Released for Publication April 2, 2015.
[Copyrighted Material Omitted]
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2011-CA-000452-MR. MADISON CIRCUIT COURT NO. 09-CR-00258.
FOR APPELLANT: Fred E. Peters, Rhey Denniston Mills, Fred Peters Law Office, Lexington, Kentucky.
FOR APPELLEE: Jack Conway, Attorney General, James Hays Lawson, David Bryan Abner, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, Kentucky.
OPINION OF THE COURT BY JUSTICE NOBLE. All sitting. All concur.
The Appellant Samuel Crabtree was convicted of 67 counts of possession of matter portraying a sexual performance by a minor for partially downloaded child-pornography videos found on his personal computer and for still images found in an inaccessible cache on the computer. The Court of Appeals affirmed his convictions. On discretionary review, this Court concludes that the evidence related to the still images was insufficient to sustain those convictions, and thus those convictions are reversed. The proof as to the videos, however, was sufficient, and there was no other
reversible error; thus those convictions are affirmed.
In 2008, Samuel Crabtree was a student at Eastern Kentucky University. He had some cognitive impairment from multiple concussions, which slowed his decision-making, and for which the university made accommodations, including allowing him additional time on tests.
At some point, Crabtree used a peer-to-peer file-sharing program, Limewire, to download images and videos from the internet. In October 2008, his computer began running slowly, and he took the computer to Resnet, a company contracted with the university to work on computers for students. A Resnet employee saw filenames that she deemed suspicious, so she contacted campus police. The responding officer did not inspect the files on the computer, but he confiscated it, obtained a search warrant, and sent it to the Kentucky State Police lab in Frankfort for examination.
When Crabtree went to retrieve his computer, he was told to contact the campus police. He immediately met with Detective Brandon Collins and agreed to talk about his laptop.
Crabtree admitted to downloading images and videos (e.g., videos showing violence) to " shock" himself, and that some of the files had been child pornography. He specifically admitted to having seen five to six still images and one video of child pornography, and stated that the video had depicted children having oral sex with an adult man. He told the detective that he felt sick upon viewing the material, knew it was wrong, and had attempted to delete the material from his computer.
He eventually wrote and signed a statement in which he admitted the following:
A while ago, out of boredom and curiosity I looked at some mature content using limewire [sic]. Limewire is a file sharing program. I looked to find disturbing images or videos that would shock me. Some of these could be classified as child pornography. I tried to delete these things from my laptop. After a while my computer became slow and a friend told me to take it to Resnet and I did. I went to retrieve my laptop but it had been confiscated and I had a good idea of the reason why. I realize that looking at this type of stuff was wrong and I feel sick because I did look at things that I should not have looked at. However I did not realize that anyone would find out.
But Crabtree's attempt to delete the material from his laptop was not completely successful. Forensic examination revealed five videos and sixty-two still images, all pornographic, that were suspected to depict children, but did not find any trace of deleted files containing child pornography, as is often possible. At trial, this was explained as possibly resulting from cleaning software having been run on the computer by Resnet before discovery of the suspicious files.
One of the videos was complete and was found in the Limewire " saved" folder. The remaining four videos were incomplete (their downloads had been interrupted) though they were still partially viewable. These videos were found in the Limewire " incomplete" folder.
The still images were not found in a readily accessible folder or file, but were found in the thumbcache of the computer operating system (Windows Vista). The thumbcache is a file used by the operating system to facilitate access to images and videos through the use of thumbnail images. The images in the thumbcache are separate from the original image or video files and are automatically generated by certain settings on the operating system when image files are on the computer.
The original still images that led to the images in the thumbnail cache were no longer on Crabtree's computer. It is impossible to know, merely from the thumbcache images, when those original images were on the computer, what the names of the files originally had been, or whether they had been seen by Crabtree. The names of the thumbnails in the thumbcache did not reflect the original file names, consisting instead of a series of characters assigned by the computer as part of the thumbnail process followed by a file extension indicating the type of file (either a .bmp or .jpg file). According to the forensic expert's testimony, the thumbcache images did not state when the original images had been saved to the hard drive, where they came from, or where on the drive (i.e., what folder) they had been saved.
Crabtree was indicted on 67 counts of possession of matter portraying a sexual performance by a minor (KRS 531.335), one count for each video and still image. The evidence at trial consisted primarily of testimony by the police officers involved and the Commonwealth's forensics expert. The jury was shown all of the still images and either still images or very short clips from the beginnings of the videos, presumably to prove that they depicted an actual sexual performance by a minor. The images and videos are not visible on the video record, having been shown to the jury just out of view of the camera on a television. In at least one instance, based on the interaction between the Commonwealth and the forensics expert, the portion of the video shown to the jury appears not to have shown a sexual act, though the expert testified, without objection, that at the end of the video, the children in the video engaged in a sex act with an adult.
At trial, the jury instruction on each count identified the file it was based on by filename. Crabtree was acquitted of the count related to the single completely downloaded video; the jury specifically found that the person depicted in the video was not a minor. As to another of the videos, which showed a fully clothed girl but had a very provocative file name, the jury found him guilty of attempted possession, a misdemeanor. He was found guilty of the remaining 65 counts. He was sentenced to five years in prison for each felony count, all to run concurrently for a total of five years.
The Court of Appeals affirmed the convictions, concluding that there was sufficient evidence that Crabtree knowingly possessed the material, that Crabtree was not entitled to an innocent-possession instruction, that the jury was not improperly allowed to determine the legal meaning of various parts of KRS 531.335 (e.g., " knowingly" ), that the trial court did not err in excluding positive evidence of Crabtree's character, and that there was not cumulative error requiring reversal.
This Court granted discretionary review to address, among other things, the sufficiency of the proof and whether Crabtree was entitled to an innocentpossession jury instruction.
A. Sufficiency of the evidence
Crabtree's motion for a directed verdict as to all charges (except the one he was ultimately acquitted of) at the end of the proof was denied. Whether a directed verdict should have been granted, and thus whether the evidence was sufficient to support a conviction, is determined by applying the standard set out in Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). The Commonwealth's proof is assumed to be true, and the court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Id. at 187. On appeal, a reviewing court must determine " if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt." Id. If so, " then the defendant is entitled to a directed verdict of acquittal." Id. Or, as summed up in a single inquiry, " the relevant question is 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." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The controlling statute is KRS 531.335, which at the time read:
A person is guilty of possession of matter portraying a sexual performance by a minor when, having knowledge of its content, character, and that the sexual performance is by a minor, he or she knowingly has in his or her possession or control any matter which visually depicts an actual sexual performance by a minor person.
KRS 531.335(1). Thus, the essential elements are (1) knowingly having possession or control (2) of a visual depiction (3) of an actual sexual performance by a minor, and (4) having knowledge of its contents. The statute contains two separate mental states: the defendant must know the content of the images and videos (i.e., that they depict a sexual performance by a minor) and the defendant must knowingly possess the images or videos. Crabtree's argument goes primarily to whether he knowingly possessed or controlled the images and videos.
The evidence related to the videos and the still images differed and thus they are addressed separately.
1. Crabtree was not entitled to a directed verdict on the charges related to the videos.
As noted above, Crabtree was acquitted of one count related to the videos, convicted of three other counts, and convicted of criminal attempt as to yet another count. The videos for which he was convicted were incomplete but were still playable to some extent.
There is no question that the videos leading to the possession convictions met the elements of a visual depiction of an actual sexual performance by a minor. Those videos were child pornography.
The question at issue is whether the proof actually showed, directly or by implication, that Crabtree knew the videos were child pornography and whether he knowingly possessed them. The burden is on the Commonwealth to prove both mental states.
First, whether Crabtree had knowledge of the content of the videos is a close question. The Commonwealth's proof focused on the filenames of the videos, which, according to a forensic expert, included various known buzzwords or code words (such as " r@gold," " brazilkids," and " pthc" ) used to indicate to those in the know that the files contain child pornography. The filenames also contained language, such as " illegal underage Lolita preteen pedo" and " baby rape," that was indicative of their content even to those unfamiliar with buzzwords.
The Commonwealth's forensics expert testified that files are found on Limewire through the use of search terms, and while she did not know which ones were used here, files are returned in a search only when the search term used shows up in the file name or its metadata (there was no testimony about whether metadata was found in the files in this case). Thus, a search using one of the buzzwords or terms clearly related to child pornography will only turn up files with those terms in the file name or metadata (though the files would not necessarily contain child pornography). And even Crabtree's witness admitted that a Limewire user would see the provocative filenames before downloading the files.
The Commonwealth's expert further testified that to search for child pornography, people usually use the buzz words as search terms, though she had seen the term " child pornography" used directly as a search term. To download a file from the list of Limewire search results, the user would click on a file name; the software would then ask whether the user wanted to download the file and, to do so, he would have to click " yes."
Both the Commonwealth's forensic expert and Crabtree's " expert"  testified, however, that an inocent search could also turn up child pornography, such as a search for " Michael Jackson's Thriller." However, given the actual names of the files on Crabtree's computer, both testified that he would have seen those file names before downloading the files. The forensic expert also testified that another Limewire user could not simply send another user a file, as with email, which simply arrives on one's computer.
Instead, she reiterated, the user would have to search for a term appearing in the filename or description, and then initiate the download and confirm it (clicking
" yes" ), which is a two-step process. She testified that the version of Limewire Crabtree had used required the two-step process (whereas some versions may not have). In short, files could not be downloaded without the user taking the affirmative steps to initiate and confirm the start of the download. Another Lim-ewire user could not have pushed files into Crabtree's computer without his participation. The Commonwealth's forensic expert also testified that her review of the literature had not shown instances where viruses and other malware put child pornography on a person's computer.
The Commonwealth offered no proof of the actual searches conducted by Crabtree. Either the version of Limewire on his computer did not keep such a history, or that history had been deleted somehow.
Given the filenames in question, there is little doubt that a person downloading such files expects them to contain child pornography. Each video filename contained language that would leave little doubt as to its expected content (and, as it turned out with respect to three of the videos, their actual content).
This proof established at least constructive knowledge of the content of the videos as Crabtree had to have seen their filenames. See Newman v. Conover, 313 F.Supp. 623, 630 (N.D.Tex. 1970) (defining " constructive knowledge" as " knowledge of facts which would put a reasonable and prudent man on notice as to the suspected nature of the material" ). But more is required to establish the mens rea of " knowingly." As Professors Lawson and Fortune have stated " [i]t is widely accepted that this culpable mental state does not exist when an individual has no belief in the existence of a fact or circumstance but has information that would have caused a reasonable person to believe in the existence of that fact or circumstance." Robert G. Lawson & William H. Fortune, Kentucky Criminal Law § 2-2(c)(1), at 45 (1998). In other words, merely negligently possessing child pornography is not a crime under the statute. Id. Rather, " the culpability involved in this mental state is described in a single word-- awareness." Id.
The question then is whether there was evidence to support a finding that Crabtree was aware of the nature of the material in the files on his computer. The Commonwealth presented no proof that Crabtree watched the videos that served as the bases of the ; charges for which he was convicted, which would have established such awareness. And while Crabtree admitted to the police that he had watched one video, ...