State v. Riley

• Citation: 841 N.W.2d 431,2013 S.D. 95
• Decision Date: 18 December 2013
• Docket Number: No. 26354.,26354.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. James Duane RILEY, Defendant and Appellant.
• Court: Supreme Court of South Dakota

841 N.W.2d 431

2013 S.D. 95

STATE of South Dakota, Plaintiff and Appellee,

v.James Duane RILEY, Defendant and Appellant.

No. 26354.

Supreme Court of South Dakota.

Argued On March 18, 2013.

Reassigned Aug. 16, 2013.

Decided Dec. 18, 2013.

Marty J. Jackley, Attorney General, Timothy J. Barnaud, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Paul R. Winter, Matthew L. Skinner of Skinner & Winter, Prof., LLC, Rapid City, South Dakota, Attorneys for defendant and appellant.

GILBERSTON, Chief Justice (on reassignment).

[¶ 1.] James Riley was convicted by a jury of possessing child pornography in violation of SDCL 22–24A–3(3) and was sentenced to eight years in the penitentiary. Riley now appeals his conviction, arguing the evidence was insufficient to establish he possessed child pornography. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] To combat Internet-based child exploitation and abuse, the South Dakota Internet Crimes Against Children Task Force (Task Force) conducts undercover online investigations to identify individuals distributing or possessing child pornography. Detectives from the Task Force begin their investigation by using software that populates a list of internet protocol (IP) addresses ¹ that recently possessed visual depictions of child pornography. Detectives then input those IP addresses into an enhanced version of LimeWire ² developed by the FBI, known as “enhanced peer-to-peer software” (EP2P). EP2P allows detectives to view and download files that a particular IP address has available for download because, unlike LimeWire, which pieces together file fragments from multiple IP addresses that are currently using the file-sharing program, EP2P is a single-source download program that limits downloads to a specific IP address.

[¶ 3.] Using the special software employed by the Task Force, Detective Derek Kuchenreuther conducted an undercover investigation on October 20, 2009, to locate individuals distributing or possessing visual depictions of child pornography. His search revealed that 79 video files with titles suggestive of child pornography were being shared through LimeWire by an IP address in Hermosa, South Dakota. Kuchenreuther downloaded an entire video file (full video) and confirmed that it contained child pornography. He also downloaded a portion of a video file (partial video), which did not contain child pornography, but depicted an adult female removing the pants of a female child. Although the partial video did not portray child pornography, based on prior child pornography investigations, Kuchenreuther recognized the video file as one that contained child pornography.

[¶ 4.] After serving a subpoena on the Internet service provider, Kuchenreuther traced the IP address to James Riley's residence. Based on this information, an agent with the South Dakota Division of Criminal Investigation, Brent Gromer, applied for and obtained a warrant to search Riley's residence.

[¶ 5.] On January 15, 2010, Gromer and several other investigators executed the warrant at Riley's residence. Lori Wenzlick, Riley's girlfriend, was the only person home at that time. Wenzlick informed investigators that Riley was out-of-state, had his computer with him, and would return home around midnight. Gromer advised Wenzlick that they would return the next day at approximately 6:00 a.m. to execute the search warrant and instructed Wenzlick not to tell Riley. Riley returned home at approximately 1:00 a.m. on January 16, 2010. Contrary to Gromer's instructions, Wenzlick informed Riley that investigators had been at the residence and that they would be returning at 6:00 a.m.

[¶ 6.] At approximately 6:30 a.m., investigators executed a second search warrant at Riley's residence. Riley, a former IBM employee of 25 years, was visibly intoxicated when investigators arrived, but agreed to speak with Gromer. Riley admitted he used LimeWire to download music, “glanced at” child pornography, and saw the downloaded portion of the partial video. He denied seeing the full video. Further, Riley remarked, “[i]t's gone[,]” when Gromer mentioned that he knew Riley was sharing 79 video files containing child pornography.³ However, Riley never admitted he downloaded, possessed, or purposefully deleted videos of child pornography. Investigators seized a laptop computer, two thumb drives, a MP3 player, and three DVDs, but did not take a second computer that was also located in Riley's residence.

[¶ 7.] Investigators completed a forensic analysis of the items seized from Riley's residence. No visual depiction of child pornography was found on any of the items seized by investigators, nor were LimeWire or other peer-to-peer programs discovered on Riley's computer.

[¶ 8.] In July 2010, a grand jury indicted Riley on two counts of possession of child pornography in violation of SDCL 22–24A–3(3). Count I alleged possession of the full video and Count II alleged possession of the partial video.

[¶ 9.] A jury trial was held in January 2012. At trial, Kuchenreuther described his undercover investigation, and Gromer testified that he interviewed Riley while executing the search warrant at Riley's residence. Additionally, Wenzlick testified that Riley was the only household member who used the computer,⁴ that he used the Internet, and that he used LimeWire to download music. Wenzlick also testified that when Riley arrived home on January 16, 2010, she informed him that investigators had been at the home and would be returning at 6:00 a.m. At some point, Riley informed Wenzlick that his computer had crashed in California. Wenzlick told the jury that she observed Riley access his computer after he had returned home, but before investigators arrived, but was unable to determine what Riley was doing with the computer.

[¶ 10.] Russ Eisenbraun, a detective with the Rapid City Police Department, testified about the results of the forensic analysis. Eisenbraun explained that neither evidence of LimeWire nor any visual depiction of child pornography was found on Riley's computer, including the unallocated space ⁵ and cache.⁶ According to Eisenbraun, his examination revealed that there were several bad sectors ⁷ on the computer and that the operating system on Riley's computer had been reinstalled at approximately 5:37 a.m. on January 16, 2010. Eisenbraun explained that a computer does not automatically reinstall the operating system, but has to be directed to do so, and that the reinstallation could override any information previously contained on the unallocated space of the hard drive. Further, Eisenbraun testified that his examination revealed a significant amount of music was taken off the computer and transferred to thumb drives shortly before the operating system reinstallation occurred and that the computer only had a basic file structure that made it look “brand new.”

[¶ 11.] Eisenbraun also testified that he used a screen shot from Kuchenreuther's investigation to perform a text-string search, which searched Riley's computer for strings of words corresponding to file names generated during Kuchenreuther's investigation. Eisenbraun's search produced several hits, meaning that he found multiple text strings within the unallocated space of the computer's hard drive that matched a file name or variation of a file name generated during Kuchenreuther's investigation. Eisenbraun also found multiple text strings that matched the file name or a variation of the file name for the full video. Eisenbraun explained that a text string was “a file title clearly that suggests child pornography. It doesn't mean that it is and doesn't mean that it isn't. It's just what it is, a text that suggests.”

[¶ 12.] Riley's expert witness, Dan Meinke, testified that numerous users and computers can use one IP address, and an investigator, such as Kuchenreuther, would have no way of knowing by simply looking at an IP address “how many devices are behind [the] IP address” or “who's using it.” Meinke also testified that Eisenbraun appeared to have done a careful investigation of Riley's computer. He agreed with Eisenbraun that Riley's computer contained numerous bad sectors and that the operating system had been reinstalled. Meinke explained that “[t]he installation of an operating system on a computer in itself would not delete any—would not delete most user created files, not to say it couldn't delete some of them[,]” and that as the owner of a computer store he “reinstall[s] operating systems on customer computers on a daily basis without ever losing their data.” Finally, Meinke explained that LimeWire users can assign a file whatever name and file extension they wish. As a result, a Microsoft Word document could appear to be a video file and vice versa.

[¶ 13.] Riley moved for a judgment of acquittal at the close of the State's case-in-chief and renewed the motion prior to closing arguments. Both motions were denied. The jury ultimately found Riley guilty of Count I, relating to the full video, but failed to reach a verdict as to Count II, relating to the partial video. Riley was sentenced to eight years in the penitentiary. He appeals the trial court's denial of his motion for judgment of acquittal.

STANDARD OF REVIEW

[¶ 14.] “We review the denial of a motion for judgment of acquittal as a question of law under the de novo standard.” State v. Danielson, 2012 S.D. 36, ¶ 8, 814 N.W.2d 401, 405 (quoting State v. Overbey, 2010 S.D. 78, ¶ 12, 790 N.W.2d 35, 40). “On appeal, the question before this Court is whether the evidence was sufficient to sustain the conviction[ ].” Id. (quoting Overbey, 2010 S.D. 78, ¶ 12, 790 N.W.2d at 40). “In measuring the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting State v. Stark, 2011 S.D. 46...