was located in his bedroom. McKinney conceded images of child pornography were found on the computer. Additionally, the jury was presented with evidence that all of the images were related to McKinney's user name; the images were obtained from a file share network that McKinney admitted he used; none of the time stamps on the images occurred while McKinney was at work; his nine-year-old stepdaughter indicated McKinney showed her an image of child pornography; no Trojan horse or other virus was found on the computer that would unknowingly download such images; file names for these images indicated pornographic images of children and, upon learning that his wife had discovered "stuff" on the computer, McKinney referred to "pedophiliac" and "children on the video screen." This evidence, and the reasonable inferences drawn therefrom, was sufficient to sustain a reasonable theory of guilt.
[¶ 13.] Furthermore, there is no amount of time these images must be in a defendant's possession before a conviction can be upheld. As recognized in State v. Martin, 2003 SD 153, ¶ 40, 674 N.W.2d 291, 303, Although these items were ultimately retrieved from the recycle bin of this computer, the testimony established they were downloaded from KAZAA, a file share network that McKinney admitted using. Therefore, even if these files had not been possessed for a lengthy period of time, the possession was sufficient to sustain a conviction. See U.S. v. Tucker, 305 F.3d 1193, 1204 (10th Cir.2002)
(upholding conviction for possession of child pornography when defendant knowingly and deliberately deleted the images after each computer session); U.S. v. Upham, 168 F.3d 532, 537 (1st Cir.1999) ().
[¶ 14.] The jury was presented with sufficient evidence to sustain the twenty convictions for possession of child pornography.
[¶ 15.] Whether the trial court's sentence was an abuse of discretion.
[¶ 16.] The trial court sentenced McKinney to five years imprisonment for each conviction. Because the sentences were to be served consecutively, he effectively received a one hundred year sentence. McKinney contends the trial court abused its discretion in imposing this sentence because it considered approximately one hundred and fifty uncharged images of child pornography, because it did not thoroughly acquaint itself with McKinney or his prospects for rehabilitation, and because it took into account the youthfulness of the victims when rendering sentence.
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