RENDERED: OCTOBER 28, 2021 TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0663-DG
MICHAEL FIELDS APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2017-CA-1980 SCOTT CIRCUIT COURT NO. 10-CR-00190
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
An investigation by the Office of the Attorney General cybercrimes unit
led investigators to discover child pornography files on Michael Fields’s desktop
computer and external hard drive. After a jury trial he was convicted of four
counts of possession of matter portraying a sexual performance by a minor,
Kentucky Revised Statute (KRS) 531.335, and sentenced to ten years in prison
by the Scott Circuit Court. On appeal, the Court of Appeals found no error and
affirmed. Fields contends that the trial court improperly disqualified his sole
expert witness, erred by denying his motion for directed verdict, and
impermissibly admitted various photos and reports as evidence. On
discretionary review, this Court concludes that the trial court committed no
reversible error and thus affirms the judgment. FACTS AND PROCEDURAL HISTORY
Fields used Limewire, a now-defunct file-sharing program, to download
and share music, videos and images. His goal was to acquire over 10,000
songs. In downloading files, Fields also amassed several thousand clips of
adult pornography. According to Fields, if another Limewire user had music he
liked, he would download every file in the other user’s library—Fields did not
preview or search through the entire library prior to downloading. Instead,
Fields used the “select all” command to highlight all the user’s files and hit the
download button, downloading hundreds of files at a time. Fields intended to
sort and catalogue the files later—retaining the files he wanted and deleting the
others—but he was downloading so many files it became difficult to keep up.
Fields steadfastly maintains that he had no idea child pornography was
amongst the thousands of files he downloaded from Limewire. He was aware of
the adult pornography, some of which he viewed with his wife.
In January 2010 Investigator Tom Bell of the cybercrimes branch of the
Attorney General’s office investigated online computers that were advertising,
via peer-to-peer networks, that they had files available for sharing that
matched known signatures of child pornography. Bell identified an IP address
advertising approximately 156 files with these known child pornography
signatures.1 The IP address, which belonged to Fields, was using the file-
1 As explained in United States v. Dodd, 598 F.3d 449, 451-53 (8th Cir. 2010), even if a user admits to knowing receipt and possession of illegal materials, he may have no knowledge that his computer was equipped to distribute said materials. But the precise function of a file sharing program, like Limewire, is to share, in other words, to distribute. Id. The Commonwealth and Investigator Bell never suggested 2 sharing software Limewire. Bell executed a search warrant at Fields’s home in
March 2010, seizing a laptop from the living room, a desktop computer from
the bedroom, an external hard drive and numerous CDs and DVDs. An initial
forensic examination of Fields’s computers and external hard drive tagged 126
images and 41 videos as suspected child pornography. On September 3, 2010
a Scott County grand jury indicted Fields on 105 counts of possession of
matter portraying a sexual performance by a minor. Given how long the case
had been pending, prior to the 2017 trial Bell conducted a supplemental
examination of Fields’s computers and external hard drive and concluded that
the devices contained 48 images and 7 videos of child pornography.2 He
explained that his supplemental review revealed that some of the images and
videos did not meet the child pornography criteria, citing reasons such as the
questionability of the subject’s age, the subject being clothed, or the absence
sexual activity. The indictment was later amended on May 5, 2017 to ten
counts, two counts related to videos and eight counts related to images.
Fields was originally represented by private counsel. In 2014 private
counsel obtained an order from the Scott Circuit Court allowing a computer
expert to conduct an independent forensic examination of Fields’s two
that Fields attempted or actually distributed child pornography, only that the files were made available through the underlying functions of a peer-to-peer file sharing program. 2 The trial court record shows numerous continuations of the trial due to various reasons, including scheduling conflicts, medical issues of attorneys involved in the case, Fields’s medical issues, and Fields’s private counsel’s withdrawal from the case in 2016.
3 computers. Over a year passed, and private counsel withdrew, citing
differences with Fields as to trial strategy and communication. The
Department of Public Advocacy was subsequently appointed to represent
Fields. One month before trial, the trial court granted defense counsel’s motion
for funding to hire a computer expert for Fields. This expert was a different
expert than the one hired by private counsel; it is unclear whether private
counsel’s expert ever examined Fields’s computers.
At trial the Commonwealth’s sole witness was Investigator Bell. Bell
explained how peer-to-peer file sharing programs like Limewire work, namely
that users make files available to other users. Bell noted that the files forming
the basis for the indictment had titles containing child pornography buzzwords,
like “Lolita,” “kiddie,” “pthc,”3 “pedo,” and others. He also acknowledged that
titles for non-pornography files sometimes included these terms. Bell testified
that he conducted a forensic review of Fields’s computers,4 but found no
evidence that Fields performed searches using child pornography terms.
Instead, the data obtained from Fields’s computer was consistent with bulk
downloading. Because the evidence did not show that Fields was specifically
3 Bell indicated that this acronym stands for “preteen hard core.” 4 Fields had a laptop and a desktop computer. The files that formed the basis for the indictment were found on the desktop computer or an external hard drive that was connected to the desktop computer. Fields’s wife testified that the desktop computer was located in their bedroom. She knew Fields used Limewire to download adult pornography and testified that they watched it together. She estimated that over 100 adult pornography videos were downloaded to the desktop computer and external hard drive. However, she denied any knowledge of child pornography. Although two computers were examined, child pornography was discovered on only the desktop computer and for the sake of clarity we refer to a single computer throughout this opinion.
4 seeking out child pornography on Limewire, the Commonwealth’s case hinged
on whether Fields knew that his large collection of downloads contained child
pornography. The testimony established that file titles are often misleading
and inaccurate, so to “know” that he had child pornography, Fields would have
had to preview or open the files on his desktop computer.5
The Commonwealth introduced Exhibits 1-10, which were either images
or videos of suspected child pornography that corresponded with Counts 1-10
of the indictment. The Commonwealth introduced each image by having Bell
read the file name before briefly displaying the image or video to the jury.
Investigator Bell’s evidence on Fields’s file viewing was primarily
circumstantial. He testified that Fields used Real Player, Windows Media
Player, and other video and image viewing programs to open files with
provocative names, some of which included child pornography buzzwords.
But, on cross-examination, Bell admitted that none of the provocatively named
files viewed with those programs were necessarily child pornography.6
5 Limewire had a preview function, but Bell admitted that he found no evidence that Fields used it to preview any of the files included in the indictment. 6 Bell’s report explained that these recently viewed images and videos were not present at the time the computer and hard drive were seized, but the data indicated that the files had been present on the computer or hard drive at some earlier point in time. Bell also stated that the files were “mostly empty files, so there’s nothing you can view.” He did not provide an extensive explanation as to why Fields’s recently viewed files could not be viewed during his examination or why they were no longer present on the computer or hard drive, but stated that the file names were highly suggestive of child pornography despite being inaccessible. On cross-examination, Bell acknowledged that the files included in the lists of recently viewed files, Commonwealth’s Exhibits 11-14, were no longer on the computer and therefore were separate and apart from the 48 images and 7 videos that Bell found on Fields’s computer and hard drive during the forensic examination.
5 In a final effort to prove that Fields knew he had child pornography, on
the second day of trial, Bell provided the Commonwealth with a new exhibit
extracting highly technical information from his previously provided report. As
to the images that formed the basis for Counts 2, 4, 6 and 9, Bell testified that
Fields’s computer history reflected that those files had been opened. In
support of that assertion, Bell noted that Fields’s File Explorer history logged
those four files with the prefix “file:///C:.” The File Explorer in Windows
allows a user to view the information on their computer in a hierarchical
structure of drives, folders and files. If the preview pane feature of File
Explorer is enabled a user can quickly preview a file, such as a photo, without
opening it by single clicking on the file’s name or icon.7 Bell testified that the
three-forward-slash prefix meant that the files had been “opened.”
On cross-examination, Bell backtracked slightly, acknowledging that he
could not prove that Fields “opened” the four files in the traditional sense –
none of the files were opened in the video or image viewing programs, such as
Windows Media Player and Photo Viewer, that the computer would use by
default to open image or video files. Instead, Bell posited that the three-
forward-slash prefix meant that Fields viewed the child pornography files with
File Explorer’s preview pane. Fields attempted to refute this theory with
information from Bell’s report showing that Fields’s computer history logged a
three-forward-slash prefix for multiple items in relatively quick succession –
7 Georgetown University, Working with the File Explorer in Windows 10,
https://uis.georgetown.edu/file-explorer/. (Last visited Sept. 29, 2021).
6 ten seconds, twenty seconds, etc. But Bell adamantly insisted that the three-
forward-slash prefix proved that Fields personally interacted with the files,
giving him knowledge of their contents.
In an effort to counter Bell’s testimony, Fields attempted to present his
own computer forensics expert, Matthew Considine from Cyber Agents, Inc.
While testifying about his qualifications, Considine admitted that he had not
previously performed a forensic evaluation of a computer involving Limewire
during his professional career. However, Considine testified that he had a
four-year degree in digital forensics and had two class sessions about Limewire
during his education. He also testified that he had personal experience using
the program “as a child.” Based on Considine’s lack of professional experience
involving Limewire, the trial court sustained the Commonwealth’s objection to
him testifying as an expert and excluded his testimony. Fields subsequently
presented Considine’s testimony by avowal, testimony which focused on
Limewire and the discrepancy between file titles and their actual contents.
Considine also discussed how users can search for files and that irrelevant
results often appear while searching. Importantly, Fields’s counsel failed to
ask Considine anything about Bell’s report, the three-forward-slash prefix’s
meaning in Windows, or how the File Explorer in Windows functions.
Based on the above-described testimony, the jury convicted Fields of
knowingly possessing the four child pornography files that Bell testified were
logged with the three forward slashes and therefore “viewed” by Fields. After
the verdict, Fields hired private counsel who represented him in post-trial
7 proceedings and at sentencing. The trial court sentenced Fields to two and
one-half years on each count, to run consecutively, for a total sentence of ten
years in prison.
ANALYSIS
Fields presents four arguments: the trial court (1) improperly denied a
directed verdict; (2) erred in excluding Matthew Considine as an expert witness;
(3) improperly admitted various exhibits, and (4) improperly admitted the ten
images and videos that formed the basis of the ten-count indictment.
I. The trial court properly denied Fields’s motion for directed verdict.
Fields argues the trial court erred in denying his motion for directed
verdict, asserting that his “knowing possession” of the child pornography files
was wholly unsupported.8 Possession of matter portraying a sexual
performance by a minor is defined by KRS 531.335(1):
On appeal to the Court of Appeals, the Commonwealth stated that it was 8
unclear from the record whether the directed verdict issue was properly preserved. While the Commonwealth does not make that argument to this Court, we note the Court of Appeals’ discussion regarding preservation: The record before us does not contain Fields’s initial motion for directed verdict. The video recording in the record cuts off at the close of the Commonwealth’s case. At that time, the court dismissed the jury and informed the parties that the court was taking a break “so you [Fields] can go ahead and make your motion.” The recording of the proceedings resumes with the defense calling its first witness, Donna Fields. However, at the close of all evidence, Fields stated to the trial court that he was renewing his motion for directed verdict and argues that no fact finder could determine the “knowingly” element required by KRS 531.335 based on the sheer number of files that Fields had downloaded. Therefore, we treat the issue as preserved for appeal. A motion for a directed verdict made at the close of the Commonwealth’s case is not sufficient to preserve error unless renewed at the close of all the evidence.
8 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.
Fields was indicted under subsection (a), which criminalizes the possession of
such material, not the viewing of the material. “Sexual performance” means
sexual conduct by a minor, which includes “[t]he exposure, in an obscene
manner, of the unclothed . . . female genitals, pubic area or buttocks, or the
female breast . . . .” KRS 531.300. The images that formed the basis for
Counts 2, 4, 6 and 9 undoubtedly meet these statutory requirements.
A trial court’s ruling on a motion for directed verdict is reviewed under
the following standard:
On a motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purposes of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony. On 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.
Fields v. Commonwealth, No. 2017-CA-001980-MR, 2019 WL 3851636, *1, *3 n.11 (Ky. App. August 16, 2019) (citing Kimbrough v. Commonwealth, 550 S.W.2d 525, 529 (Ky. 1977)).
9 Hunter v. Commonwealth, 587 S.W.3d 298, 310 (Ky. 2019) (quoting
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991)). Based on the
testimony presented at trial, it was not clearly unreasonable for the jury to find
Fields guilty.
In Crabtree v. Commonwealth, 455 S.W.3d 390, 394 (Ky. 2014), the
defendant was convicted of sixty-seven counts of possession of matter
portraying a sexual performance by a minor, KRS 531.335, for partially
downloaded pornography videos and images found on his computer. This
Court discussed the necessary evidence in cases involving KRS 531.335:
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.
Id. at 396. We explained that “[t]he crime requires only the knowing possessing
of child pornography, regardless of the purpose. The mens rea requirements of
KRS 531.335 are satisfied by showing that the defendant knew the videos were
child pornography and that he knowingly possessed them.” Id. at 402. Thus
in the case before us the issue is whether sufficient proof was offered that
Fields knew the four images for which he was convicted were child
pornography and that he knowingly possessed them.
We first consider whether there was sufficient proof that Fields had
knowledge of the content of the four photos. As noted, the Commonwealth’s
proof was presented through Bell’s expert testimony. Bell explained how peer-
10 to-peer file-sharing programs, like Limewire, work, namely that users make
files available to other users. Bell noted that the files that were the basis for
Fields’s indictment had lewd titles, containing child pornography buzzwords
like “Lolita,” “kiddie,” “pthc,” “pedo,” and others. However, Bell admitted that
titles for non-child-pornography files sometimes include these terms.
Bell testified that he conducted a forensic review of Fields’s computer,
but found no evidence that Fields performed searches using child pornography
terms. Instead, the data obtained from Fields’s computer was consistent with
bulk downloading. Under KRS 531.335, the Commonwealth’s case rested in
part on whether Fields knew that his large collection of Limewire downloads
contained child pornography. Because file titles are often misleading and
inaccurate, to “know” that he had child pornography, Fields would have had to
open or preview the files on his desktop computer.
Bell’s evidence on Fields’s file viewing was largely circumstantial. He
primarily relied on the three-forward-slash theory to posit that Fields viewed
the four files he was ultimately convicted of possessing. On the second day of
trial Bell provided the Commonwealth with a new exhibit extracting highly
technical information from his previously provided report. As to the images
that formed the basis for Counts 2, 4, 6 and 9, Bell testified that Fields’s
computer reflected that those files had been opened. While he backtracked
slightly on cross-examination by noting that he could not prove that Fields
“opened” the files in a traditional sense because they were not opened in photo
11 or video applications or programs, he still rested on the three-forward-slash
theory to support his assertion that Fields viewed the files in some way.
Attempting to refute Bell’s theory about the files being viewed, Fields
highlighted additional information from Bell’s report showing that many other
presumably non-offending files were “opened” within just a minute of each
other. Bell acknowledged that many files were opened in a short amount of
time. This is consistent with Fields’s testimony that if any child pornography
was on his computer, it was not “knowingly” because it was part of a bulk
download of other material. Nevertheless, Bell insisted that the three-forward-
slash prefix proved that Fields personally interacted with the child pornography
files, giving him knowledge of their contents.
Fields testified at trial and maintained that the images and videos
underlying the indictment were downloaded through Limewire unbeknownst to
him. He testified that he used Limewire to obtain music and adult
pornography. He stated that if he saw that another Limewire user had music
that he liked, he would simply download every file that the user had available,
including adult pornography. Fields denied having any knowledge that child
pornography was also downloaded with the music and adult pornography. He
stated that he “didn’t really pay attention” to file names and that he “didn’t see
anything that alarmed” him. He asserts that he was unaware of the presence
of child pornography on his computer. Despite initially arguing in a pretrial
hearing that the images were merely “erotica” or did not depict individuals
12 under the age of eighteen, Fields no longer contests that the files underlying
the indictment constitute child pornography.
Fields contrasts his case to Crabtree, arguing that he did not
purposefully download files that he knew contained child pornography and the
record reflects nothing else proving that he had knowledge of the contents of
the files. He testified that he did not read the individual file titles because he
downloaded items in bulk. We agree that, in this respect, Fields’s case is
distinguishable from Crabtree. In Crabtree the Court determined that the
defendant at least had constructive knowledge of the content of the child
pornography videos because he had to have seen the file names while
individually downloading files. 455 S.W.3d at 398. Expert testimony in that
case established that a Limewire user would see provocative file names before
individually downloading files, and once “download” was selected the software
would ask whether the user wanted to download the named file and, to do so,
he would have to select “yes.” Id. Crabtree knew how to download files on
Limewire and he knowingly downloaded individual files he knew contained
child pornography. Id. at 401.9
Notably, the Crabtree Court held that “direct proof of knowledge is not
necessary. ‘Proof of actual knowledge can be by circumstantial evidence.’” Id.
at 399 (quoting Love v. Commonwealth, 55 S.W.3d 816, 825 (Ky. 2001)). The
9 In addition, Crabtree admitted to police that he viewed one of the child pornography videos although, interestingly, he was acquitted of the charge related to that particular video. Id. at 398.
13 Court held that the trial court properly relied on circumstantial evidence in
denying a directed verdict. Id. at 400-01. That evidence was Crabtree’s
admission that he viewed one of the child pornography videos, along with the
direct evidence of the file names, which were reliable indicators of the content
of the other downloads Crabtree made from Limewire. Id. at 400.
Fields maintains that he downloaded files from Limewire in bulk and that
he never saw the individual file names. Unlike Crabtree, the Commonwealth
did not present evidence that Fields had downloaded individual files. However,
as Bell highlighted, the file names in the indictment were riddled with child
pornography buzzwords. The file names also included language such as
“young,” “sex,” “underage,” “porn,” and “intercourse,” which were indicative of
their content even to those unfamiliar with child pornography buzzwords.
These file names were viewable by Fields, even if among numerous other file
names.
Additionally, Fields moved the four files at issue to the recycle bin. Bell
testified that the four files were moved to the recycle bin approximately one
month after initially downloaded. One of the files was placed on the external
hard drive which the detectives found plugged into Fields’s desktop
computer.10 This is further evidence tending to show Fields’s knowing
possession of child pornography. Bell also presented reports that suggested
that Fields recently viewed other files with lewd names and child pornography
10 Fields testified that he did not intentionally place any files on the external
hard drive.
14 buzzwords, although Bell could not specifically attest that those files actually
contained child pornography. While this evidence is largely circumstantial,
knowledge can be shown through circumstantial evidence. Crabtree, 455
S.W.3d at 399.
Most detrimental to Fields’s defense, and therefore the evidence that best
supported the trial court’s denial of the motion for directed verdict, was Bell’s
testimony that the pornographic images underlying Counts 2, 4, 6, and 9 of the
indictment were opened and viewed. The Commonwealth presented numerous
reports created by Bell, one of which was a report from the File Explorer history
on Fields’s computer that showed that the four images related to Counts 2, 4, 6
and 9 contained the three-forward-slash prefix, which according to Bell meant
the files were viewed. Significantly, Fields neither cross-examined Bell to
undermine this testimony nor did he offer a witness with an alterative
explanation for the three-forward-slash prefix on the files.
“Circumstantial evidence has its limits. The proof must do more than
point the finger of suspicion. Moreover, ‘a conviction obtained by
circumstantial evidence cannot be sustained if the evidence is as consistent
with innocence as with guilt.’” Id. at 408 (internal quotations and citations
omitted). The Commonwealth presented direct proof, through Bell’s testimony,
of when the images were downloaded, when they were moved to the recycle bin
or hard drive, and when the files were opened or otherwise accessed. We
recognize Fields’s argument that some of Bell’s testimony is not unassailable,
i.e., other explanations may exist, but Fields did not properly counter that
15 testimony during cross-examination, nor did he present a witness that could
contradict the information and explanations Bell provided.
Additionally, when weighing Bell’s testimony and Fields’s defense, a juror
could doubt Fields’s credibility in asserting that he never saw the file names,
never saved the one image to an external hard drive, and never interacted with
the four files. Further, a reasonable juror could infer that Fields saw the file
names in the approximately one month’s time that they were on his computer
prior to being moved to the recycle bin or specifically saved to the external hard
drive.
The issue on directed verdict was whether sufficient evidence was
presented for a reasonable juror to determine that Fields knowingly possessed
child pornography. The trial court was required to view the evidence in the
light most favorable to the Commonwealth. Because there was direct evidence
that the four files had been viewed (in addition to circumstantial evidence
described above), the jury had sufficient evidence to infer that Fields knew that
the child pornography files were on his computer and that he knew what the
files contained. The Commonwealth met its burden and Fields was not entitled
to a directed verdict under our controlling standard. Benham, 816 S.W.2d at
187.
II. The trial court did not abuse its discretion in disqualifying Matthew Considine as an expert witness but Considine’s testimony would have had no impact on the verdict even if the jury heard it.
Fields argues that the trial court erroneously excluded the testimony of
his expert witness, Matthew Considine, thereby improperly denying him the 16 opportunity to present a defense. Considine testified for approximately six
minutes before the Commonwealth objected to his qualifications as an expert.
At that time, the trial court excused the jury and allowed the parties to
question Considine regarding his qualifications.
The questioning focused on Limewire. Considine had not used Limewire
in his professional capacity but testified that he had experience using the
program “as a child” in 2007 or 2008. He added that any other direct
experience with Limewire was “not for cases, but for [his] own education.”
Considine had no specific education courses on peer-to-peer networking but
testified that he had one or two class sessions in college that dealt with
Limewire. He also testified that he considered his co-worker, Trent Strutman,
an expert regarding Limewire. He stated that Strutman was available on-the-
job to answer any questions Considine had and that he had previously
consulted with Strutman regarding peer-to-peer networks.
Considine testified that he had conducted an examination on a computer
previously that had Limewire installed on it, but then contradicted that by
saying that the only computer with Limewire that he had ever examined was
“the computer in this case.” While Considine may have possessed relevant
experience and qualifications in general forensic computer investigations,
nothing suggested he qualified as an expert in Limewire or peer-to-peer sharing
networks.
Based on Considine’s lack of professional experience with Limewire, the
trial court concluded that he did not qualify as an expert but allowed his
17 testimony by avowal for the purposes of appeal. That testimony, discussed
below, was confined to Limewire. The Court of Appeals affirmed the exclusion
of Considine as an expert, agreeing that he lacked expertise with respect to the
use of Limewire. Stated succinctly, the Court of Appeals concluded that
Considine had only two years of professional experience, no certifications, no
specialized training, and his direct experience with Limewire was primarily
informal and during childhood.
Expert testimony is admissible if it meets the requirements of Kentucky
Rule of Evidence (KRE) 702, which states
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case.
The standard by which a trial court should assess the reliability of expert
testimony was set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993). Under the Daubert standard, the trial court must make a
preliminary determination “whether the expert is proposing to testify to (1)
scientific knowledge that (2) will assist the trier of fact to understand or
determine a fact in issue.” Id. at 592. The trial court thus serves as
gatekeeper to prevent the admission of pseudoscientific, unreliable evidence.
Garrett v. Commonwealth, 534 S.W.3d 217, 221 (Ky. 2017). The topics of
18 Considine’s proposed testimony were scientific in nature and had the potential
of assisting the jury in understanding Limewire and peer-to-peer networks.
However, Considine, despite his degree, did not qualify as an expert on these
particular topics.
KRE 702 requires that a witness is “qualified as an expert by knowledge,
skill, experience, training, or education.” Further, “[t]he decision to qualify a
witness as an expert rests in the sound discretion of the trial court.” Kemper v.
Gordon, 272 S.W.3d 146, 154 (Ky. 2008) (citing Owensboro Mercy Health Sys.
v. Payne, 24 S.W.3d 675, 677 (Ky. App. 1999)). A trial court’s determination of
whether a witness is qualified as an expert is reviewed for abuse of discretion.
Smith v. Commonwealth, 454 S.W.3d 283, 285-86 (Ky. 2015) (citing Brown v.
Commonwealth, 416 S.W.3d 302, 309 (Ky. 2013)). “The test for abuse of
discretion is whether the trial judge's decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
The gist of Fields’s defense was that he unknowingly downloaded some
files containing child pornography in a bulk download through Limewire, a
peer-to-peer network, and then unknowingly transferred those files to his
computer. Considine had minimal experience with Limewire and no
professional experience with the program prior to this trial. While he
possessed some knowledge of Limewire and how the software allows users to
share and download files, his knowledge was sparse and his proposed
testimony incorrectly focused on conducting searches in Limewire, which was
19 essentially irrelevant given the Commonwealth’s theory and Fields’s defense.
He also stated that the only computer with Limewire he ever examined was
Fields’s computer. As noted, Considine’s training and education on Limewire
was limited to two college class sessions on the software and he had not had
formal training regarding Limewire or even peer-to-peer sharing generally.
Overall, he lacked the requirements to be deemed an expert in Limewire under
KRE 702. Given his lack of knowledge and experience, we cannot say the trial
court abused its discretion in declining to qualify Considine as an expert
witness on that topic.
Fields cites a series of federal products-liability cases which hold that
expert testimony was improperly excluded where the proposed witness is an
expert in the subject area but lacks specialized knowledge of the particular
product at issue.11 Fields analogizes those cases to the trial court’s finding
that Considine lacked sufficient experience with Limewire, a particular
computer software. He argues that the trial court should have instead focused
its analysis on Considine’s general training and experience and specialized
knowledge in computer forensics. However, Considine lacked any recognized
qualifications in computer forensics generally. He had no certifications,
although he was in the process of obtaining certification in Encase, the
computer forensics software used by Bell. Further, he only had two years of
11 See, e.g., CNA Ins. Co. v. Hyundai Merch. Marine, Co., 2011 WL 5181464, *1,
*2 (W.D. Ky. Oct. 31, 2011); Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996).
20 professional experience in computer forensics generally and had never offered
an expert opinion at trial although he had “consulted” for trials.
Even if we were to agree with Fields that any “underqualification” on
Considine’s part should have gone to the weight of his testimony rather than
constituting grounds for excluding that testimony altogether, the result in this
case would have been no different. Considine’s proposed testimony focused on
Limewire, bulk downloads from the program, how Limewire searches were
conducted, the discrepancy between file titles and their contents and other
Limewire-centric issues. Simply put, this testimony would not have
established anything that conflicted with the Commonwealth’s version of what
had occurred. The real point of contention was whether Fields had viewed,
interacted with the pornographic images and that was not a Limewire issue,
but rather the significance of the three-forward-slash reflected in the
computer’s history as to the four images for which he was convicted.
Defense counsel failed to elicit any experience Considine may have had
with Windows computers or the File Explorer generally, which is the type of
expertise that could have successfully countered Bell’s testimony regarding
Fields viewing or opening the four files at issue. In order to counter Bell’s
testimony regarding the File Explorer and Windows, Fields needed an expert in
Windows, not Limewire because it was incumbent for his defense to offer proof
that he did not view the files, even in the preview pane of File Explorer.
Considine’s education in computer forensics and efforts to become certified in
Encase likely meant that he possessed some knowledge regarding Bell’s reports
21 and testimony but this information was never presented to the trial court. This
omission is likely due to the fact that the proposed defense testimony was
focused on a different subject—the workings of Limewire as opposed to the
truly relevant issue of whether Fields had viewed the four images.
Thus, even if the trial court’s refusal to allow Considine to testify as an
expert witness was error, it was harmless. Considine’s avowal testimony
contained no information that would have successfully countered Bell’s
testimony regarding the three-forward-slash prefix and File Explorer testimony
used to establish that Fields viewed the four files. Despite having Bell’s reports
and having heard his trial testimony, Fields’s counsel did not ask Considine
anything about Bell’s report or the three-forward-slash prefix meaning in
Windows or whether previewing a file in File Explorer could constitute viewing
the file for purposes of KRS 531.335. Considine might have had the relevant
knowledge to refute Bell’s theory, but neither Considine nor defense counsel
were adequately prepared to discuss that aspect of Bell’s report.12
As a result of the trial court’s exclusion of Considine as an expert
witness, Fields argues that his right to present a defense was impermissibly
infringed. He insists the jury was not permitted to hear evidence central to his
claim of innocence because Considine’s testimony was fundamental to counter
12 In his concurrence, Judge Acree noted that Fields’s counsel had more than enough time to secure an expert whose credentials were no longer in the developmental stage. The Department of Public Advocacy sought expert funds, but it was so close to trial that it likely lessened the possibility of obtaining an expert who was both fully qualified and prepared for trial.
22 Bell’s testimony, a somewhat curious position since, as discussed, Considine’s
testimony never addressed the Commonwealth’s proof that Fields had viewed
the images at issue. This Court has held that the rules of evidence cannot be
applied “so as to completely bar all avenues for presenting a viable defense,”
but they can be used “so as to properly channel the avenues available for
presenting a defense.” Mills v. Commonwealth, 996 S.W.2d 473, 489 (Ky. 1999)
(overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky.
2010)). The trial court did not deny Fields the opportunity to present a
defense, it merely excluded the testimony of one particular witness after
determining that he was not qualified to render an expert opinion on the topic
he planned to address.
III. The trial court properly admitted Commonwealth’s Exhibits 11- 14 and 18 regarding Fields’s computer activity.
Next Fields argues that the trial court improperly admitted certain
exhibits offered by the Commonwealth. During its case-in-chief, the
Commonwealth introduced Exhibits 1 through 10, which were the files
underlying each count of the indictment. Exhibits 11 through 14 were taken
from the registry examined on Fields’s computer as follows:
Exhibit 11 – “Recent Docs – JPG”
Exhibit 12 – “Recent Docs – MPG”
Exhibit 13 – “Real Player Most Recent Clips”
Exhibit 14 – “Microsoft Media Player Recent File List”
These exhibits were part of Bell’s forensic analysis of Fields’s computer.
Bell testified that they were lists of the most recent files opened in their native 23 programs, i.e., Media Player or Real Player. Bell did not find the specific files
listed in the exhibits during his investigation, nor could he definitively state
that they contained child pornography. However, he testified that these files
were “concerning” because the titles contained similar buzzwords to known
child pornography files. Bell had previously testified about some of the
buzzwords and their meaning. Exhibit 18 was a list of the four files Bell
testified had been viewed, which he indicated to the Commonwealth were
pulled from his overall report. At trial, Fields objected to the introduction of
Exhibits 11-14 because none of the file names in these Exhibits were part of
the indictment. Additionally, Fields argued that the Commonwealth could not
prove that any of the files listed in the exhibits actually contained child
pornography. Over Fields’s objection, the trial court admitted the exhibits into
evidence.
The Court of Appeals affirmed the admission, pointing to Fields’s
insistence that he downloaded files from Limewire in bulk and therefore never
saw the file names or viewed files that would have alerted him to the presence
of child pornography on his computer. According to the Court of Appeals,
Exhibits 11-14 refute that assertion. The Exhibits were not admitted to show
that the files contained child pornography, but rather to show that, based on
the file names, one would expect these files to contain child pornography. A
reasonable juror could infer that Fields saw the file names prior to opening
them in the associated program, thus discrediting his testimony that he had
never seen and had never been alerted to file names indicative of child
24 pornography on his computer. Exhibit 18 was admitted to show four files
referenced in the indictment had actually been downloaded, opened and viewed
on Fields’s computer. Although Fields may have obtained the files in a bulk
download, these four files were in fact opened and viewed individually.
Accordingly, the Court of Appeals concluded that the trial court did not abuse
its discretion in admitting the exhibits.
Evidentiary rulings are reviewed for an abuse of discretion. English, 993
S.W.2d at 945. KRE 403 states
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
All evidence is subject to the balancing test of KRE 403:
There are three basic inquiries that the trial court must undertake when determining admissibility of relevant evidence under Rule 403. First, the trial court must assess the probative worth of the proffered evidence; second, it must assess the risk of harmful consequences (i.e., undue prejudice) of the evidence if admitted; and last, it must evaluate whether the probative value is substantially outweighed by the harmful consequences.
Hall v. Commonwealth, 468 S.W.3d 814, 823 (Ky. 2015) (citations omitted).
Fields asserts that, absent support in the record that he, in fact, opened
and viewed the files contained in Commonwealth’s Exhibits 11-14 and 18,
those exhibits were completely irrelevant and served no purpose other than to
inflame and unduly prejudice the jury. The Commonwealth argues that the
exhibits were properly admitted because they were relevant to rebut Fields’s
defense of unknowing possession of child pornography. We agree.
25 Although the file names in Exhibits 11-14 were not the same file names
as the files listed in Counts 2, 4, 6, and 9 of the indictment, the files had
similar names which were indicative of child pornography, both through
buzzwords and the plain meaning of the language in the titles. It is immaterial
whether the files actually contained child pornography because the
Commonwealth’s purpose in admitting the exhibits was to show that similar
files were opened by someone using the computer, most likely Fields. Likewise,
Exhibit 18 constituted proof that someone (Fields) viewed four of the ten files in
the indictment, rendering the exhibit highly relevant to the charged crime. It
was admissible because it was extracted from Bell’s forensics report generated
after examining Fields’s desktop computer and it contained the file names of
four files that formed the basis of the indictment. The Commonwealth, through
Bell, introduced the names of all ten files in the indictment and displayed those
images and videos in the court room. Hearing the four specific file names
contained in Exhibit 18 once more could not have inflamed the jury any further
than actually seeing the images and videos.
Fields also contends that the Court of Appeals’ reasoning is based on
unsupported factual conclusions regarding his interaction with the subject
files, but the Commonwealth presented evidence that Fields accessed four of
the files, those listed in Exhibit 18. As for the lists in Exhibits 11-14 they were
directly related to countering Fields’s assertions that he had never seen and
never been alerted to file names indicative of child pornography on his
computer, regardless of whether the files actually contained child pornography.
26 Contrary to Fields’s argument, it is immaterial whether he searched for
the files listed in Exhibits 11-14 and 18, or whether he searched for child
pornography on Limewire at all, because the Commonwealth offered proof that
Fields opened, previewed, or in some way accessed the four files in the
indictment for which he was ultimately convicted. Fields offered no proof to
rebut the assertion that these files were opened, other than highlighting that
the files were apparently “viewed” within seconds of many other innocuous
files.
Fields now argues that Exhibit 18 states nothing about the files being
opened or viewed, it only states when the files were “last visited.” Bell
acknowledged that the “last visited” timestamp sometimes can be updated
upon the running of various default programs, such as malware, virus scans,
or any number of programs that run by default. But Exhibit 18 accompanied
Bell’s testimony that the four files were in fact opened given the three-forward-
slash prefix. Fields asserts that it was critical for the jury to view “last visited”
data for all records in the database, but he was able to elicit “last visited”
information from Bell during cross-examination and had Bell acknowledge that
the four images in Exhibit 18 were opened within seconds of many other files
that did not contain child pornography.
Exhibits 11-14 and 18 were admissible as evidence because they were
relevant to rebut Fields’s defense of unknowing possession of child
pornography. Exhibits 11-14 were relevant to show that files with
pornography-suggestive names were opened on Fields’s computer, even if those
27 particular files could not be determined to contain child pornography. Exhibit
18 reflected the four files for which Fields was convicted. In sum, the trial
court did not abuse its discretion in admitting these exhibits as evidence.
IV. The trial court properly admitted the images and videos that formed the basis for the indictment.
Fields’s final assertion of error is based on the trial court’s admission,
over his objection, of the ten images and videos underlying each count in the
indictment. On appeal to the Court of Appeals, the Commonwealth argued
that the claim was not properly preserved for review. The Court of Appeals
agreed and declined to review the claim on the merits. Acknowledging that
preservation was a close call, the Court of Appeals determined that Fields’s
objections to the images were based solely on whether the images rose to the
level of child pornography under KRS 531.335, not whether the photos were
admissible under KRE 403. Additionally, Fields did not request palpable error
review pursuant to Rule of Criminal Procedure 10.26. Fields argues that the
claim was properly preserved, and the Court of Appeals should have remanded
to the trial court for specific findings of fact.
On April 7, 2017 the Commonwealth indicated that it would submit the
ten images that it intended to display at trial for an in camera review by the
trial court. Fields did not raise an objection at that time. The trial court
conducted a review and determined that the images could be shown to the
jury. At a pretrial hearing on May 8, 2017 the parties discussed the
admissibility of the ten images and videos supporting each count in the
indictment. However, there were two separate arguments regarding 28 admissibility. First, the Commonwealth moved to introduce, under KRE
404(b), other suspected images of child pornography found on Fields’s
computer that were not charged in the indictment. Fields’s counsel argued
that the introduction of the images would be prejudicial but agreed to discuss
that issue at a separate time.
The second issue discussed at the hearing was Fields’s objection to the
introduction of the ten images and videos based on whether they constituted
“child pornography” under KRS 531.335. Fields’s counsel challenged whether
the images and videos were admissible at all because he argued they
constituted “erotica” and not child pornography. Fields also stated it was too
difficult to determine if the individuals contained in the images and videos were
under the age of 18 and asked that the images be excluded. The
Commonwealth noted that the trial court had already conducted an in camera
review of the ten items in the indictment. In response to the objection, the trial
court simply stated “I can’t as a matter of law rule that it is not [child
pornography.]”
We note that during this pretrial hearing all parties and the trial court
expressed confusion as to exactly what motions the Commonwealth and Fields
made and what the trial court was being asked to rule upon. The motions
appeared to be whether the ten images depicted (1) sexual performances (2) by
minors, as required by KRS 531.335. Ultimately, the Commonwealth showed
the videos and images contained in the indictment to the jury and Fields did
not raise an objection to the presentation of the images and videos at trial.
29 We agree that whether Fields’s argument was properly preserved for
appeal is a close call, but regardless of preservation we find no error in the
admission of the images and videos.
Fields argues that the trial court should have issued specific findings
under KRE 403 and Hall, 468 S.W.3d at 824, as to whether the probative value
of the display of child pornography was outweighed by undue prejudice. Hall
involved the excessive display of crime scene and autopsy photographs in a
murder case. It did not involve a determination of an ultimate issue in the
case, i.e., whether the images constituted an element of the crime. In this case,
because of the offense charged, the jury had to determine whether the
Commonwealth proved that Fields knowingly possessed the child pornography
files and that he had knowledge of what those files contained. KRS 531.335(1)
requires a finding that Fields possessed “matter portraying a sexual
performance by a minor.” So, it follows that the Commonwealth had to prove
that the images and videos portrayed a sexual performance by minors. Fields,
at one point, disputed whether the images and videos displayed sexual
performances and whether the individuals in the images and videos were
minors. Therefore, the jury was tasked with answering those factual
questions.13 The fact that this evidence, which may inflame the jury, would be
introduced in this case “follows from the nature of the crime and does not
13 The jury instructions included the definitions of “sexual performance” and “sexual conduct by a minor” to aid the jury in determining whether the images and videos satisfied the requirements of KRS 531.335.
30 make the evidence inadmissible.” Little v. Commonwealth, 272 S.W.3d 180,
188 (Ky. 2008).
Relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of undue prejudice . . . .” KRE 403. Probative
photos are admissible “unless they are so inflammatory that their probative
value is substantially outweighed by their prejudicial effect.” Adkins v.
Commonwealth, 96 S.W.3d 779, 794 (Ky. 2003). The probative value of the
images in this case cannot be denied. “The ‘probative value’ or ‘probative
worth’ of evidence is a measure of how much the evidence tends to make the
fact it is introduced to prove more or less probable.” Hall, 468 S.W.3d at 823.
Here, the images constitute physical evidence of the crime itself, and while
undoubtedly prejudicial, this was not “undue prejudice,” KRE 403, and the
prejudice did not outweigh their probative value. Because the images were
relevant and highly probative of the child pornography charges, they were
properly admitted into evidence and presented to the jury at trial.
CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals opinion
upholding the judgment and sentence of the Scott Circuit Court.
All sitting. All concur.
31 COUNSEL FOR APPELLANT:
Michael Jay O’Hara David Bryan Sloan Jessica Nadine Wimsatt O’Hara, Taylor, Sloan & Cassidy
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Mark Daniel Barry Assistant Attorney General