Steele v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: BILL H. WALMSLEY
• Citation: Steele v. State, 2014 Ark. App. 257, 434 S.W.3d 424 (Ark. App. 2014)
• Decision Date: 30 April 2014
• Docket Number: No. CR–13–960.,CR–13–960.
• Parties: Tom Buck STEELE, Appellant v. STATE of Arkansas, Appellee.

2014 Ark. App. 257

434 S.W.3d 424

Tom Buck STEELE, Appellant

v.STATE of Arkansas, Appellee.

No. CR–13–960.

Court of Appeals of Arkansas.

April 30, 2014.

Jeff Rosenzweig, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Laura Shue, Ass't Att'y Gen., for appellee.

BILL H. WALMSLEY, Judge.

A Hot Spring County jury found appellant Tom Buck Steele guilty of twenty counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child. On two counts, the jury sentenced Steele on each count to the maximum sentence of ten years' imprisonment and a $10,000 fine. On each of the other eighteen counts, the jury sentenced him to eight years and a $2,000 fine. The trial court ran the sentences consecutively for an aggregate term of 164 years' imprisonment and a fine totaling $56,000. On appeal, Steele argues that (1) the trial court erred in denying his motions for directed verdict, (2) the trial court erred in permitting reference to his possession of other pornographic images for which he was not charged, (3) the trial court violated constitutional principles and abused its discretion in ordering consecutive sentences of imprisonment, and (4) the trial court erred in refusing to give the jury an instruction on alternative sentencing. We affirm.

Agent Wes Baxter in the Cyber Crimes Division of the Attorney General's Office testified that the National Center for Missing and Exploited Children has identified hundreds of thousands of images of known child pornography and assigned them a SHA (secure hash algorithm) value, similar to a serial number or fingerprint. Through a peer-to-peer sharing network called Shareaza, Baxter located files with these SHA values on what was later determined to be Steele's computer. Baxter downloaded two of those files onto his own computer to confirm that they contained images of child pornography. On September 15, 2011, Baxter determined that the IP address associated with the computer containing child pornography was registered to Steele at his home address in Malvern. Baxter then obtained a search warrant, which was executed on October 19, 2011. Baxter, along with local law-enforcement officers, entered Steele's residence and found two computers sitting side by side on a desk in Steele's bedroom. A Sony computer sat next to a newer Dell computer, which was hooked up to a monitor, keyboard, and mouse.

In his statement to police, Steele acknowledged that he owned both computers in his home. Steele told law-enforcement officers that his nine-year-old son lived with him. He said that others had lived with him in the past but that it had been at least six months since another adult lived with him. Steele said that his ex-wife had a key to his home because of their son. Steele initially stated that no one had access to his Sony computer but then stated that unidentified individuals, and probably his adult son, knew his passwords. When asked about the possibility that his adult son had been looking at child pornography over the past year, Steele said that “[t]here's no way.” Steele was familiar with Shareaza. According to Steele, he used only the Dell computer and not the Sony, which he described as “just a spare old computer.” Steele could not remember the last time anyone had used the Sony computer, but he then recalled that approximately one month earlier he had updated the antivirus software on the Sony computer. Steele also told officers that he worked in nuclear medicine at a hospital, that his hours were 6:30 a.m. to 3:30 p.m. every day, and that he had not recently taken any time off from work.

Special Agent Jeff Shackelford, the Director of Forensic Services for the Attorney General's Office, testified as an expert in computer-forensic analysis. He testified that only the Sony computer contained images of child pornography. That computer also contained pictures of Steele, email accounts, and browser history, including website information for Steele's son's elementary school, which was last accessed on May 27, 2011. According to Shackelford, the Sony computer was password protected, whereas the Dell computer was not. Shackelford stated that there were forty-four search terms entered into Shareaza on the Sony computer and that forty-three of those terms were indicative of child-pornography searches. Shackelford stated that he found nearly 100 files of suspected child pornography. Eighteen files were located in the Shareaza folder, sixty-six files were located in the documents-and-settings folder, and the remainder were found in the recycle bin. Shackelford testified that the Sony computer had a paid subscription to Norton antivirus software dating back several years. Shackelford testified that if a person was downloading files off of a sharing network like Shareaza, it would be important to have antivirus protection because of the possibility of obtaining malicious files.

Gail Drobena, the Senior Human Resources Manager at Mercy Hospital in Hot Springs where Steele worked, testified to relevant dates and times in 2010 and 2011 from time sheets showing when Steele had clocked in and out at work. She was questioned about two dates in particular, October 5 and 6 of 2011, which was shortly before the search warrant was executed at Steele's residence. Drobena testified that Steele had clocked out at 3:12 p.m. on October 5 and that he was not scheduled to work on October 6. Shackelford testified earlier that he had compared Steele's time sheets with the dates and times that the ninety-eight files of child pornography were created and last accessed and that not a single folder was opened at a time when Steele was confirmed to have been at work. When specifically questioned about the images associated with the twenty counts against Steele, Shackelford indicated that many had last been accessed on the afternoon of October 5 and throughout the day on October 6, 2011.

Defense counsel moved for directed verdicts on each count, arguing that the State had failed to sustain its burden of proof because neither agent could identify Steele as the person who created, modified, accessed, or downloaded the pornographic images onto the computer. The trial court denied the motions.

Angela Arbuckle, Steele's ex-wife, testified that Steele had full custody of their son because she had a drug problem in the past. Arbuckle stated that she had a key to Steele's house and was permitted to use Steele's computer. She testified that Steele insisted that no one but he and their nine-year-old son was permitted to use the newer Dell computer but that she knew the passwords for the Sony computer. Arbuckle testified that, unbeknownst to Steele, she had taken her boyfriend and an acquaintance to Steele's home and allowed them access to Steele's Sony computer while Steele was at work. When shown a picture of the two computers sitting side by side on the desk in Steele's bedroom, Arbuckle could not identify the Sony computer. Arbuckle further testified that Steele had “a lot of people,” including an adult son and daughter, living at his home off and on but that she was not certain of the dates.

Steele's former father-in-law testified that, on the afternoon of October 5 through October 6, Steele was with him and his girlfriend in Missouri. He stated that it was Steele's first motorcycle trip. The girlfriend confirmed that the visit took place on those dates at her home in Missouri.

Steele took the stand in his own defense. He testified that he “had no idea” how child pornography got on his Sony computer. According to Steele, Shareaza was installed by someone else and was used only for downloading music. He testified that since 2005 “literally tons” of people had access to the Sony computer. Steele stated that his adult son had moved out in April or May 2011 but that the son had a key and was at his house “constantly.” Steele testified that his employer had scheduled October 6 as the date on which a new system was to be installed on the machine he worked with and that, when questioned by agents on October 19, he simply did not recall taking the motorcycle trip to Missouri.

I. Sufficiency of the Evidence

A directed-verdict motion is a challenge to the sufficiency of the evidence. LeFever v. State, 91 Ark.App. 86, 208 S.W.3d 812 (2005). When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. Id. The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. Witness credibility is an issue for the fact-finder, who is free to believe all or a portion of any witness's testimony and whose duty it is to resolve questions of conflicting testimony and inconsistent evidence. Id. “A jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant's guilt from improbable explanations of incriminating conduct.” Walley v. State, 353 Ark. 586, 594, 112 S.W.3d 349, 353 (2003). Because a criminal defendant's intent can seldom be proved by direct evidence, it must usually be inferred from the circumstances surrounding the crime. Feuget v. State, 2012 Ark. App. 182, 394 S.W.3d 310.

A person commits the offense of distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child if the person knowingly possesses or views through any means, including on the internet, any photograph, film, videotape, computer program or file, computer-generated image, video game, or any other reproduction that depicts a child or incorporates the image of a child engaging in sexually explicit conduct. Ark.Code Ann. § 5–27–602(a)(2) (Repl.2006). It is a Class C felony for the first offense. Ark.Code Ann. § 5–27–602(b)(1). For a Class C felony, the...