Opinion
Case No. 1310019248
12-22-2014
STATE OF DELAWARE v. CHRISTOPHER WHEELER, Defendant.
Abigail Layton, Deputy Attorney General and David Holloway, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorneys for the State of Delaware. Thomas A. Foley, Esquire, Wilmington, Delaware, Attorney for Defendant Christopher Wheeler.
OPINION AND VERDICT
Upon Defendant Christopher Wheeler's Motion to Dismiss and/or for Judgment of Acquittal
DENIED
Decision after Trial
GUILTY ON COUNTS I THROUGH XXV OF THE INDICTMENT
Abigail Layton, Deputy Attorney General and David Holloway, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorneys for the State of Delaware. Thomas A. Foley, Esquire, Wilmington, Delaware, Attorney for Defendant Christopher Wheeler.
DAVIS, J.
On October 7, 2014, this Court held a trial in the criminal case of State of Delaware v. Christopher Wheeler, Case No. 1310019248. At the close of evidence, but before closing arguments, Defendant Christopher Wheeler filed a motion to dismiss and/or for judgment of acquittal (the "Motion"). Given the timing of the filing of the Motion, the Court continued the trial, and allowed the State time to submit a response to the Motion and for Mr. Wheeler to submit a reply to the State's response. The Court then held a hearing on the Motion on November 24, 2014. At that hearing, the Court also had the parties present their closing arguments relating to the trial. The Court then took the matters under advisement. This is the Court's ruling on the Motion and decision after trial.
I. PROCEDURAL HISTORY
On December 13, 2013, the Grand Jury returned an indictment (the "Indictment") against Mr. Wheeler. Through the Indictment, Mr. Wheeler was charged with twenty-five counts of Dealing in Child Pornography in violation of 11 Del. C. § 1109(4) ("Section 1109(4)"). This Court entered a scheduling order on April 8, 2014, setting the trial date in this criminal action for October 7, 2014.
On March 4, 2014, Mr. Wheeler filed a motion to suppress. On May 5, 2014, Mr. Wheeler filed an amended and superseding motion to suppress. Mr. Wheeler also requested that the hearing on the Motion to Suppress be an evidentiary hearing with testimony from certain witnesses and a defense expert witness. On May 15, 2014, the State filed its response to the Motion to Suppress. On May 23, 2014, the Court held a hearing on the Motion to Suppress. At the hearing, the State presented testimony from Sergeant Kevin A. Perna of the Delaware State Police Department. Mr. Wheeler also presented testimony from his expert witness, Tami L. Loehrs. The Court held an additional hearing on the Motion to Suppress on July 11, 2014, and heard final arguments from the parties on the Motion to Suppress. At the conclusion of that hearing, the Court reserved decision on the Motion to Suppress. On September 18, 2014, this Court issued an opinion and order denying the relief sought in the Motion to Suppress.
The motion to suppress and the amended and superseding motion to suppress will be collectively referred to as the "Motion to Suppress".
On October 7, 2014, this Court held a trial (the "Trial") in this criminal action. At the Trial, Mr. Wheeler waived his right to a jury trial. In support of its case at the Trial, the State introduced a series of facts stipulated to by the parties contained in a Stipulation dated October 7, 2014 (the "Stipulation"), testimony from Sergeant Perna and three exhibits - (i) the curriculum vitae of Kevin Anthony Perna, EnCE, CFCE, CCFT, MBA ("States Ex. 1"); (ii) the "Christopher Wheeler Computer Forensics Report ("States Ex. 2"); and (iii) twenty-five images of child sexual exploitation obtained off of a computer of Mr. Wheeler (collectively, "States Ex. 3") . The Court admitted, without objection, States Ex. 1, States Ex. 2 and States Ex. 3. Sergeant Perna testified on behalf of the State, was subject to cross-examination by Mr. Wheeler's counsel, and later testified in the case-in-chief of Mr. Wheeler. Mr. Wheeler also had admitted, without an objection, an exhibit ('Defense Ex. 1") entitled "Unison: Making Sense of Usenet." Mr. Wheeler's counsel used Defense Ex. 1 when questioning Sergeant Perna during Mr. Wheeler's case-in-chief. After an appropriate colloquy, Mr. Wheeler exercised his constitutional rights (State and Federal) not to testify at the Trial.
At the close of the evidence, Mr. Wheeler filed the Motion. Through the Motion, Mr. Wheeler asks this Court to dismiss the pending criminal charges under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Articles 1, sections 7 and 8 of the Delaware Constitution. In the alternative, Mr. Wheeler asks the Court for a judgment of acquittal under Rule 29 of the Superior Court Rules of Criminal Procedure ("Criminal Rule 29"). Mr. Wheeler attaches three exhibits to the Motion - (i) House of Representatives State of Delaware Legislative Hall Dover Delaware 19901, Committee Meeting Minutes, Judiciary Committee, June 3, 2008; (ii) CD of audio recording of debate on Senate floor relating to passage of HB421; and (iii) Exhibit B of a search warrant issued in connection with Case No. 1307000816. Given the timing of the filing of the Motion, the Court continued the Trial, and allowed the State time to submit a response to the Motion and for Mr. Wheeler to submit a reply to the State's response. The Court then held a hearing on the Motion on November 24, 2014. At that hearing, the Court also had the parties present their closing arguments relating to the Trial. The Court then took the matters under advisement.
In coming to the decisions herein, the Court has considered the testimony presented at the Trial, States Exs. 1-3, Defense Ex. 1, the Stipulation and the parties' closing arguments. The Court has also considered the Motion, the exhibits attached to the Motion, the State's response, Mr. Wheeler's reply, and the parties' arguments made during the November 24, 2014 hearing.
II. THE PARTIES CONTENTIONS
A. MR. WHEELER
Mr. Wheeler makes several arguments in the Motion. Mr. Wheeler contends the case should be dismissed because the Indictment presents twenty-five, Counts I through XXV, charges under Section 1109(4) and the State has alleged in each that Mr. Wheeler did intentionally compile, receive, exchange, disseminate, or possess child pornography. Mr. Wheeler then claims that because the State has not offered any evidence that "remotely suggests that Mr. Wheeler performed such acts at any point, and certainly not during October 2013, the indicted charges, under any scenario, must be dismissed."
Motion at 2 (emphasis in original). Mr. Wheeler's motion to dismiss the Indictment, in essence, mirrors his Criminal Rule 29 argument and the Court will determine the sufficiency of this argument with the Criminal Rule 29 decision.
Mr. Wheeler next argues that viewing or accessing child pornography does not violate either Section 1109(4) or 11 Del. C. §1111(1) ("Section 1111(1)"). Mr. Wheeler claims that the State, at best, has established that Mr. Wheeler viewed images of child pornography, via internet newsgroups, and that these images were automatically cached to Mr. Wheeler's hard drive on his iMac computer. Mr. Wheeler contends that "viewing" child pornography, without more, is insufficient to establish that Mr. Wheeler "possessed" child pornography. In support of this argument, Mr. Wheeler relies on a series of cases from Oregon, Alaska and New York.
Alternatively, Mr. Wheeler submits that if the Court does find and hold that Mr. Wheeler possessed child pornography, the State does not have the unfettered discretion to indict Mr. Wheeler under Section 1109(4) instead of Section 1111(1). Mr. Wheeler then goes on to make legislative and double jeopardy arguments that Section 1111(1) is the statute for prosecuting claims for possession of child pornography and that Section 1109(4) prosecutions require more than mere possession of child pornography. The legislative argument is that the legislature was somehow misled as to the two statutes and the conduct proscribed under each. The double jeopardy argument asserts that the Double Jeopardy clause of the United States Constitution and the Delaware Constitution bars the State from punishing a defendant for the same conduct under different statutes.
The Motion also ask the Court for relief under Criminal Rule 29. Mr. Wheeler claims that, even when viewing the evidence in a light most favorable to the State, the Court cannot find Mr. Wheeler guilty beyond a reasonable doubt of the offenses charged in the Indictment. Mr. Wheeler contends that there is zero evidence that Mr. Wheeler knowingly possessed the twenty-five images of child pornography that were cached to his computer.
Finally, during closing arguments, Mr. Wheeler claimed that the State cannot establish that he even viewed the images contained in States Ex. 3 and that there is no evidence that he knowingly possessed these images. Mr. Wheeler therefore argues that the State has not demonstrated beyond a reasonable doubt that Mr. Wheeler possessed child pornography in violation of Section 1109(4).
B. THE STATE
The State opposes the relief sought in the Motion. The State first argues that the Motion, except for the request under Criminal Rule 29, is procedurally barred. In support, the State notes that a motion to dismiss under Criminal Rule 12 which "attacks" the Indictment and is capable of determination without trial of the general issue should be presented prior to trial. Because Mr. Wheeler failed to move prior to trial based on alleged defects in the Indictment and provides no reason for the delay, the State contends that Mr. Wheeler's arguments relating to the Indictment are untimely.
The State then contends that the Motion should be dismissed because the evidence at Trial demonstrates that Mr. Wheeler did more than view child pornography. Instead, the State claims the evidence and all inferences drawn from the evidence demonstrate that Mr. Wheeler subscribed to newsgroups that provide access to child pornography, obtained readers that enabled him to view the child pornography and, thereafter, received child pornography, compiled it and possessed it on his computer. As such, the State argues that the law relied upon by Mr. Wheeler is not applicable here.
The State addresses Mr. Wheeler's double jeopardy argument and provides that Mr. Wheeler's analysis conflates the concept of double jeopardy and the State's ability to decide the charges to be indicted. The State takes the position that, so long as the State has probable cause, the State has the discretion to decide which charges to submit to the Grand Jury. With the facts here, the State, in its discretion, determined that probable cause existed for charges under Section 1109(4) and submitted those charges to the Grand Jury. As for double jeopardy, the State argues that Mr. Wheeler has not been charged with the same offense under two different statutes but, rather, he was charged with multiple offenses under only one statute.
The State also contends that Mr. Wheeler is not entitled to a judgment of acquittal under Criminal Rule 29. The State posits that the Court must consider the evidence and all legitimate inferences in a light most favorable to the State to determine whether the State has established a prima facia case for a finding of guilt. Using that standard, the State claims that it has presented more than enough evidence to survive a motion under Criminal Rule 29.
At the hearing on November 24, 2014, the State presented its arguments for a finding that Mr. Wheeler is guilty beyond a reasonable doubt on Counts I through XXV of the Indictment. The State relies on the testimony of Sergeant Perna, States Exs. 1-3 and applicable Delaware law. The State argues that this evidence demonstrates that Mr. Wheeler intentionally compiled and possessed child pornography, on or about October 22, 2013, in violation of Section 1109(4).
III. FACTS
In connection with the Trial, the Court heard testimony from Sergeant Perna, reviewed exhibits admitted into evidence and the Stipulation. From these, the Court makes these findings of fact for purposes of ruling on the Motion and rendering a verdict on the indicted criminal charges. While the Court also reviewed the exhibits attached to the Motion, the Court recognizes these exhibits are not evidence for purposes of rendering a verdict.
In the Stipulation, the parties have stipulated to the following facts:
1. Jurisdiction is established, in that the alleged offenses occurred in New Castle County, in the State of Delaware.
2. That the chain of custody is established, in that the items seized on October 22, 2013 from Mr. Wheeler's Tower Hill residence and office have been properly secured, and are accurately identified on pages 3-4 of Sgt. Kevin Perna's 1/7/14 report.
3. That Sgt. Perna, consistent with the protocol employed in forensic computer examinations, properly made mirror copies of the seized digital/computer devices mentioned in paragraph #2 above, and that these mirror forensic copies contain the identical information/data that would exist on the actual devices.
4. That Defendant Wheeler does not require the State to physically introduce the actual seized devices into evidence, nor the mirror forensic copies into evidence, understanding that Sgt. Perna's testimony and the 1/7/14 report capture his findings governing Sgt. Perna's forensic examination of the seized devices.
5. That Defendant Wheeler was the sole user/operator of the seized devices/computers identified on pages 3-4 of Sgt. Perna's 1/7/14 report.
6. That the 25 indicted images/counts recovered from the iMac (located in piano room), earmarked on pages 14-22 of Sgt. Perna's 1/7/14 report, constitute child pornography per Delaware law. Defendant Wheeler waives any required showing of the actual images.
Although the parties stipulated that the twenty-five indicted images submitted as States Ex. 3 constitute child pornography under Delaware law, the Court did review each image. The Court finds that each image constitutes a visual depiction of a child engaging in a prohibited sexual act.
See 11 Del. C. §1103(b), (e) and (g).
The sole witness at Trial was Sergeant Perna. The Court assessed the credibility of Sergeant Perna and his testimony during the Trial. In doing this, the Court considered Sergeant Perna's means of knowledge, strength of memory and opportunity for observation. The Court also measured the reasonableness of Sergeant Perna's testimony and the consistency, or inconsistency, of his testimony. Moreover, the Court assessed the manner and demeanor of Sergeant Perna upon the witness stand, and all other facts and circumstances shown by the evidence that affect the credibility of his testimony. The Court finds Sergeant Perna to be a credible witness.
Sergeant Perna testified that he is a member of the Delaware State Police High Tech Crimes Unit as well as the Delaware Internet Crimes Against Children Unit. Sergeant Perna has served in that role since 2003, although he began forensic work in 1999. Prior to 2003, Sergeant Perna was a trooper stationed at Troop 6 for 11 years.
Transcript of Trial Testimony dated Oct. 7, 2014 at 12 (hereafter "Tr. at ___").
Tr. at 13-14.
Tr. at 14.
In 1992, Sergeant Perna began his training at the National White Collar Crime Center which was a basic investigative data recovery course. Sergeant Perna has been a certified forensic examiner through the International Association for Computer Investigative Specialists ("IACIS") since 2000. Sergeant Perna also teaches at the Delaware State Police Academy, and is an adjunct professor at the Widener University School of Law where he teaches a class on child predators and technology. Sergeant Perna has conducted approximately 500 forensic exams on any type of media that can hold data. Mr. Wheeler's case was the first case where Sergeant Perna used Encase software.
Tr. at 14.
States Ex. 1.
Tr. at 16.
Tr. at 16.
On October 22, 2013, Sergeant Perna helped execute the search warrants at Mr. Wheeler's residence, 1517 Mt. Salem Lane (the "Residence"), and at Tower Hill School ("Tower Hill"). Sergeant Perna testified about the forensic examination of the devices seized from the Residence and Tower Hill. Sergeant Perna assisted the other investigators in the collection of digital media from the Residence and Tower Hill.
Tr. at 16.
Tr. at 16.
After Mr. Wheeler's devices were seized, Sergeant Perna started his forensic examination with the iMac found in the piano room of the Residence. Sergeant Perna began an examination of the files on the desktop under the user profile of "Christopher Wheeler". While conducting this examination for files relating to witness intimidation and tampering, Sergeant Perna viewed file names which he deemed suspicious. Sergeant Perna determined that the files were titles of videos of child pornography. As a result, Sergeant Perna obtained another warrant to search the devices seized for evidence of child pornography.
Tr. at 17-18.
Tr. at 18.
Tr. at 17.
Tr. at 26.
Tr. at 17-18.
Of the devices searched, Sergeant Perna stated that four devices had information relevant to the child sexual exploitation investigation. Sergeant Perna testified that three devices contained evidence of child sexual exploitation -- the iMac in the piano room, the PowerBook found in the master bedroom and the loose hard drive found in the Headmaster's office at Tower Hill. These three devices contained more than 2000 images of male children engaged in sexual acts. The parties have stipulated that Mr. Wheeler is the sole user and operator of the iMac, the PowerBook and the loose hard drive.
Tr. at 19.
Tr. at 19.
Tr. at 40.
Stipulation at ¶5.
Sergeant Perna testified about newsgroups and newsreader software. Sergeant Perna acknowledged he has limited expertise pertaining to newsgroups and has not personally used newsreader software. Sergeant Perna explained that newsgroups are internet discussion groups where people can exchange, browse, read, upload and download files. Sergeant Perna described that setting up the newsgroups on the user's device is a multi-step process which requires multiple proactive steps by the user in order to obtain the desired material. Sergeant Perna stated that a user must first access the internet and find the particular newsgroup which reflects that user's interest. Sergeant Perna went on to testify that the user must then subscribe to the newsgroups of interest. The subscription allows the user to download the database containing the information of interest. Sergeant Perna admitted that there is nothing per se illegal or unlawful about newsgroups and that these newsgroups exceed 100,000 in number and have varying subject matter.
Tr. at 43.
Tr. at 20.
Tr. at 21.
Tr. at 21.
Tr. at 21.
Tr. at 21.
Tr. at 57, 59.
In order to read the requested files, Sergeant Perna said that the user must also download a news reader which will convert the files to readable text. Sergeant Perna found the Unison news reader installed on the iMac. The database creates folders on the user's computer where the requested material is downloaded. Sergeant Perna explained that if there was a folder titled "alt.binaries.teen.male" on a user's computer, that folder name would indicate that the user had actively subscribed to that particular newsgroup. The newsgroup would then send the subscriber the requested content to the folder. After subscribing to a newsgroup, all content from the newsgroup is automatically uploaded and cached on the user's computer, merely by turning on the newsreader software. The user can download the requested content and save it to a separate location on the computer or simply leave it in the newsgroup folder where it can be viewed at any time. Finally, the news reader has a "delete" button which allows the user to delete material he was not interested in viewing. Further, the user has the ability to unsubscribe from a newsgroup.
Tr. at 21.
Tr. at 26
Tr. at 24.
Tr. at 72.
Tr. at 72.
Tr. at 54.
Tr. at 73.
Tr. at 74.
Tr. at 72.
Sergeant Perna testified that he found evidence of the use of child sexual exploitation newsgroups on each of the three devices containing images of child sexual exploitation. Sergeant Perna stated that the user had downloaded the Unison reader which is a fee-based, premium service program. Sergeant Perna testified that he found evidence of several newsgroups on the iMac found in the piano room. In addition, Sergeant Perna stated that the iMac had the Unison newsgroup reader and newsgroup folders containing images of child sexual exploitation. Sergeant Perna found these files under the user profile of "Christopher Wheeler." Sergeant Perna testified that the child sexual exploitation newsgroups folders were located on the desktop folder under this profile. Sergeant Perna also testified that the twenty-five images of child sexual exploitation chosen for prosecution were found in these files. These images were found in the folders "alt.fan.air." and "alt.binaries.pictures.asparagus." The State and Mr. Wheeler have stipulated that these twenty-five images recovered from the iMac constitute child pornography under Delaware law. Sergeant Perna found more than 2000 images of child sexual exploitation and more than 3000 images constituting "child erotica" in these folders on Mr. Wheeler's devices. Sergeant Perna also discovered videos of child pornography on the iMac. Sergeant Perna testified that the examination revealed that the iMac had last been accessed sometime in September 2012. Of the twenty-five images of child pornography, one image had been cached on September 2, 2005, one image on January 1, 2010 and the remaining images on specified dates in July and September 2009.
Tr. at 19.
Tr. at 26.
Tr. at 28.
Stipulation at ¶6.
State Ex.2 at 12.
Tr. at 26.
Tr. at 44, 49.
Sergeant Perna also found evidence of newsgroups and images of child sexual exploitation contained on the PowerBook found in the master bedroom of the Residence under the user profile of "C. Wheeler." There were four child sexual exploitation newsgroup folders found on this device: "alt.binaries.pictures.asparagus", "alt.fan.prettyboy", "alt.fan.rdm" and "alt.fan.snuffles." Sergeant Perna testified that these were newsgroups individuals use to find child pornography. Contained within these folders on the hard drive of this device, Sergeant Perna found additional images of child sexual exploitation.
Tr. at 31-32.
Tr. at 31.
Tr. at 32.
Tr. at 32.
Sergeant Perna stated that the loose hard drive found in a drawer in Mr. Wheeler's office at Tower Hill also contained evidence of newsgroups and images of child sexual exploitation. On this hard drive, Sergeant Perna found child pornography newsgroup folders under the user profile "Christopher Wheeler." Sergeant Perna also found messages with titles such as "young sexy boys."
Tr. at 32.
Tr. at 33.
Tr. at 35.
Sergeant Perna testified that there was no forensic evidence that Mr. Wheeler ever viewed any images uploaded onto his computer devices. Sergeant Perna also stated that you can never tell, forensically, if someone has viewed an image.
Tr. at 76, 80, 82-83.
Tr. at 81.
Finally, Sergeant Perna conducted an examination of the laptop found in the second floor office of the Residence. Sergeant Perna testified that when he opened the laptop he saw that NetShred X had been initialized before the State's investigators had arrived at the Residence. Sergeant Perna explained NetShred X is a program which erases a user's internet history, internet browsing history, any cookies and any trace of the user's internet activity from the local drive. Sergeant Perna testified that Mr. Wheeler had NetShred X and ShreadIt X (another software program that erases a user's files and folders from the hard drive) on the iMac as well. Sergeant Perna did admit that it is not illegal or otherwise unlawful to purchase and own NetShred X. Sergeant Perna attempted to conduct a "hard" shutdown in order to stop the destruction of any potential evidence due to the execution of NetShred X. During the course of his forensic exam, Sergeant Perna was able to determine that the program has been executed on October 22, 2013 at 8:04 p.m. just before the police were able to secure the Residence.
Tr. at 36-37.
Tr. at 24.
Tr. at 24-25.
Tr. at 48.
Tr. at 37.
Tr. at 37.
Sergeant Perna testified that he was able to recover 64 websites and chat rooms that Mr. Wheeler had visited. Specifically, Sergeant Perna stated that Mr. Wheeler had accessed the website "gayboystube.com" at 1:04 a.m. on October 22, 2013. Sergeant Perna testified that he could not determine how much data had been lost due to the execution of NetShred X.
States Ex. 2 at 33-38.
Tr. at 38.
Tr. at 39.
IV. RELEVENT CRIMINAL STATUTORY OFFENSES
A. SECTION 1109(4) - UNLAWFULLY DEALING IN CHILD PORNOGRAPHY
Section 1109(4) provides, in relevant part:
A person is guilty of dealing in child pornography when:
(4) The person, intentionally compiles, enters, accesses, transmits, receives, exchanges, disseminates, stores, makes, prints, reproduces or otherwise possesses any photograph, image, file, data or other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act.
In order to find Mr. Wheeler guilty under Section 1109(4), the State has to prove, beyond a reasonable doubt that Mr. Wheeler (i) compiled, received, exchanged, disseminated, or otherwise possessed an image, file or other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; and (ii) acted intentionally. "Child" means any individual less than 18 years of age. "Prohibited sexual act" includes acts like sexual intercourse, anal intercourse, masturbation, sadism, masochism, lascivious exhibition of the genitals or pubic area of a child. "Visual depiction" includes, but is not limited to:
a. Any image which is recorded, stored or contained on or by developed or undeveloped photographic film, motion picture film or videotape; or
b. Data which is stored or transmitted on or by any computer, or on or by any digital storage medium or by any other electronic means which is capable of conversion into a visual image; or
c. Any picture, or computer-generated image or picture, or any other image whether made, stored or produced by electronic, digital, mechanical or other means.
A person acts "intentionally" if "it is the person's conscious object to engage in conduct of the nature or to cause that result." Here the use of intentionally in Section 1109(4) would mean that the State has to prove that it was Mr. Wheeler's conscious objective or purpose to compile, receive, exchange, disseminate or otherwise possess an image, file or other visual depiction of a child engaging in a prohibited sexual act or the simulation of such an act.
The term "possession" is not defined by Delaware statute. Possession of contraband -- like child pornography, drugs or alike -- can be actual or constructive. The Delaware Supreme Court has held that actual possession means conscious dominion, control and authority over an object. Constructive possession involves a situation where a person who, although not in actual possession of the contraband, (i) knows the location of the contraband, (ii) has the ability to exercise dominion and control over the contraband, and (iii) intended to guide the destiny of the contraband. The State can prove possession through either direct or circumstantial evidence.
See, e.g., Lecates v. State, 975 A.2d 799, 811-812 (Del. 2009).
See, e.g., Id. at 812-13; White v. State, 906 A.2d 82, 86 (Del. 2006).
See, e.g., Lecates at 812.
Unlawfully dealing in child pornography is a class B felony.
B. SECTION 1111(1) - POSSESSION OF CHILD PORNOGRAPHY
Section 1111(1) provides:
A person is guilty of possession of child pornography when:
(1) the person knowingly possesses any visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act.
In order to find a person guilty under Section 1111(1), the State has to prove, beyond a reasonable doubt that the person (i) possessed any visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; and (ii) acted knowingly. The terms "child," "prohibited sexual act," "visual depiction," and "possession" have the same meanings as discussed above.
The state of mind necessary for conviction under 1111(1) is different than that under 1109(4) - "knowingly" as opposed to "intentionally." A person acts "knowingly" with respect to an element of an offense, "if the element involves the nature of the person's conduct or the attendant circumstances, the person is aware that the conduct is of that nature or that such circumstances exist."
Compare 11 Del. C. §1109(4) with 11 Del. C. § 1111(1).
Possession of child pornography is a class F felony.
V. ANALYSIS
A. THE STATE'S PROSECUTION DOES NOT VIOLATE THE DOUBLE JEOPARDY CLAUSES.
Mr. Wheeler argues that Section 1111(1) and Section 1109(4) are the same offense because both statutes permit prosecution for the same offense -- "possession" of child pornography. As such, given exchanges in the General Assembly and the evidence here, Mr. Wheeler contends that his prosecution under Section 1109(4) constitutes a violation of the Double Jeopardy Clauses of the United States and Delaware Constitutions. The Court will address the importance of the exchanges in the General Assembly and the evidence in this case later; however, the Court does not find that the State's prosecution of Mr. Wheeler under Section 1109(4) violates double jeopardy.
The Double Jeopardy Clause of the United States Constitution states that no "...person [shall] be subject for the same offense to be twice put in jeopardy of life or limb...." The Delaware Constitution similarly states that no "person shall be for the same offense [be] twice put in jeopardy of life or limb...." The Double Jeopardy Clauses of the United States and Delaware Constitutions protect against: (1) successive prosecutions; (2) multiple charges under separate statutes; and (3) being charged multiple times under the same statute.
Del. Const. art. 1, §8.
Panuski v. State, 3 A.3d 1098, No. 88,2010 2010 WL 3398945, at *1 (Del. 2010)(table); Williams v. State, 796 A.2d 1281, 1284-85 (Del. 2002).
The Delaware Supreme Court has addressed Mr. Wheeler's double jeopardy argument in a case substantially similar to this case. In Panuski v. State, the Delaware Supreme Court, in the context of an appeal involving Criminal Rule 61, addressed a defendant's argument that because Section 1109(4) and 1111(1) purportedly punish for the same wrongdoing his conviction under Section 1109(4) constituted double jeopardy. In rejecting the argument, the Delaware Supreme Court stated:
Panuski, 3 A.3d 1098, 2010 WL 3398945, at *1.
The problem with this argument is that Panuski was not charged with the same offense under two different statutes. He was charged with multiple offenses under only one statute - § 1109(4).
Id.
Id.
The Court finds the holding in Panuski to apply here. The State has not charged Mr. Wheeler with the same offense under different statutes. Instead, in the Indictment, the State has charged Mr. Wheeler with multiple offenses under one statute - twenty-five acts under Section 1109(4). Moreover, Mr. Wheeler's case does not involve successive prosecutions or being charged multiple times under the same statute. Under these circumstances, Mr. Wheeler's case does not constitute double jeopardy.
Indictment, Count I-XXV.
United States v. Miller and Ball v. United States, relied upon by Mr. Wheeler, do not provide for a different result. Both of these cases involve two separate convictions under two different statutes involving one act. In Miller, the defendant was convicted for both receiving and possessing child pornography and the convictions related to the same images. In Ball, the defendant was convicted for both receipt and possession of the same weapon. In vacating the judgment below, the United States Supreme Court noted that a previously convicted felon could not suffer two separate convictions or sentences where a single act established the receipt and possession. Here, Mr. Wheeler is not at jeopardy of two separate convictions under two different statutes for the same image or same act. The State is prosecuting each of the twenty-five separate images under Section 1109(4). As set forth in Panuski, such a prosecution does not constitute double jeopardy.
United States v. Miller, 527 F.3d 54 (3d Cir. 2008).
Ball v. United States, 470 U.S. 856 (1985).
Miller, 527 F.3d at 70.
Ball, 470 U.S. at 857.
There is another point of importance here. Mr. Wheeler is incorrect in saying that Section 1109(4) and 1111(1) are identical with respect to a prosecution for possession of child pornography. While both sections require the State to prove, beyond a reasonable doubt, "possession" of child pornography, the state of mind necessary to find guilt under Section 1109(4) differs from that under Section 1111(1). Section 1109(4) requires that the State prove that Mr. Wheeler "intentionally" possessed child pornography and Section 1111(1) requires that the State prove that Mr. Wheeler "knowingly" possessed child pornography. The act - possession - may be the same, but the state of mind necessary for conviction - intentionally versus knowingly - is different.
Compare 11 Del. C. §1109(4) with 11 Del. C. § 1111(1).
This may seem like a minor difference, but it is not. The Delaware Code expressly states that "[n]o person may be found guilty of a criminal offense without proof that the person had the state of mind required by the law defining the offense...." Section 1109(4) uses the term "intentionally" when providing for the state of mind required for a finding of guilt. If this Court were to use "knowingly" in its analysis under Section 1109(4) -- or instructed a jury that under Section 1109(4) the State must demonstrate that Mr. Wheeler knowingly possessed child pornography and defined "knowingly" as set forth in Section 231(c), the Supreme Court would likely overturn any conviction due to the use of the incorrect state of mind. When addressing the Criminal Rule 29 request and/or the ultimate issue of guilt under Section 1109(4), the Court will be making that determination on whether Mr. Wheeler, on or about October 22, 2013, "intentionally" compiled, received, exchanged, disseminated, or otherwise possessed an image, file or other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act.
B. THE STATE DID NOT ABUSE ITS DISCRETION IN CHARGING MR. WHEELER UNDER SECTION 1109(4)
Mr. Wheeler contends that the State abused its discretion in charging Mr. Wheeler under Section 1109(4). As support, Mr. Wheeler relies on certain exchanges in the General Assembly between (i) state representatives and (ii) a senator and a Department of Justice representative. As part of his argument, Mr. Wheeler claims that the legislative intent is that Section 1111(1), and not Section 1109(4), is to be used in connection with possession of child pornography. Mr. Wheeler argues that these exchanges demonstrate that Section 1109(4) is to be used only when the State can prove that a person downloads, saves and then disseminates child pornography. The strict canons of statutory construction and previous applications of Section 1109(4) do not support Mr. Wheeler's argument. Moreover, the Court does not find that the State abused its prosecutorial discretion in charging Mr. Wheeler under Section 1109(4).
1. Section 1109(4) is plain and unambiguous.
"[T]he meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain...the sole function of the courts is to enforce it according to its terms." If statutory text is unambiguous, this Court's role is limited to an application of the literal meaning of the statute's words.
Friends of Fletcher Brown Mansion v. City of Wilmington, 34 A.3d 1055, 1059 (Del. 2011)(quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)).
Dennis v. State, 41 A.3d 391, 393 (Del. 2012).
There has been no argument that Section 1109(4)'s language is ambiguous. In fact, Delaware Courts have allowed prosecutions under Section 1109(4) to proceed when the State has contended that the offense is that of possession of child pornography. The mere presence of another statute, here Section 1111(1), which also makes possession of child pornography illegal, does not render Section 1109(4) ambiguous or inapplicable when the State charges under Section 1109(4) for possession of child pornography.
See, e.g., Fink v. State, 16 A.3d 937 (Del. 2011)(table)(holding no Criminal Rule 61 relief where defendant contended that possession, without more, was not enough for conviction under Section 1109(4)); Panuski v. State, 3 A.3d 1098 (Del. 2010)(table)(upholding conviction under Section 1109(4) where facts from an affidavit of probable cause asserted uploading of videos and possession of hundreds of photos of child pornography); Panuski v. State, 2012 WL 1413159, at *4 (Del. Super. 2012)("Possession is sufficient under [Section 1109(4)]").
Moreover, as discussed below, exchanges between elected officials in the General Assembly on how Section 1109(4) is to be prosecuted does not make Section 1109(4) inapplicable to prosecutions pursued under the plain and unambiguous language of the legislatively enacted statute. Cf. State v. Fletcher, 974 A.2d 188, 2009 WL 1524937, at *3-4 (Del. May 27, 2009)(courts should not do by judicial implication what the General Assembly has declined to by express legislation).
2. Mr. Wheeler has not proved that the State abused its prosecutorial discretion.
Delaware courts have recognized broad prosecutorial discretion in both criminal and civil contexts. "[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision of whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion."
See State v. Anderson, C.A. No. N10A-04-004 2010 WL 4513029, at *5 (Del. Super. 2010).
Albury v. State, 551 A.2d 53, 61 n. 13 (Del. 1988)(quoting Wayte v. United States, 470 U.S. 598, 607(1985)).
In the absence of evidence to the contrary, courts presume that prosecutors have properly discharged their official duties. In Delaware, there are two situations where a court may find that a prosecutor has abused his or her discretion: (1) selective prosecution, which constitutes a denial of equal protection, or (2) vindictive prosecution, which constitutes a violation of due process. Therefore, unless a defendant presents a colorable due process or equal protection claim, the Attorney General's charging decisions are not subject to judicial oversight, even if the Attorney General handles similar cases differently. So long as "the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification," the conscious exercise of selectivity in enforcement is not a constitutional violation.
See United States v. Armstrong 415 U.S. 456 (1996).
Albury, 551 A.2d at 61 n. 13.
See Anderson v. State, 2010 WL 3103400, at *1 (Del. Super. 2010).
State v. Wharton, Nos. IN90-12-1228 to IN90-12-1236 1991 WL 138417, at *3 (Del. Super. 1991).
The record here does not support an argument that the State abused its discretion in charging Mr. Wheeler under Section 1109(4). Mr. Wheeler has presented no evidence to support a claim that the State engaged in selective prosecution which rises to the level of a denial of equal protection. Moreover, Mr. Wheeler has no factual support that the State has engaged in a vindictive prosecution of Mr. Wheeler rising to the level of a denial of his due process. Instead, Mr. Wheeler relies upon a very few and brief exchanges in the General Assembly between two Delaware state representatives and a Delaware state senator and a representative from the Delaware Department of Justice.
Motion at 8-9; Motion, Exs. A and B.
Mr. Wheeler contends that these passages support the conclusion that the State violated its prosecutorial discretion when it charged Mr. Wheeler under Section 1109(4) for mere possession of child pornography. The evidentiary record is too bare for such a conclusion. The plain language of Section 1109(4) provides for prosecution under Section 1109(4) for mere possession. In addition, given previous prosecutions under Section 1109(4), the Delaware General Assembly has had ample opportunity to amend Section 1109(4) to exclude prosecutions for possession of child pornography but has not done so. The Court does not find that Mr. Wheeler has proven that the State prosecuted him under Section 1109(4) based on an unjustifiable arbitrary standard that rises to the level of an abuse of prosecutorial discretion.
Panuski v. State, 2012 WL 1413159, at *4 ("Possession is sufficient under [Section 1109(4)]").
C. MR. WHEELER IS NOT ENTITLED TO RELIEF UNDER CRIMINAL RULE 29.
Mr. Wheeler seeks a judgment of acquittal under Criminal Rule 29. Mr. Wheeler claims that, even when viewing the evidence in a light most favorable to the State, the Court cannot find Mr. Wheeler guilty beyond a reasonable doubt of the offenses charged in the Indictment. Mr. Wheeler contends that there is insufficient to zero evidence that Mr. Wheeler knowingly possessed the twenty-five images of child pornography that were cached to his computer. Based on the findings of fact made above, the Court holds that the State has presented sufficient evidence to sustain a verdict of guilty on Counts I through XXV of the Indictment.
Upon motion under Criminal Rule 29, the Court shall enter a judgment of acquittal on one or more of the offenses charged in the indictment after the evidence is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. When ruling upon a motion for acquittal, the Court must consider the evidence and all legitimately drawn inferences from the point of view most favorable to the State. The Court should grant the motion only when the State has presented insufficient evidence to sustain a verdict of guilt.
Super Ct. R. Crim. P. 29(a).
See Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982); Conyers v. State, 396 A.2d 157 (Del. 1978).
Id.
Mr. Wheeler goes to great lengths to argue that merely viewing child pornography is not enough to sustain a guilty verdict under Section 1109(4). Mr. Wheeler is correct. In order to sustain a verdict of guilt, the State has to prove, beyond a reasonable doubt that, on or about October 22, 2013, Mr. Wheeler (i) compiled, received, exchanged, disseminated, or otherwise possessed an image, file or other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; and (ii) acted intentionally. The plain language of Section 1109(4) does not criminalize "viewing" child pornography. To the extent that the Court finds that Mr. Wheeler only viewed child pornography but did not compile, receive, exchange disseminate or otherwise possess child pornography, the Court must grant Mr. Wheeler's request for relief under Criminal Rule 29. Moreover, the Court must find for Mr. Wheeler if the Court determines that the State has not presented sufficient evidence to sustain a finding that Mr. Wheeler intentionally compiled, received, exchanged, disseminated, or otherwise possessed an image, file or other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act. Here, however, the Court finds that the State has presented sufficient evidence that Mr. Wheeler intentionally possessed twenty-five images of child pornography on October 22, 2013.
The Court understands Mr. Wheeler's argument that, because the twenty-five images cached on Mr. Wheeler's computer prior to 2013, the State cannot demonstrate that Mr. Wheeler compiled, received, exchanged or disseminated the twenty-five images on October 22, 2013. As the Court is finding that the State has presented sufficient evidence to demonstrate that Mr. Wheeler intentionally possessed child pornography on October 22, 2013, the Court finds that the State has still met its burden under Criminal Rule 29.
The state of mind for conviction under Section 1109(4) is that a person acted "intentionally." A person acts "intentionally" if "it is the person's conscious object to engage in conduct of the nature or to cause that result." The use of "intentionally" in Section 1109(4) means that the State has to prove that it was Mr. Wheeler's conscious objective or purpose to compile, receive, exchange, disseminate or otherwise possess an image, file or other visual depiction of a child engaging in a prohibited sexual act or the simulation of such an act. Because it is difficult to know what is going on in a person's mind, the Court (as the fact finder) is permitted to draw an inference, or reach a conclusion, about Mr. Wheeler's state of mind based on the facts and circumstances surrounding the act (possessing child pornography) Mr. Wheeler is alleged to have done.
See Benson v. State, 2014 WL 6998397, at * 3-4 (Del. Dec. 1, 2014); Deputy v. State, 500 A.2d 581, 596-97 (Del. 1985).
To demonstrate "possession" the State must present evidence that Mr. Wheeler had actual or constructive possession of the twenty-five images of child pornography. With respect to actual control, the State must demonstrate that Mr. Wheeler consciously had dominion, control and authority over the twenty-five images of child pornography. For constructive possession, the State must prove that Mr. Wheeler knew the location of the twenty-five images, had the ability to exercise dominion and control over the images, and intended to guide the destiny of the images. Possession can be proved through either direct or circumstantial evidence. This is a case involving constructive possession.
Mr. Wheeler and the State have extensively briefed the issue of what constitutes "possession" under Section 1109(4). Mr. Wheeler wants the Court to adopt an approach, utilized in jurisdictions like Oregon and Alaska, where images saved in a computer's cache present evidence only of intentional viewing, an act which does not fall within the definition of knowing possession. Under this approach, the State must provide additional proof that Mr. Wheeler took affirmative action to save or download the images or knew of the automatic saving mechanism of the computer.
See, e.g., State v. Barger, (Or. 2011); Worden v. State, 213 P.2d 144 (Alaska 2009).
See People v. Kent, 79 A.D.3d at 349 or 553 52,65 (N.Y. App. Div. 2010).
The State would have the Court adopt an approach, utilized in Pennsylvania and elsewhere, that a person knowingly (or intentionally) controls (or possesses) child pornography when a person intentionally seeks out child pornography and purposely makes it appear on the computer screen. By accessing the child pornography on the internet, the person has the ability to manipulate, download, copy, print, save or e-mail the images and it is not important whether the person chooses to engage in these additional activities. Under the States' approach, the Court could find that Mr. Wheeler possessed child pornography merely by its presence on the iMac computer.
See, e.g., Commonwealth v. Diodoro, 970 A.2d 1100 (Pa. 2009).
See id. at 1107.
The Court is persuaded by the reasoning set forth in People v. Kent which requires a factual analysis to determine whether possession is merely inadvertent, or knowing or intentional. In Kent, the Supreme Court of New York undertook a lengthy analysis of the tests utilized by the various jurisdictions when dealing with knowing possession of child pornography. After this analysis, the Supreme Court of New York noted that evidence in isolation is problematic as a file or image in a cache may not be the result of a computer user seeking out and downloading the image. The relevant inquiry should be whether the computer user knowingly possessed the images, in that the user exerted some control over them, or whether the presence of the images on the computer is merely inadvertent. The Supreme Court of New York held that this inquiry is a question of fact.
Kent, 79 A.D. 3d at 65-67.
Id. at 65-66.
Id. at 66-67.
Id.
Id. ("Whether the defendant knowingly or inadvertently accessed that Web page, and whether he knew that the Web page would contain child pornography when he accessed the site, are questions of fact which require an examination of the totality of the direct and circumstantial evidence.").
Like in Kent, this Court undertook a review and factual analysis of all the direct and circumstantial evidence to determine whether Mr. Wheeler inadvertently possessed the twenty-five images or intentionally possessed the twenty-five images of child pornography. The Court holds that this review and analysis demonstrates that the State has presented sufficient direct and circumstantial evidence in this case to sustain the conclusion that Mr. Wheeler intentionally possessed child pornography in violation of Section 1109(4).
The Court, in Section III above, detailed its findings of fact and specific references to those facts in the Trial's record.
The State and Mr. Wheeler stipulated that the twenty-five images were properly secured, and are accurately identified in States Ex. 2, from an iMac computer. The parties also stipulated that Mr. Wheeler was the sole user and operator of the iMac computer. Additionally, the State and Mr. Wheeler stipulated that the twenty-five images recovered from the iMac computer constitute visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act - i.e., child pornography.
The evidence here presents a case that Mr. Wheeler developed a pattern of Internet browsing for child pornography. There is more than just the twenty-five images of child pornography on the iMac. There is evidence of images of child pornography on the four seized devices of which Mr. Wheeler was the sole user and operator. Three of these devices contained more than 2000 images of male children engaged in sexual acts. The iMac computer also has child pornography videos in a file folder on the desktop. All four of the devices contained either newsgroups or websites used by individuals to find child pornography. Moreover, one device contained messages with titles like "young sexy boys."
The evidence demonstrates that Mr. Wheeler sought out and downloaded child pornography. The images of child pornography are not contained in unallocated places on the computers. Instead, the images are contained in readily accessible desktop folders under "Christopher Wheeler" or "C. Wheeler" profiles. The sheer number of images - 2000 plus - supports the reasonable inference that Mr. Wheeler intentionally, as opposed to inadvertently, possessed child pornography.
The evidence shows that newsgroups used to find child pornography - like alt.binaries.teen.male, alt.fan.air or alt.binaries.pictures.asparagus - do not inadvertently end up on a computer and, instead, must be intentionally subscribed to by a user. Mr. Wheeler's devices also contained software - e.g., Unison, a type of news reader, - that converts the binary pictures compiled from the newsgroups so that the user can view them. In order for a device to contain Unison, the user must intentionally install the software on the device. True, once subscribed to a newsgroup, the newsgroup continues to send data whether specifically requested or not, but Mr. Wheeler could have deleted the information he did not want on his computers or simply unsubscribed from the newsgroups. Mr. Wheeler did not unsubscribe. This demonstrates that Mr. Wheeler acted intentionally, and not inadvertently, with respect to possessing images of child pornography. It is clear to this fact finder that Mr. Wheeler intentionally sought out child pornography and then converted, or had the ability to covert, the data so that the child pornography could be viewed.
The presence of NetShred X is relevant to the factual inquiry. Here, Mr. Wheeler had NetShred X or a similar software (ShredIt X) on his computer devices. This type of software erases a user's internet history. Sergeant Perna testified that the NetShred X program had been activated approximately thirty minutes before the police arrived to secure the Residence and seize Mr. Wheeler's computers and electronic storage devices. While it is not illegal to own software like NetShred X, the reasonable inference here is that Mr. Wheeler activated NetShred X because he had child pornography on his computer and he tried to remove it before the State could forensically examine the computer.
Kent, 79 A.D. 3d at 67 (evidence that the defendant deleted saved images indicates the defendant's consciousness of guilt and knowledge of the illegal nature of the images).
The Court holds that the evidence in its totality is legally sufficient to establish that Mr. Wheeler intentionally possessed the twenty-five images of child pornography. The Court therefore denies Mr. Wheeler's request for a judgment of acquittal.
VI. VERDICT
The State has the burden of proving each and every element of the offenses set out in Counts I through XXV beyond a reasonable doubt. As established case law indicates, a reasonable doubt is not a vague, whimsical or merely possible doubt, but such a doubt as intelligent, reasonable, and impartial men may honestly entertain after a conscious consideration of the case. A reasonable doubt "means a substantial, well-founded doubt arising from a candid and impartial consideration of all the evidence or want of evidence." But proof beyond a reasonable doubt does not mean that the guilt of the defendant must be established to an absolute certainty. The law does not require that the proof overcomes every possible doubt. Proof beyond a reasonable doubt is proof that leaves one firmly convinced of the defendant's guilt. In determining whether the State has met its burden of proving each and every element of these offenses beyond a reasonable doubt, the Court may consider all direct and circumstantial evidence.
See, e.g., State v. Wright, 79 A.2d 399 (Del. 1911).
See State v. Winsett, 205 A.2d 510, 521-22 (Del. Super. 1964).
See id.
See id.
See id.
The State also has the burden of proof beyond a reasonable doubt that jurisdiction and venue have been proven as elements of the offenses. The State and Mr. Wheeler have stipulated that jurisdiction and venue have been established.
Stipulation at ¶1.
The Court has set out in detail the facts it considered in Section III above. The Court discussed these facts and applied them to the relevant law and elements of Section 1109(4) in Section V.C. above. The Court finds that these facts as applied to the law demonstrate that the State has proven, beyond a reasonable doubt, that Mr. Wheeler intentionally possessed twenty-five separate images of a child engaging in a prohibited sexual act in violation of Section 1109(4). Therefore, based upon the entire record, including all direct and circumstantial evidence, and the references therefrom, the Court finds Mr. Wheeler guilty on the charges set forth in Counts I through XXV of the Indictment.
Having found Mr. Wheeler guilty on Counts I through XXV, the Court does not need to consider whether Mr. Wheeler is guilty on any lesser included offense.
--------
VII. CONCLUSION
Based on the arguments above and applicable standards of review, the Motion to Dismiss and/or for Judgment of Acquittal is hereby DENIED.
For the reasons set forth herein, the Court finds Mr. Wheeler GUILTY on Counts I through XXV for Unlawfully Dealing in Child Pornography under 11 Del. C. § 1109(4).
The Prothonotary shall set this matter for sentencing. Dated: December 22, 2014
Wilmington, Delaware
/s/_________
Eric M. Davis, Judge
cc: Prothonotary
Abigail R. Layton, Esquire, Deputy Attorney General
Thomas A. Foley, Esquire