Ward v. State

• Decision Date: 27 April 2007
• Docket Number: CR-05-1277.
• Citation: 994 So.2d 293
• Parties: Richard Joel WARD v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

994 So.2d 293

Richard Joel WARD v. STATE of Alabama.

CR-05-1277.

Court of Criminal Appeals of Alabama.

April 27, 2007.

Rehearing Denied June 29, 2007.

Certiorari Denied May 23, 2008 Alabama Supreme Court 1061468.

Tommy Ray Scarborough, Dothan, for appellant.

Troy King, atty. gen., and Madeline Hinson Lewis, asst. atty. gen., for appellee.

PER CURIAM.

The appellant, Richard Joel Ward, pleaded guilty to possession of obscene matter, a violation of § 13A-12-192(b), Ala.Code 1975. He was sentenced to seven years in prison; that sentence was split, and he was ordered to serve one year on work release followed by three years on probation. Before entering his guilty plea, Ward specifically reserved his right to appeal the circuit court's ruling denying his motion to dismiss the charges because, he argued, there was no evidence that he was in possession of obscene matter.

During the guilty-plea proceeding, the prosecutor stated the following facts surrounding the charges:

"We'd expect the evidence would be that the security office at Troy State University at Dothan believed that someone had been accessing one of their computers to visit child-pornography sites. The Troy State University at Dothan security administrator, John McQueen, cooperated with the Dothan Police Department. The Dothan Police Department determined that the individual who had been using this particular computer where the child-pornography sites had been accessed was this defendant, Mr. Ward.

"The State's evidence would be that that was determined by viewing videotapes, which were maintained by the Troy State University at Dothan Security Department. These videotapes, again, were provided to the Dothan Police Department. Still shots were made from the videotapes. And this defendant was identified by comparison of a 2002 arrest photo and also his Alabama driver's license photograph.

"The State's evidence would be that the computer was seized from the Troy State University of Dothan computer lab. The computer was sent to the Alabama Bureau of Investigations Criminal Investigations Center in Montgomery. At that time they, meaning, the Dothan Police Department, requested that a forensic analysis be conducted of the contents of the computer.

"Tonia, T-o-n-i-a, Wimberly with the Alabama Bureau of Investigation conducted that forensic examination of the computer, and reported to the Police Department as to her findings. And we would expect that if we had a trial that she would also testify in court as to the findings. She reported to the Police Department that she had located 288 images of possible child pornography in the temporary Internet files of the hard drive of the computer in question. She also said that there were two different user locations regarding this computer.

"The police contacted the network administrator, Keith Tanco, T-a-n-c-o, and inquired about the user numbers found with respect to this computer. The police were given user numbers for the computers, which also [cor]respond with the user numbers this defendant had access to when he used the computers.

"On September 19, 2003, the defendant came in to speak with Corporal Cherry of the Dothan Police Department and also Investigator Sheila Gray regarding the use or misuse of the computer at Troy State at Dothan. Mr. Ward was read his Miranda rights, and he agreed to speak with the Police Department without an attorney present.

"At that time he stated he had viewed child pornography on the Troy State Dothan computer. He also stated that he had used the Troy State Dothan computer for school papers and projects. The evidence would be that the images were, in fact, examined. And the State would prove at trial that the images which had been examined and which were stored on the computer were, in fact, images of children, and were, in fact, pornographic images of children."

(R. 11-14.)

Before Ward entered his guilty plea the following discussion took place:

"[Defense counsel]: ... [T]he basis of my motion to dismiss was that there is no caselaw in Alabama that directly deals with the issue of viewing pornography. All the cases that I could find dealt with people who actually possess pornography. And in that it appeared to be a case of first impression. I'd ask, your Honor, to reconsider that decision and consider the case of Osborne v. Ohio[, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990),] that I had submitted to the Court in the brief. And that case stands for the proposition that Ohio had a law that prohibited viewing and possession of pornography, whereas, in Alabama it prohibits only the possession of it. And I know, Your Honor, ruled on my initial motion, and I filed a motion to reconsider. But I'd ask you to reconsider before we do enter a plea of guilty at this time.

"The Court: Okay. Does the State have any comments?

"[Prosecutor]: Judge, we would stand on the arguments and evidence that have been presented previously to the Court. And we do contend that viewing child pornography on a computer screen is possessing child pornography. And we would also argue that when you view it and it's placed into the computer's hard drive or store on the computer as a result of your viewing it, that also constitutes possession of child pornography."

(R. 5-6.) A copy of the partial computer forensic report attached to Ward's motion to dismiss states the following:

"A temporary internet folder sometimes referred to as a cache folder, stores graphics from web sites that are viewed by the computer used. This is done automatically without any input from the computer user. This folder saves the graphics so the next time the computer user visits the web site, the loading of the web site will be faster because the graphics files are already on the computer."

(C.R. 52.)¹

Ward argues that the circuit court erred in denying his motion to dismiss the indictment because, he argues, his actions did not constitute a violation of § 13A-12-192(b), Ala.Code 1975. Specifically, he argues that there was no evidence that he possessed the obscene materials because he did not download, copy, or otherwise take possession of the materials. Ward cites Girard v. State, 883 So.2d 714 (Ala. Crim.App.2002), aff'd, 883 So.2d 717 (Ala. 2003), to support this argument. He asserts that one cannot be guilty of possessing pornographic materials merely by viewing them on a computer screen. The State argues, that, by purposely downloading the web sites that contained the obscene material, Ward had actual knowledge of and was in constructive possession of the 288 images of child pornography on the downloaded Internet sites.

Section 13A-12-192(b), Ala.Code 1975, defines the offense of possessing obscene matter:

"Any person who knowingly possesses any obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony."

At the time of Ward's actions, § 13A-12-190(12), Ala.Code 1975, defined "matter" as follows:²

"Any book, magazine, newspaper, or other printed material, or any picture, photograph, motion picture or electrical or electronic reproduction, or any other articles or materials that either are or contain a photographic or other visual reproduction of a live act, performance, or event."

"Possess" is not defined in relation to this Code section; however, it is defined in the general provisions of the criminal code. Section 13A-1-2(13), Ala.Code 1975, defines "possess" as "[t]o have physical possession or otherwise to exercise dominion or control over tangible property."

As stated above, Ward argues that according to this Court's holding in Girard, he cannot be convicted of possessing obscene matter for viewing child pornography on a computer screen. In Girard, this Court held that the proper unit of prosecution for the offense of possession of obscene matter under § 13A-12-192(b), is the possession of the obscene matter, regardless of how many items one actually possessed. In a footnote in that opinion, we stated: "[Section 13A-12-192(b), Ala. Code 1975,] does not proscribe the act of downloading obscene material or the act of receiving obscene material or the act of creating files of obscene material. The statute proscribes the act of possessing any obscene material." 883 So.2d at 717 n. 2. However, in Girard we did not address the issue presented in this case. Thus, our decision in Girard provides no guidance.

"Child pornography has gone high technology, and there is no sign of the trend abating." Don't Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. at 1228. Computer images of child pornography fall within the definition of "obscene matter," as that term is used in § 13A-12-192, Ala.Code 1975. In Rutledge v. State, 745 So.2d 912 (Ala.Crim. App.1999), this Court held that "§ 13A-12-192, Ala.Code 1975, prohibits the possession and dissemination of child pornography by any means, including visual depictions of children engaged in sexual acts displayed on computers, computer diskettes, and the Internet." Therefore, because Ward admitted to knowingly accessing Internet Web sites containing images of child pornography, and to viewing those images on a computer owned by Troy University, the question is whether Ward was in "possession" of the obscene matter.

Alabama has never had occasion to address the specific issue presented by this case; i.e., whether an individual can be in possession of pornographic materials when he or she has viewed the pornographic materials on a computer screen but has not copied or saved those files to the computer. Thus, we have looked to other jurisdictions for guidance. The United State Court of Appeals for the Tenth Circuit in United States v. Tucker, 305 F.3d 1193 (10th Cir.2002),...