Kelley v. Commonwealth

• Court: Supreme Court of Virginia
• Decided: April 16, 2015
• Docket: 140837
• Status: Published

Opinion

PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, and Powell, JJ., and Koontz, S.J.

DAVID KELLEY OPINION BY v. Record No. 140837 JUSTICE ELIZABETH A. McCLANAHAN April 16, 2015 COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

A jury convicted David Kelley of two counts of

distributing child pornography in violation of Code § 18.2-

374.1:1. Kelley contends the evidence was insufficient to

prove distribution because the peer-to-peer software1 he used to

access and download child pornography automatically placed the

child pornography files into a shared folder accessible to

other users of the software. We will affirm the judgment of

the Court of Appeals upholding the convictions.

I. BACKGROUND

Special Agent Chad Morris is employed by the Virginia

State Police and assigned to the Northern Virginia/D.C./Metro

Area Internet Crimes Against Children (ICAC) Task Force. In

connection with his work on the ICAC Task Force, Morris

utilizes Ares, a peer-to-peer file-sharing program, to identify

1 "Peer-to-peer file-sharing software enables a communal network which exist[s] – as the name 'file-sharing' suggests – for users to share, swap, barter, or trade files between one another." United States v. Wheelock, 772 F.3d 825, 832 n.4 (8th Cir. 2014)(internal quotation marks and citation omitted). the Internet Protocol (IP) addresses of computers with files

believed to contain child pornography available to share.

As explained by Morris in his testimony given in this

case, Ares is free software that, once installed on a computer,

allows the exchange of files through the Internet.2 Upon

initiating Ares, the user enters search terms to identify files

of other peer-to-peer users online that meet the search

criteria. Ares then displays a list of files available from

other computers, and the user may select specific files to

download. As the files are downloaded, they are placed into a

shared folder generally designated on the user's computer

directory as "My Shared Files." This folder is accessible to

other peer-to-peer users unless the settings are changed by the

user to preclude access. According to Morris,

the whole basic concept of peer-to-peer, is you borrow or download files from other folks and you now possess those, but also share it with the rest of the community, otherwise you're not really much use to your other peers. So you use peer-to-peer software to download files from other users and share files with those same common users.

On April 25, 2012, in the course of using Ares to

investigate distribution of child pornography on the Internet

2 See Ares Free, What is Ares? http://www.aresfree.net/what-is-ares (last visited March 20, 2015). 2 by persons in the Harrisonburg area, Morris identified an IP

address with 38 files believed to contain child pornography

available to share on the Ares network. Upon sending a request

to the identified computer to share two of these files, Morris

was permitted to download both files, which were confirmed by

him to contain child pornography. The IP address was

subsequently traced to Kelley's home.

On May 18, 2012, at approximately 6:15 a.m., members of

the ICAC Task Force and the Harrisonburg Police Department

executed a search warrant upon Kelley's home. Investigator

Greg Miller, accompanied by another investigator, both with the

Harrisonburg Police Department, spoke to Kelley in his bedroom.

Kelley acknowledged he was familiar with file-sharing software

and Ares in particular. Kelley told Miller he uses Ares "for

music," explained "how it worked," and said the files he stored

were "on a shared folder located on his desktop."

When Miller informed Kelley that child pornography was

found on his computer, Kelley said he was in the process of

downloading child pornography onto his laptop when they arrived

and initially claimed that "[j]ust now when you all knocked on

the door was the first time I've downloaded anything in the

folder," adding that they would find the videos in his shared

folder. Kelley directed Miller to his laptop computer, which

3 was found in his bedroom closet, in a backpack underneath some

clothing.

Kelley ultimately admitted he had used Ares on previous

occasions to download child pornography. When asked about the

specific date on which Special Agent Morris accessed the two

videos from Kelley's computer, Kelley responded, "You would

know." When Miller asked Kelley how long he had been "dealing

child pornography," Kelley said "maybe four years." Kelley

repeatedly told Miller that he did not share the files but

downloaded them and "just deleted [the files] out of the share

folder."

At trial, Kelley called Daniel Reefe to testify as an

expert in computer forensics. Reefe confirmed that Ares

creates the "My Shared Files" folder as a default option upon

installation of the program. Therefore, when using Ares, files

selected will automatically download into the shared folder

unless the user chooses to place the files elsewhere to prevent

sharing by other users.

Kelley was convicted by the jury of two counts of

distribution of child pornography and ten counts of possession

of child pornography in violation of Code § 18.2-374.1:1.3 The

3 Investigator Christopher O'Neill, a computer forensics expert with the Harrisonburg Police Department, performed a preliminary examination on Kelley's laptop computer. O'Neill 4 Court of Appeals, by a per curiam order, denied Kelley's

petition for appeal.

II. ANALYSIS

On appeal, Kelley argues that the evidence was

insufficient "to prove distribution of child pornography based

upon the presence and automatic actions of a peer-to-peer

program on Kelley's computer."

When the sufficiency of evidence is challenged on appeal,

we review the evidence in the "light most favorable" to the

Commonwealth, as the party prevailing at trial. Commonwealth

v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This

principle requires us to "discard the evidence of the accused

in conflict with that of the Commonwealth, and regard as true

all the credible evidence favorable to the Commonwealth and all

fair inferences to be drawn therefrom." Parks v. Commonwealth,

221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis,

internal quotation marks and citation omitted). We will not

found ten files containing child pornography in the shared folder on Kelley's laptop. Special Agent Hugh Thatcher, Jr., a member of the Electronic Crimes Task Force of the United States Secret Service, performed a full forensic examination on Kelley's laptop computer and confirmed O'Neill's findings. These ten files formed the basis of indictments against Kelley on ten charges of possession of child pornography. Kelley's convictions on these charges are not before us on appeal.

5 set aside the trial court's judgment unless it is "plainly

wrong or without evidence to support it." Code § 8.01-680;

Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28

(2005).

Kelley was convicted of two counts of distribution of

child pornography in violation of Code § 18.2-374.1:1(C)(i).

This statute provides, in pertinent part, that any person who

"reproduces by any means, including by computer, sells, gives

away, distributes, [or] electronically transmits" child

pornography shall be guilty of violating said statute.

The evidence is undisputed that Kelley downloaded the Ares

software onto his laptop and used Ares to search for and

download the child pornography files that were accessed by

Morris from Kelley's shared folder. As Morris explained, the

whole purpose of Ares is to facilitate sharing of files among

the network of users.

By downloading Ares, which is a peer-to-peer file-sharing software, it's inherent that . . . peer-to-peer users know that they're sharing files amongst their peers. And by having those in a shared folder available for me to view and not changing the settings or having the settings so that [Kelley] would download or make available to share those [Kelley] essentially allowed me [access].

Thus, in downloading the child pornography files into his

shared folder, Kelley made the files available for sharing with

Morris.

6 Kelley could have prevented other Ares users, including

Morris, from downloading those files from Kelley's computer,

but he did not do so. According to Morris,

I searched like any other user would, identified that he had those [files] to share and downloaded those. Some folks, which was not the case here, can actually stop and interrupt that download. They often times do that. In this particular case I was able to download two complete files without interruption or without [Kelley] stopping that or prohibiting that share.

We reject Kelley's contention that the evidence was

insufficient to prove distribution because the files were

shared "without any volition on the part of Kelley." Kelley

chose to download the Ares software onto his laptop computer by

which he voluntarily participated in peer-to-peer file-sharing

of child pornography. Whether Kelley's shared folder

containing the child pornography was created as a default

option by the software or by Kelley himself, the child

pornography files were, in fact, downloaded by Kelley into his

shared folder and, thereby, made available to other users of

Ares.

Although Kelley could have changed the settings on his

laptop to preclude sharing of his downloaded files or prevented

Morris from downloading the files from Kelley's shared folder,

he chose not to do so. Kelley was familiar with the operation

of the software, having used it before to download music, and

7 he even explained to Miller "how it worked." Therefore,

reasonable jurors could conclude that Kelley, by his own

volition, shared the child pornography files with Morris.

Accordingly, the evidence was sufficient for the jury to find

that Kelley reproduced by any means, including by computer,

sold, gave away, electronically transmitted or distributed

III. CONCLUSION

For the foregoing reasons, we will affirm the judgment of

the Court of Appeals.

Affirmed.