RENDERED: SEPTEMBER 3, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0077-MR
DANIEL ARENAS APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE KATHLEEN LAPE, JUDGE ACTION NO. 18-CR-01720
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Daniel Alexander Arenas appeals from a jury verdict
finding him guilty of five counts of possession or viewing of matter portraying a
sexual performance by a minor. Arenas appeals the denial of his motion to
suppress the material found on his cell phone for failure to seize it through a
warrant and the delay in obtaining a warrant afterwards. He also appeals the denial
of his motion for a directed verdict on the basis that the Commonwealth could not prove he viewed child pornography on specific websites based on what was later
found on them. We affirm.
The underlying material facts are uncontested. Arenas’s girlfriend
saw Arenas looking at something on the internet on his phone and, being
suspicious, went through his browser history after he had fallen asleep. She
discovered searches for child pornography and links to websites.1 When she
visited those websites, she saw images of prepubescent females wearing lingerie,
some of whose genitals were visible. She took photos with her phone’s camera of
the search history she found on Arenas’s phone.
In later text messages Arenas’s girlfriend exchanged with Arenas, she
accused him “look[ing] at child porn[.]” She expressed her disgust that he “typed
in specific stuff like ‘preteen girls in panties’” and expressed worry that if she let
him stay in her life, he might touch one of her own children one day.
1 The screenshots of Arenas’s phone browser history included searches for “illegal cp” and “LOLICON AND CP.” The websites Arenas clicked on included several related to preteen girls in panties before veering off to more explicitly titled websites which included the phrases “Home Secret XXX,” “Youngest Lolas – Young teen xxx porn,” “Fresh Teen Porn,” and “Welcome to LOLITA-TIME.” Additional deleted search terms were recovered by the computer forensic analysis; Detective Fain testified that deleted search terms which were repeatedly used included “c*mshot snapchat 14 old,” “c*mshot snapchat underage,” “c*mshot snapchat young,” “c*mshot selfies and schoolgirls with fat asses” and “cp loli videos.” Detective Fain testified that some of the URLs visited by Arenas included “girlsfirstf***gdn,” “younggirlssexaaction,” “preteensexactioncollection,” and “hotgirlscollectionnakedgirlsyoung.” “CP” is an abbreviation for “child porn.” “Loli,” “Lola” and “Lolita” are terms associated with child pornography (as originally derived from the novel Lolita by Vladamir Nabokov which is told from the perspective of a sexual predator who molests his young stepdaughter and tries to justify his actions).
-2- While Arenas denied that he would ever hurt a child, he did not deny
looking at child pornography, stating “it made me feel gross and disgusting it
definitely isn’t something that I like or [I] view as good at all” justifying “I really
don’t know why I did it but I know that I didn’t think it was good[.] I definitely
viewed it as disgusting[.]”
When Arenas’s girlfriend asked “[w]hy would you Google little girls
in lingerie[?]” he responded, “I know you don’t understand this but it was just the
wrongness of it[,]” justified that it came up in “yahoo top searches when you type
in preteen[,]” and explained again “I know it’s f***ed up and I feel like a
disgusting horrible worthless person but I would never hurt a kid[.]”
About a month later, Arenas’s girlfriend showed the police the images
she had taken of Arenas’s search history and their text exchange. The case was
assigned to Detective Fain, who scheduled an interview with Arenas. However,
on the day of the interview an attorney left a message for Detective Fain and,
though he could not recall if the message explicitly said so, Detective Fain no
longer expected Arenas to attend the interview. Thus, Detective Fain decided to
seize Arenas’s cell phone because of worries it could be wiped clean. Detective
Fain went to Arenas’s residence before seeking a warrant. Arenas came outside at
the detective’s request and identified himself. Detective Fain then asked Arenas if
he had a cell phone and Arenas responded in the affirmative. Arenas pulled the
-3- phone from his pocket at Detective Fain’s request, whereupon Detective Fain
seized the phone.
Detective Fain did not search the phone immediately. Instead, he
requested, and received, a search warrant for the phone roughly two weeks after
seizing it. A forensic examination of the phone revealed internet searches
containing terms which made it plain Arenas had searched for child pornography,
though no suspected child pornography was found on the phone.
Detective Fain clicked on the links for the sites which had been
previously visited by Arenas.2 Some sites no longer worked and some contained
adult pornography. However, some sites contained what Detective Fain believed
to be child pornography. Detective Fain printed the contents of what he initially
saw on each page when visiting six websites, rather than clicking on any links
contained therein. However, Detective Fain’s search occurred many weeks after
Arenas had visited those websites. Thus, given the ever-evolving nature of the
internet,3 Detective Fain admittedly could not know that what he viewed on the
sites was what Arenas had viewed. Arenas was indicted in December 2018 on six
2 Arenas does not argue that he was not the person who conducted the searches on his phone. 3 As the United States District Court for the Western District of Kentucky has remarked, albeit in a far different context, “[w]ebsites are frequently, if not constantly, updated. Methods of access to portions of the website can change on a regular basis and links to previous posts on a website are constantly added and taken away from sites.” Salyer v. Southern Poverty Law Center, Inc., 701 F. Supp. 2d 912, 918 (W.D. Ky. 2009).
-4- counts of possession or viewing of matter portraying a sexual performance by a
minor, a class D felony.
In February 2019, Arenas filed a motion to suppress evidence
resulting from the warrantless seizure of his phone. After holding a hearing in
March 2019, the circuit court denied the motion. The charges against Arenas then
proceeded to an August 2019 jury trial.
At trial, Arenas’s former girlfriend testified and screenshots of
Arenas’s search history and their text exchange were admitted into evidence. The
person who conducted the forensic examination of the phone also testified about
how he recovered deleted search terms from the phone. Detective Fain also
testified and submitted the printouts he had obtained from the initial page of each
website he visited (which he believed constituted child pornography); these
printouts were admitted into evidence.
The trial court denied Arenas’s motion for a directed verdict on five
charges but granted a directed verdict on one charge since the printouts from that
website did not show nude minors. Instead it showed young girls who were
wearing makeup and clothed in tank tops and shorts, swimsuits, and pageant-wear.
That website contained a list of links whose titles appeared to indicate that they
contained explicit material relating to children.
-5- The remaining printouts displayed thumbnail galleries of various
sexual photographs. The thumbnail photographs were of sufficient size and clarity
to allow a visitor to easily view their contents and were displayed in either long
columns or grids. These thumbnail photographs represented videos which could
be accessed by clicking on them. While not every thumbnail photograph depicted
an actual sexual performance by a minor person,4 on each website there was a
plethora of thumbnail photographs which depicted nude prepubescent children or
young teens, with some of those photographs depicting graphic in-progress sexual
acts. Each of the five website pages had dozens of thumbnail photographs which
appeared to depict actual sexual performances by minor persons.
Arenas obtained, over the Commonwealth’s objection, an instruction
for attempted viewing of child pornography as a lesser included offense, as
supported by the evidence. In closing argument, Arenas’s counsel argued that it
would be appropriate for the jury to convict Arenas on the lesser included offenses.
Specifically, counsel said he “would be a fool to stand in front of you and tell you
that Daniel Arenas didn’t attempt, by his searches, to, to access child
pornography . . . . I can’t do that. I know better. You know better. What we
4 Some of the photographs appeared to depict sexual activities between adults, other images might have questionably been of young-looking adults, still other photographs were “zoomed in” to such an extent that it was not evident if one party was a minor.
-6- don’t know is if he actually succeeded or not. You’re not presented with any
evidence about that.”
The jury found Arenas guilty of five counts of possession or viewing
of matter portraying a sexual performance by a minor, thereby implicitly rejecting
counsel’s invitation to find Arenas only guilty of attempted viewing of those
matters. Consistent with the jury’s recommendation, the trial court sentenced
Arenas to a total of ten years’ imprisonment (two years on each count, to be served
consecutively). Arenas then filed this appeal.
Arenas first argues that the trial court erred by denying his motion to
suppress. “Our standard of review of the trial court’s denial of a suppression
motion is twofold. First, the trial court’s findings of fact are conclusive if they are
supported by substantial evidence; and second, the trial court’s legal conclusions
are reviewed de novo.” Milam v. Commonwealth, 483 S.W.3d 347, 349 (Ky.
2015). The relevant material facts are not disputed. Thus, we focus on a de novo
review of the trial court’s legal conclusions.
Arenas contends Detective Fain improperly seized Arenas’s cell
phone. Generally, “a seizure works a lesser invasion of privacy than a search.”
Hedgepath v. Commonwealth, 441 S.W.3d 119, 128 (Ky. 2014). This is because
“[a] seizure affects only the person’s possessory interests; a search affects a
person’s privacy interests.” Segura v. United States, 468 U.S. 796, 806, 104 S.Ct.
-7- 3380, 3386, 82 L.Ed.2d 599 (1984). Consequently, a warrant is generally required
to search the contents of a cell phone. Riley v. California, 573 U.S. 373, 401, 134
S.Ct. 2473, 189 L.Ed.2d 430 (2014) (“[o]ur holding, of course, is not that the
information on a cell phone is immune from search; it is instead that a warrant is
generally required before such a search, even when a cell phone is seized incident
to arrest.”); Tucker v. Commonwealth, 611 S.W.3d 297, 299 (Ky.App. 2020)
(“[a]ccordingly, a search warrant is generally required before an officer can search
the data contained within a person’s cell phone[.]”).
The question under these facts is twofold: Did Detective Fain
permissibly seize the cell phone? If not, then the trial court should have granted
the motion to suppress. If so, was the roughly two-week post-seizure delay in
seeking a search warrant unreasonable?
The parties have not cited, nor have we independently located,
published Kentucky authority involving similar facts. However, there is
unpublished Kentucky precedent, as well as extraterritorial precedent, which
generally tends to undercut Arenas’s arguments.
In Taylor v. Commonwealth, No. 2014-SC-000703-MR, 2016 WL
2605296 (Ky. May 5. 2016) (unpublished),5 the police received consent to search a
5 We discuss Taylor here pursuant to Kentucky Rule of Civil Procedure (CR) 76.28(4)(c) as there appears to be “no published opinion that would adequately address the issue before the court.”
-8- residence for a video camera allegedly used to record sexually explicit images of
children. The police did not find a video camera but seized other electronic items
“onto which the photographs or video recordings could have been transferred[,]”
such as computers and cell phones. Id. at *1. Taylor declined the police’s request
to search his computer, so the police obtained a search warrant before conducting a
forensic examination, which revealed the computer contained sexually explicit
photos of a minor. Taylor filed a motion to suppress, arguing the seizure was
improper. The trial court denied the motion, after which Taylor entered a
conditional guilty plea.
On appeal, Taylor argued the motion to suppress should have been
granted, but our Supreme Court disagreed, holding in relevant part:
A seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in that property. As a seizure affects only a person’s possessory interests, it is generally considered less intrusive than a search which affects a person’s privacy interests.
In recognition of this, the United States Supreme Court has interpreted the Fourth Amendment to permit seizure of property, pending issuance of a warrant to examine its contents, if law enforcement authorities have probable cause to believe that the container holds contraband or evidence of a crime. Additionally, probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.
-9- In the case at bar, the police were permitted to seize Taylor’s computer as they had probable cause to do so. Melissa informed Officer Willis about Taylor’s sexual abuse. Her account was supported by Charlotte’s statement to the police that Melissa had previously informed her about the abuse. Additionally, when Taylor was interviewed by the police he admitted to owning a video camera and that it was located inside the residence. While the police were unable to recover the camera during their search, they did locate electronic devices (including Taylor’s computer) onto which Taylor could have transferred the photographs and videos.
Based on the statements of Melissa and Charlotte there was probable cause for the police to believe that the computer contained evidence of a crime. As such, the police temporarily seized the computer to examine it a later date and to avoid the destruction of evidence. The temporary seizure of Taylor’s computer, while the police obtained a warrant to search it, did not meaningfully interfere with his possessory interests. See United States v. Mitchell, 565 F.3d 1347, 1350 (11th Cir. 2009) (seizure of a computer “to ensure that the hard drive was not tampered with before a warrant was obtained” did not violate the Fourth Amendment). As such, the circuit court properly rejected Taylor’s argument that the computer was improperly seized.
Id. at *3-4 (internal quotation marks and some citations omitted).
The same fundamental conclusion is appropriate here. Arenas’s
girlfriend saw pictures of prepubescent females on Arenas’s phone, some of whose
genitals were visible. Arenas’s girlfriend also took photos of the search terms
Arenas had used on his phone, and some of those searches were unmistakably
efforts to retrieve child pornography. Moreover, Arenas’s girlfriend took
-10- screenshots of text exchanges she had with Arenas, in which he essentially
admitted having looked for child pornography due to being lured by the
“wrongness” of it. The police thus had probable cause to believe that Arenas’s cell
phone contained evidence of criminal wrongdoing by Arenas. It is beyond serious
debate that the information on a phone can be deleted (wiped) quickly and easily,
and a phone can also easily be concealed or destroyed, thereby heightening the
need to obtain possession of the phone quickly.
Arenas stresses what Detective Fain did not know at the time of the
seizure. For example, Detective Fain forthrightly admitted that he did not know
that the phone he seized was the same phone whose contents Arenas’s girlfriend
had viewed. But Detective Fain knew the phone seen by the girlfriend was an
iPhone and the phone Detective Fain seized was an iPhone.
Probable cause only requires “a fair probability that . . . evidence of a
crime will be found in a particular place” rather than “certainty that . . . evidence
will be present in the place to be searched.” Moore v. Commonwealth, 159 S.W.3d
325, 329 (Ky. 2005). The fact that Detective Fain did not know for sure that the
phone he seized was the same phone Arenas’s girlfriend had viewed does not
defeat the conclusion–based on the totality of the circumstances–that there was
probable cause to believe that the phone Arenas removed from his pocket which
was seized by Detective Fain contained evidence of criminal activity. Similarly,
-11- Arenas’s closely related argument that it was not immediately apparent that the
phone seized by Detective Fain was incriminating fails because Detective Fain
possessed probable cause that the phone Arenas had on his person contained
evidence of criminal activity.
Finally, Arenas offers a two-sentence argument, which contains no
citations to authority or the record, that Detective Fain should not have met with
Arenas personally without first discussing the matter with Arenas’s counsel. The
entirety of Arenas’s fatally fleeting argument is: “Det. Fain was aware that Daniel
was represented by an attorney and therefore all requests should have gone through
the attorney. Det. Fain should not have even [gone] to question Daniel about
having a phone.” Appellant raises the same basic argument, again tersely and with
no citation to authority, in his reply brief.
Arenas’s conclusory argument, devoid of citation to supporting
authority, is wholly insufficient to merit appellate relief. See, e.g., Harris v.
Commonwealth, 384 S.W.3d 117, 131 (Ky. 2012); Koester v. Koester, 569 S.W.3d
412, 414 (Ky.App. 2019). Even if we examined the matter on the merits, we
would not conclude that the fact that an attorney left some sort of message on
Detective Fain’s phone (the exact contents of which Arenas has not shown by, for
example, calling the attorney as a witness or at least providing an affidavit from the
attorney detailing the nature of the message left for Detective Fain) completely
-12- insulated Arenas from being contacted at all by Detective Fain. Perhaps, arguably,
Detective Fain should have explored the matter with Arenas’s counsel before going
to Arenas’s residence, but Arenas has not cited any authority which required such
a pre-seizure consultation. Detective Fain’s lack of consultation with Arenas’s
attorney does not change the fact that there was probable cause to believe Arenas’s
phone contained evidence of criminality which could have easily been destroyed.
Having determined that probable cause existed for the seizure, we
now address Detective Fain’s roughly two-week post-seizure delay in seeking a
search warrant. Again, Arenas’s argument is fatally underdeveloped and belated.
The matter is not addressed in his opening brief, Arenas does not cite to where he
raised the “impermissible delay” argument before the trial court, and his reply brief
only tersely asserts that “Det. Fain did not apply for a search warrant for over two
weeks because he had some other cases he was working on as well” so “this court
should find that no effort was made to obtain a warrant within a reasonable amount
of time and suppress the evidence.”
We agree with the standard stated by another panel of our Court in
Iredale v. Commonwealth, No. 2016-CA-001513-MR, 2018 WL 6721334, at *3
(Ky.App. Dec. 21, 2018) (unpublished), which involved the warrantless seizure of
a cell phone “that a [post-seizure] search warrant should be obtained within a
reasonable period of time[.]” In determining that a two-month post-seizure delay
-13- in seeking a search warrant was not so unreasonable as to invalidate the seizure
under the particular facts of that case, it relied on and quoted extensively from
United States v. Burgard, 675 F.3d 1029, 1032-34 (7th Cir. 2012), which focused
on the importance of the infringement on the person’s possessory interest, the
brevity of the seizure, the strength of the state’s basis for seizing the item, whether
there was reasonable suspicion or probable cause for the seizure, and the diligence
with which the police acted.
The question is not whether Detective Fain ideally should have sought
a search warrant sooner. We agree that given their ubiquitous status and
importance, the deprivation of cell phones should be, ideally, minimized to the
greatest extent possible. See, e.g., United States v. Wilkins, No. CR-19-390 (RC),
2021 WL 1894990, at *24 (D.D.C. 2021) (“[a]n individual’s property interest in
their own cell phone can generally be assumed to be significant.”). Instead, we
must determine whether Detective Fain’s delay was so unreasonable as to destroy
the validity of an otherwise permissible seizure. “There is unfortunately no bright
line past which a delay becomes unreasonable.” Burgard, 675 F.3d at 1033.
However, “[a]ll else being equal, the Fourth Amendment will tolerate greater
delays after probable-cause seizures[,]” which is the situation here. Id.
We begin by acknowledging that Detective Fain did not offer a
compelling reason for the delay in seeking a warrant (sickness, serious injury, etc.).
-14- Most police officers do not have the luxury of having been assigned only one case
at a time, so having other cases to attend to, by itself, is not inherently sufficient to
always excuse all delays in seeking a warrant. The warrant application was short
and thus should not have taken a great deal of time to complete. But we cannot
conclude that, by itself, the roughly two-week delay here was unreasonable given
the strength of the Commonwealth’s basis for seizing the phone as many courts
across the United States have found lengthier delays in obtaining a
warrant to not be unreasonable.6 The twenty-one-day delay in obtaining a warrant
to search a seized computer found unreasonable in Mitchell, which Arenas cites,
was roughly a week longer than the one at hand and decided upon the specific facts
in that case. Arenas has failed to cite to any cases containing a similar length of
delay in obtaining a search warrant to what occurred for his phone, which was held
to be unreasonable or to explain under the particular facts of his case why this
6 We do not intend the following list to be exhaustive and acknowledge that each case has its own unique, potentially distinguishable facts and arguments. Nonetheless, the following opinions are examples of courts concluding that delays in seeking a warrant longer than the roughly two-week delay here were not unreasonable: United States v. Vallimont, 378 F. App’x 972, 975-76 (11th Cir. 2010) (forty-five-day delay); United States v. Brantley, No. 1:17-CR-77- WSD, 2017 WL 5988833, at *3 (N.D. Ga. Dec. 4, 2017) (unpublished) (sixteen-day-delay deemed “relatively short” and not unreasonable); United States v. Todd, No. CR 416-305, 2017 WL 1197849, at *12 (S.D. Ga. Feb. 10, 2017) (unpublished) (twenty-eight-day delay); United States v. Blanchard, No. CV 19-CR-10298-RWZ-1, 2021 WL 2458200, at *4 (D. Mass. Jun. 16, 2021) (unpublished) (four-month delay “longer than was necessary” but “not unreasonable.”); United States v. Howe, 545 F. App’x 64, 65-66 (2d Cir. 2013) (thirteen-month delay); United States v. Camp, No. 5:11-CR-155-BO, 2012 WL 148690, at *2 (E.D.N.C. Jan. 18, 2012) (unpublished) (nineteen-day-delay); United States v. Lowe, No. CRIM.A. H-10-813-2, 2011 WL 1831593, at *2-3 (S.D. Tex. May 12, 2011) (unpublished) (twenty-one-day delay).
-15- delay was intolerable here. On these facts, we cannot conclude the two-week delay
here was unreasonable (though we, of course, are not issuing a per se ruling that a
fourteen-day-delay is always reasonable).
We now turn to determining whether Arenas was entitled to a directed
verdict.7 Under familiar Kentucky precedent:
The legal standards for a directed verdict motion are clear: “[i]f under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal.” Trowel v. Commonwealth, 550 S.W.2d 530, 533 (Ky. 1977). “The trial court must draw all fair and reasonable inferences from the evidence in favor of the party opposing the motion, and a directed verdict should not be given unless the evidence is insufficient to sustain a conviction. The evidence presented must be accepted as true. The credibility and the weight to be given the testimony are questions for the jury exclusively.” Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983). The standard for appellate review is equally clear: “[o]n appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
Eversole v. Commonwealth, 600 S.W.3d 209, 217-18 (Ky. 2020).
Arenas was found guilty of five counts of possessing or viewing
matters portraying sexual performances by minors. The statute governing that
7 Arenas filed a motion in limine during trial to argue the charges should be dismissed but his argument here is focused on the denial of his motion for directed verdict.
-16- offense, Kentucky Revised Statutes (KRS) 531.335, provides in relevant part as
follows:
(1) A person is guilty of possession or viewing 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:
(a) Knowingly has in his or her possession or control any matter which visually depicts an actual sexual performance by a minor person; or
(b) Intentionally views any matter which visually depicts an actual sexual performance by a minor person.
(2) The provisions of subsection (1)(b) of this section:
(a) Shall only apply to the deliberate, purposeful, and voluntary viewing of matter depicting sexual conduct by a minor person and not to the accidental or inadvertent viewing of such matter[.]
The Commonwealth proceeded under the theory that Arenas viewed,
not possessed, matters portraying sexual performances by minors. The dispute
here is whether the jury could properly convict Arenas based on him viewing the
depiction of “an actual sexual performance by a minor” on each of the five
websites.
In fact, there was no proof as to exactly what Arenas viewed when he
visited the five websites underlying the five relevant counts of the indictment.
Arenas’s argument is that he cannot be found guilty of viewing child pornography
-17- without the Commonwealth presenting proof of what he specifically viewed; he
asserts that it was mere suspicion or conjecture that there was child pornography
on those websites when he viewed them. The Commonwealth argues that a
reasonable juror could infer that Arenas viewed child pornography from the totality
of the evidence.
In most cases involving similar charges, the defendant downloaded
child pornography to his or her electronic device, or the authorities discovered the
pornography in the trash or cache of the defendant’s electronic device. But there is
no indication that any child pornography was found on Arenas’s phone, so those
cases are materially distinguishable. Indeed, the parties have not cited, nor have
we independently located, any opinions from Kentucky or elsewhere addressing
this same argument under similar facts.
To be properly found guilty, the evidence had to support a conclusion
beyond a reasonable doubt that Arenas intentionally viewed matters portraying
minors engaging in a sexual performance. Arenas stresses that no evidence
showed what he actually viewed on the websites in question. We agree that there
was no such direct evidence. But we disagree that Arenas was entitled to a
directed verdict because, viewing the evidence in the light most favorable to the
Commonwealth and drawing all reasonable inferences in its favor, there was
-18- sufficient evidence for a reasonable juror to infer that Arenas viewed child
pornography.
Our Supreme Court rejected a similar argument in Crabtree v.
Commonwealth, 455 S.W.3d 390 (Ky. 2014). In Crabtree, the Court considered
“whether there is evidence to support a finding that Crabtree was aware of the
nature of the material in the [partially downloaded video] files [of child
pornography] on his computer” where there was “no proof that Crabtree watched
the videos that serve[d] as the bases of the charges for which he was convicted[.]”
Id. at 398. The Court held that circumstantial evidence, including Crabtree’s
admission that he had watched a child pornography video (though that was not
among the videos underlying his criminal charges), was sufficient to deny the
directed verdict motion. Id. at 398-402. In reaching this conclusion, the Court
noted that the file names “were obviously indicative of child pornography” and
that “[n]o person with an understanding of English would have seen these video
titles and believed they contained anything other than child pornography.” Id. at
402.
The same can be said regarding the internet searches and the titles of
the websites which Arenas decided to visit. While Crabtree was about possession,
in each situation the defendant acted knowingly, Crabtree by downloading videos
whose titles were indicative of child pornography and Arenas by conducting
-19- internet searches with terms associated with child pornography and then clicking
on websites whose titles were indicative of child pornography and explained what
was to be found within. This is a far different situation than the one in which
someone may click on an ambiguously titled website sent by email or click on
what turns out to be a problematic website that comes up in response to an
innocuous search on a browser. The circumstantial evidence could properly
support a reasonable inference that for each count for which Arenas was convicted,
he deliberately viewed photographs depicting an actual sexual performance by a
minor person because the primary focus of those websites was child pornography.
Specifically, the relevant evidence from which the inferences may be
drawn is uncontested. Arenas performed internet searches with terms designed to
find child pornography. Arenas visited websites whose titles and URLs were
synonymous with child pornography. Arenas’s explicit search terms and the titles
of websites he clicked on showed that he actively, voluntarily and intentionally
sought to view child pornography. Arenas’s counsel also admitted Arenas sought
child pornography.
Arenas’s girlfriend testified that when she clicked on the links on
Arenas’s phone on the same evening that Arenas was viewing such websites, she
found child pornography. She testified she saw prepubescent females clothed in
lingerie, some of whose genitals were visible. Detective Fain testified he viewed
-20- child pornography when he subsequently clicked on those same links as listed in
Arenas’s internet search history at a later date and the jury was presented with
printouts which showed the content Detective Fain found.
Additionally, the jury received screenshots of the text exchanges
between Arenas and his girlfriend. When Arenas’s girlfriend explicitly accused
him of looking at child pornography, Arenas did not remain silent. Instead, he
explained that he knew what he did was wrong and disgusting. The clear
implication was that by failing to deny her accusation which was not open to any
ambiguity, he acknowledged it as true. Pursuant to Kentucky Rules of Evidence
(KRE) 801A(b)(2), by failing to deny the accusation that he viewed child
pornography and instead trying to excuse his actions, Arenas (through an adopted
admission) admitted to viewing child pornography. See Ragland v.
Commonwealth, 476 S.W.3d 236, 250-52 (Ky. 2015).
The only remaining question is whether, given the format of multiple
images of child pornography on each initial page of the websites Arenas had
previously visited, a reasonable juror thus could infer that while the content on the
those initial pages may have changed over time, each initial page of these websites
contained at least one visual depiction of “an actual sexual performance by a minor
person” when they were visited by Arenas. We believe based on the totality of the
-21- evidence that the jury could reasonably infer that Arenas indeed found such
material on those five websites.
“When all else is said and done, common sense must not be a stranger
in the house of the law.” Cantrell v. Kentucky Unemployment Ins. Commission,
450 S.W.2d 235, 237 (Ky. 1970). Common sense here permitted, but of course did
not require, the jury to infer that the websites contained exactly what Arenas hoped
they did when he searched for them and visited them, given that afterwards he
admitted to viewing child pornography. He did not have to specifically admit that
he saw child pornography on each of the five websites he visited (and where child
pornography was later found) for the jury to convict him on these counts.
For the foregoing reasons, we affirm the judgment of the Kenton
Circuit Court finding Daniel Arenas guilty of five counts of possession or viewing
of matter portraying a sexual performance by a minor.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Roy Alyette Durham II Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
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