State of Iowa v. Roger Osborn

• Court: Court of Appeals of Iowa
• Decided: October 10, 2018
• Docket: 16-1066
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-1066 Filed October 10, 2018

STATE OF IOWA, Plaintiff-Appellee,

vs.

ROGER OSBORN, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse,

Judge.

The defendant challenges his convictions for possession of a visual

depiction of a minor engaging in a prohibited sexual act. AFFIRMED.

Philip B. Mears of Mears Law Office, Iowa City, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.

Heard by Danilson, C.J., McDonald, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2018). 2

MCDONALD, Judge.

Roger Osborn was convicted of twenty-six counts of possession of a visual

depiction of a minor engaging in a prohibited sexual act, in violation of Iowa Code

section 728.12(3) (2014). The district court ordered Osborn to serve an

indeterminate term of incarceration not to exceed six years. In this appeal, Osborn

challenges his convictions and sentences. In his first claim of error, he argues the

district court erred in denying his motion to suppress his interview with police

allegedly obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). At issue

is whether the defendant was “in custody” within the meaning of the Miranda

doctrine and whether the police were thus required to administer the Miranda

advisories prior to interviewing him. In his second claim of error, Osborn

challenges the sufficiency of the evidence supporting his convictions. In his third

claim of error, he contends the district court abused its discretion in imposing

sentence.

I.

In late 2014, Bryan Martin of the Missouri Cyber Crime Task Force and

Internet Crimes Against Children Task Force conducted a search for unlawful

content on a peer-to-peer file sharing network, ARES. Martin found six files

containing visual depictions of a minor engaging in a prohibited sexual act on a

computer in the network. The computer was associated with an IP (Internet

Protocol) address linked to a house in Burlington. The house belonged to Carla

Osborn, the defendant’s mother. Martin alerted the Burlington Police Department

to the potential child-exploitation offenses. 3

The Burlington Police Department obtained a search warrant for the house.

The search warrant authorized the seizure of computers, media storage devices,

and anything else that could obtain prohibited depictions. Detective Moret of the

Burlington Police Department and five other law enforcement personnel executed

the search warrant at the house. The officers were in plain clothes. They arrived

at the Osborn residence at approximately ten o’clock in the morning and knocked

on the front door. Robert Osborn (“Robert”), the defendant’s father, answered the

front door. One or two of the officers entered the front room while the remainder

stayed outside, primarly for security reasons and because of the lack of space in

the small home. At the time the officers entered the residence, Osborn was asleep.

One of the officers asked Robert to wake Osborn, and Robert did so. Osborn

came into the front room and spoke with the officers. Moret explained to the

Osborns that the police were executing a search warrant to obtain items related to

the possession of “child pornography.”1 She explained she wanted to interview

them at the police station.

The parties dispute the exact language Moret used regarding the interview.

At the suppression hearing, Detective Moret testified she asked Osborn if he was

“willing” to come to the police station for the interview. Moret testified it was her

standard practice to use this phrase. She testified Osborn did not have to agree

to an interview but he did have to leave the residence while the police executed

1 The witnesses used the term “child pornography.” The parties use this term on appeal. Unless quoting from the record, this opinion uses the statutory terms regarding visual depictions of a minor engaging in a probibited sexual act. See Iowa Code § 728.12(3). Use of the statutory terms is more precise and avoids any connotation that the children voluntarily participated in the creation of the visual depictions. See Ateret Gewirtz-Meydan et al., The Complex Experience of Child Pornography Survivors, 80 Child Abuse & Neglect, 238, 238 n.1 (2018). 4

the search warrant. Moret testified it was necessary to use the police station for

the interviews because Osborn’s house was too small to separate Robert and

Osborn for individualized interviews. She testified the Osborns stated they were

willing to be interviewed at the police station. In contrast, at the suppression

hearing, Osborn testified Moret did not ask him to come to the police station for an

interview but rather told him he had to come to the police station for an interview.

Robert was more evasive than Osborn when pressed on the issue during the

suppression hearing, but he ultimately conceded Moret may have used the word

“willing” when speaking with them.

While some of the officers remained at the house to execute the search

warrant, Moret drove the Osborns in her unmarked car, a regular sedan, to the

police station for an interview. The Osborns sat in the back of the car. They were

not handcuffed. The parties do not dispute Moret drove the Osborns to the police

station, but they do dispute the circumstances under which Moret drove the

Osborns to the police station. The Osborns testified they wanted to drive Robert’s

van to the station. Robert testified, “I said I can drive us down there, and [Moret]

said, no, we will take you down in the police car.” Osborn testified Moret did not

give him the choice to drive. In contrast, Moret testified Robert did not want to

drive to the police station because he was feeling ill. According to Moret, Robert

requested she drive them to the station. Moret testified, “I told them that I would

be more than willing to bring them to the police department and back to the house

or anywhere else he wanted to go at that point.”

Moret interviewed Osborn in a small room on the second floor of the

Burlington police station while another officer interviewed Robert. The second floor 5

was a secured floor. Moret had to use her keycard to enter and exit the floor.

Moret discussed this directly with Osborn, stating, “It is a secure floor, you saw me

have to use my key, so I’d have to walk you out, but whenever we’re done, we’re

done. Remember that, at any time.” Throughout the course of the interview, the

interview room was unlocked. Osborn had the freedom to leave the room at any

time. At one point during the interview, Moret left the room for a few minutes, and

Osborn walked out of the interview room to use the restroom. He returned to the

interview room on his own.

At the beginning of the interview, Moret repeatedly told Osborn he had the

right to terminate the interview and leave. Moret began the interview by explaining:

You definitely have a choice as to whether or not you want to talk to me, ok? I do have some questions for you. If you don’t want to answer any of them, or some of them, you just let me know.

In response, Osborn started to discuss his history of downloading adult

pornography. Moret stopped Osborn and explained:

Before we get into any of that, though, I just, I want to make sure you understand . . . you do not have to talk to me. If at any time during this interview you decide you don’t want to talk to me anymore, you let me know and we’re out of here.

Osborn confirmed that he understood he could terminate the interview at any time.

At that point, Moret commenced with the substance of the interview.

The interview was investigatory in nature. Moret conducted the interview

alone. She was dressed in plain clothes and unarmed. The video recording of the

interview shows Moret sat in front of a desk diagonally from Osborn, who sat

adjacent to the desk. Osborn had an unobstructed path to the door. Moret was

calm and asked, primarily, open-ended questions. At one point during the 6

interview, Osborn had a coughing spell. Moret left Osborn alone in the interview

room for several minutes. The video shows Osborn vomited into a trash can in her

absence. When Moret returned to the room, Osborn told Moret he was nervous.

He did not request to discontinue the interview. In total, the interview lasted

approximately one and one-half hours. During the interview, Osborn confessed to

viewing “child pornography” multiple times on his computer.

At the conclusion of the interview, Osborn was not arrested. Instead,

officers drove him and his father back to their residence. From there, the Osborns

drove themselves to the hospital to seek medical attention because they were not

feeling well.

While Moret interviewed Osborn, the remaining officers completed their

search of the Osborns’ residence. During the search of the home, the officers

seized a computer located in Osborn’s bedroom. Detective Schmitz of the Cedar

Rapids Police Department created a bit-for-bit forensic image of the two hard

drives contained in the computer. Schmitz conducted a forensic analysis of the

hard drives and found twenty-eight video and image files depicting a minor

engaging in a prohibited sexual act. In addition, search history information showed

the computer’s user searched for files with the search term “PTHC,” which is

commonly understood by persons who create, disseminate, and seek depictions

of minors engaging in prohibited sexual acts to mean “preteen hard core.”

The State charged Osborn with twenty-eight counts of possession of a

visual depiction of a minor engaging in a prohibited sexual act or simulation of a

prohibited sexual act, in violation of Iowa Code section 728.12(3). Before trial,

Osborn moved to suppress his interview with Moret on the ground the interview 7

was obtained in violation of his Miranda rights. The district court found Moret more

credible on the disputed issues and denied the motion on the ground Osborn was

not in custody within the meaning of Miranda doctrine. The matter was tried to the

bench. The State voluntarily dismissed two counts due to uncertainty regarding

the ages of the persons depicted. The district court found Osborn guilty of the

remaining twenty-six counts and sentenced Osborn to an indeterminate term of

incarceration not to exceed six years.

II.

In his first claim of error, Osborn contends the district court erred in denying

his motion to suppress the police interview allegedly obtained in violation of

Osborn’s Miranda rights.

A.

The Fifth Amendment provides that no person “shall be compelled in any

criminal case to be a witness against himself.” U.S. Const. amend. V. The

traditional understanding of the Fifth Amendment only required the government to

establish the voluntariness of a confession before it could be admitted into

evidence against a criminally accused. Miranda, however, “changed the focus of

much of the inquiry.” Dickerson v. United States, 530 U.S. 428, 434 (2000). The

Miranda Court “concluded that the coercion inherent in custodial interrogation blurs

the line between voluntary and involuntary statements, and thus heightens the risk

that an individual will not be ‘accorded his privilege under the Fifth Amendment . . .

not to be compelled to incriminate himself.’” Id. at 435 (quoting Miranda, 384 U.S.

at 439). Because of this concern, the Miranda Court constructed a prophylactic

rule that “established that the admissibility in evidence of any statement given 8

during custodial interrogation of a suspect would depend on whether the police

provided the suspect with” certain warnings or advisories. See id. “[T]he person

must be warned that he has a right to remain silent, that any statement he does

make may be used as evidence against him, and that he has a right to the

presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444.

Not every confession obtained absent the Miranda warnings is

inadmissible. “[P]olice officers are not required to administer Miranda warnings to

everyone whom they question.” Oregon v. Mathiason, 429 U.S. 492, 495 (1977).

“Miranda warnings are required only where there has been such a restriction on a

person’s freedom as to render him ‘in custody.’ It was that sort of coercive

environment to which Miranda by its terms was made applicable, and to which it is

limited.” Id. If a defendant is not in custody, “Miranda inquiry is not triggered.”

State v. Davis, 446 N.W.2d 785, 788 (Iowa 1989).

“[A] suspect is in custody upon formal arrest or under any other

circumstances where the suspect is deprived of his or her freedom of action in any

significant way.” State v. Ortiz, 766 N.W.2d 244, 251 (Iowa 2009). In determining

whether a suspect is “in custody,” we do not look to the suspect’s subjective

perception of the relevant events. See State v. Bogan, 774 N.W.2d 676, 680 (Iowa

2009). Instead, the test is an objective one: whether a reasonable person in the

suspect’s place would believe he is in custody. See Ortiz, 766 N.W.2d at 251.

To guide our analysis, our case law has identified four non-exclusive factors

that bear on the issue of whether a suspect is in custody: “1) the language used

to summon the individual; (2) the purpose, place, and manner of interrogation; (3)

the extent to which the defendant is confronted with evidence of her guilt; and (4) 9

whether the defendant is free to leave the place of questioning.” State v.

Countryman, 572 N.W.2d 553, 558 (Iowa 1997); accord State v. Tyler, 867 N.W.2d

136, 172 (Iowa 2015); State v. Miranda, 672 N.W.2d 753, 759 (Iowa 2003).

B.

We review constitutional issues, including Miranda violations, de novo. See

State v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016); State v. Jackson, 878 N.W.2d

422, 428 (Iowa 2016); Countryman, 572 N.W.2d at 557. Whether a suspect was

in police custody for Miranda purposes is a mixed question of law and fact.

Thompson v. Keohane, 516 U.S. 99, 112–13 (1995). We consider the totality of

the circumstances, taking into account the entire record. See Schlitter, 881

N.W.2d at 388. However, we grant weight “to the trial court’s findings of fact . . .

because that court had an opportunity to assess the credibility of the witnesses.”

State v. Morgan, 559 N.W.2d 603, 608 (Iowa 1997).

C.

In applying the facts of this case to the controlling standards, we first

consider the facts and circumstances of how Osborn was summoned to the police

interview, including the specific language used. See Schlitter, 881 N.W.2d at 396.

Here, the officers arrived at Osborn’s residence in plain clothes. Cf. State v. Smith,

546 N.W.2d 916, 924 (Iowa 1996) (finding the fact that officers “were dressed

casually in civilian clothes” supported a determination that the suspects were not

in custody). Moret asked Osborn if he was “willing” to be interviewed at the police

station, and Osborn stated he was. This demonstrates Osborn agreed to be

interviewed at the police station and was not compelled to do so. See State v.

Cavins, No. 10–0880, 2011 WL 1136625, at *3 (Iowa Ct. App. Mar. 30, 2011) (“The 10

language used to summon the defendant was not forceful, threatening or coercive.

The defendant was merely asked if he would accompany the police officer to the

police station and the defendant voluntarily agreed.”). Moret drove the Osborns to

the station in an unmarked car, and the Osborns were not handcuffed. See Tyler,

867 N.W.2d at 172 (concluding that defendant was not in custody despite the fact

that officers transported her to the police department for an interview); State v.

Cam, No. 10-0953, 2011 WL 1136456, at *5 (Iowa Ct. App. Mar. 30, 2011) (finding

the fact that defendant was not handcuffed supported a conclusion that he was not

in custody); State v. Davis, No. 08-1942, 2009 WL 4116322, at *5 (Iowa Ct. App.

2009) (concluding defendant was not in custody when he “was not handcuffed or

subject to any physical restraint.”). Critically, Robert requested Moret transport

him and Osborn to the station because he did not want to drive. When considered

as a whole, the facts and circumstances giving rise to the interview, including the

language used to initiate the interview, demonstrate Osborn’s freedom was not

restrained in any significant way.

The purpose, place, and manner of the interview also militate against

concluding Osborn was in custody. “In examining the purpose, place, and manner

of an interrogation, we examine factors including the number of persons

conducting the questioning, the number of breaks taken during the questioning,

the availability of restroom breaks or other breaks, and the type of questioning in

which those conducting the interview engage.” Tyler, 867 N.W.2d at 172–73. The

interview room was unlocked. See Cam, 2011 WL 1136456, at *5 (concluding

defendant was not in custody when he “was never placed in a locked room”).

Moret left Osborn alone in the room on several occasions. Osborn left the interview 11

room unaccompanied on at least one occasion. Moret conducted the interview

alone. See State v. DeGroot, No. 16-0643, 2017 WL 5178985, at *3 (Iowa Ct. App.

Nov. 8, 2017) (finding the fact that defendant was only interviewed by one officer

supported a conclusion that the defendant was not in custody). She was unarmed

at the time. See State v. Walker, No. 12-10742013, 2013 WL 2145989, at *1 (Iowa

Ct. App. May 15, 2013) (finding that the fact that the interviewing officer did not

have a weapon displayed supported the conclusion the the defendant was not in

custody). Her demeanor was relaxed and calm. See State v. Hull, No. 12-2165,

2014 WL 69750, at *2 (Iowa Ct. App. Jan. 9, 2014) (concluding that the defendant

was not in custody when “[t]he questioning was casual”); Walker, 2013 WL

2145989, at *1 (concluding that defendant was not in custody when the tone of the

interview was “conversational”). Moret’s questions were open-ended. See Cavins,

2011 WL 1136625, at *3 (concluding the defendant was not in custody when “[t]he

questioning was open ended”). Most important, Moret repeatedly and clearly

informed Osborn he had a choice to participate in the interview and could terminate

the interview at any time. See United States v. Griffin, 922 F.2d 1343, 1349 (8th

Cir. 1990) (“The most obvious and effective means of demonstrating that a suspect

has not been ‘taken into custody or otherwise deprived of . . . freedom of action,’

Miranda, 384 U.S. at 444 [ ], is for the police to inform the suspect that an arrest is

not being made and that the suspect may terminate the interview at will. Where a

suspect has been so advised, custody has frequently been found to not exist.”

(internal citation omitted); see, e.g., Hull, 2014 WL 69750, at *2 (concluding

defendant was not in custody when interviewing officer told him, “[A]t any point in

time you’re free to walk out that door”) (alteration in original); Walker, 2013 WL 12

2145989, at *1 (finding that a defendant was not in custody when an officer told

him, “[Y]ou’re free to leave, you’re not under arrest”); State v. Vasquez, No. 10-

0085, 2011 WL 2089778, *3 (Iowa Ct. App. May 25, 2011) (concluding that

defendant was not in custody when he was informed that “he was free to leave”).

The fact Osborn had an upset stomach during the interview does not turn a non-

custodial interview into a custodial interview. For example, in State v. Tyler, the

court found the defendant was not in custody during an interview conducted the

day after she gave birth and while she was in medical distress. Tyler, 867 N.W.2d

at 174.

The third Countryman factor also shows Osborn was not in custody within

the meaning of our caselaw. Here, the police did not confront Osborn with

evidence of his guilt. Moret explained an investigation had traced “child porn”

images to a computer associated with the IP address associated with Osborn’s

residence. She further explained, “Anything you’ve done, on that computer, is

going to be laid out crystal clear to anybody who wants to look at it.” However, the

the interview was investigatory and not accusatory. Moret posed open-ended

questions to Osborn to learn more information. See Smith, 546 N.W.2d at 925

(distinguishing questions that confront defendants with evidence of their guilt with

questions that “urge the defendants to provide more information”). This was

necessary because, at the time of the interview, the police did not possess

evidence of Osborn’s guilt. At the time of the interview, law enforcement had not

yet forensically imaged or anlalyzed Osborn’s computer. In addition, the police

had not yet determined whether the culpable party was Robert, Osborn, or other

persons with access to the computer. Further, Moret did not presume that Osborn 13

was guilty. She told Osborn, “Until it’s proven different, I’m going to believe what

you say.” Cf. State v. Itoh, No. 09-0811, 2010 WL 1578527, at *3 (Iowa Ct. App.

Apr. 21, 2010) (concluding the defendant was in custody when “the officers

repeatedly told the defendant they already knew what happened”). Because

Osborn was not confronted of evidence of his guilt, this factor weighs in favor of

concluding Osborn was not in custody.

Finally, the fourth Countryman factor—whether the defendant was free to

leave the place of questioning—weighs strongly against any finding Osborn was

in custody. As noted above, Moret repeatedly told Osborn it was his choice

whether to continue the interview. She told him he could leave when he wanted

and that she would escort him out. When Osborn began to feel ill, Moret stepped

out of the room and told Osborn to inform her if he needed anything. Osborn left

the room unaccompanied. See State v. Davis, No. 01-0477, 2002 WL 987881, at

*2 (Iowa Ct. App. May 15, 2002) (finding the fact the suspect left the police station

for a cigarette break and returned to continue the interview supported a conclusion

that he was not in custody). At the end of the interview, Moret did not place Osborn

under arrest. See Cam, 2011 WL 1136456, at *5 (“Not only was [defendant] free

to leave the police station he voluntarily entered, he actually did leave the police

station at the conclusion of all the interviews.”). Instead, law enforcement officials

took him back to his residence.

Considering the totality of the circumstances under the four Countryman

factors, we conclude Osborn was not in custody during the police interview. The

district court did not err in denying the defendant’s motion to suppress evidence. 14

III.

We next address Osborn’s challenge to the sufficiency of the evidence

supporting his convictions. The district court found Osborn guilty of twenty-six

counts of possession of visual depictions of minors engaging in prohibited sexual

acts, in violation of Iowa Code section 728.12(3). Although Osoborn has styled his

claim as a challenge to the sufficiency of the evidence, his actual challenge

appears to be a legal one. Osborn contends the statute requires the State to prove,

as an element of the offense, that he actually viewed each visual depiction.

Osborn’s contention that the statute requires proof the defendant actually

viewed each visual depiction is without merit. Interpretation of a statute involves

the determination of the meaning of the words used in the statute. “When we

interpret a statute, our goal is to determine legislative intent. To determine

legislative intent, we look at the words the legislature chose when it enacted the

statute, not the words it might have chosen.” State v. Pettijohn, 899 N.W.2d 1, 15

(Iowa 2017) (internal citation omitted). The statute provides: “It shall be unlawful

to knowingly purchase or possess a visual depiction of a minor engaging in a

prohibited sexual act or the simulation of a prohibited sexual act.” Iowa Code

§ 728.12(3). “‘Knowingly’ means being aware of the character of the matter.” Iowa

Code § 728.1(2); accord State v. Zieman, No. 12-0575, 2013 WL 988857, at *9

(Iowa Ct. App. Mar. 13, 2013). The statutory text is plain and unambiguous. The

plain language of the statute requires only proof of knowing possession and

nothing more. There is no language in the statutory text that could be interpreted

to require the State to prove, as an element of the offense, the defendant actually

viewed the visual depiction. Cf. United States v. Edmiston, No. 08-5657, 2009 WL 15

1066782, at *2 (6th Cir. April 22, 2009) (concluding that, under federal statute,

“actually viewing [a depiction of a minor engaging in a prohibited sexual act] is not

an element of the crime [of knowing possession]”).

As a matter of statutory interpretation, Osborn appears to recognize the

statute is plain and unambiguous and no language in the text of the statute

supports his argument that actual viewing is an element of the offense. In support

of his argument, however, Osborn contends the statute should nonetheless be

construed to require actual viewing as an element of the offense. The construction

of a statute involves the process of determining the statute’s legal effect. Osborn

relies on a statutory change to support his argument.

In 2007, Iowa Code section 728.12(3) read: “It shall be unlawful to

knowingly purchase or possess a negative, slide, book, magazine, computer,

computer disk, or other print or visual medium, or an electronic, magnetic, or

optical storage system, or any other type of storage system which depicts a minor

engaging in a prohibited sexual act . . . .” Iowa Code § 728.12(3) (2007) (emphasis

added). In State v. Muhlenbruch, the supreme court held that possession of a

computer containing multiple visual depictions of minors engaging in prohibited

sexual acts constituted only one crime. See 728 N.W.2d 212, 215 (Iowa 2007). In

response to the court’s holding in Muhlenbruch, the General Assembly amended

section 728.12(3) to its current form. See 2012 Iowa Acts ch. 1057 § 8. The

statutory change related only to the unit of prosecution for the offense, changing

the unit of prosecution from the item containing the depiction to the depiction itself.

Nothing in the statutory change added an additional element of actual viewing to

the statute. We thus reject Osborn’s proposed construction of the statute. 16

Giving Osborn the benefit of the doubt, we also construe his arugment as a

challenge to the evidence. Osborn’s argument could be construed to mean that

the State cannot show, as a matter of law, that he knowingly possessed the visual

depictions unless it can show he viewed the visual depictions. That claim is a

challenge to the sufficiency of the evidence regarding knowing possession with

respect to each count. “In reviewing challenges to the sufficiency of evidence

supporting a guilty verdict, courts consider all of the record evidence viewed ‘in the

light most favorable to the State, including all reasonable inferences that may be

fairly drawn from the evidence.’” State v. Sanford, 814 N.W.2d 611, 615 (Iowa

2012) (quoting State v. Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002)). This

court must uphold the district court’s verdict if that verdict is supported by

substantial evidence. See State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008);

State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006). “Evidence is substantial if it

would convince a rational trier of fact the defendant is guilty beyond a reasonable

doubt.” Jorgensen, 758 N.W.2d at 834.

Osborn’s challenge to the sufficiency of the evidence fails because it does

not recognize that “circumstantial evidence [can be] equally as probative as direct.”

State v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011). Thus, while Osborn is

certainly correct in claiming the State could show knowing possession by proving

Osborn viewed the prohibited depictions, see, e.g., State v. Schooley, 804 N.W.2d

105, 108 (Iowa Ct. App. 2011) (“D.S. gave a clear account of the multiple times

she witnessed her father viewing pornographic depictions of young girls.”); State

v. Cooper, No. 07-1988, 2009 WL 139520, at *2 (Iowa Ct. App. Jan. 22, 2009)

(using file timestamps to show when depictions were opened to prove knowing 17

possession), he is as certainly incorrect in contending the State cannot prove

knowing possession, as a matter of law, in the absence of such direct evidence.

Here, when the evidence is viewed in the light most favorable to the verdict,

there is sufficient circumstantial evidence to prove the defendant knowingly

possessed twenty-six visual depictions of a minor engaging in a prohibited sexual

act. The depictions were contained on a computer in Osborn’s room. Osborn was

the only person with access to the password-protected computer. Forensic

analysis showed the person who used the computer used search terms designed

to find visual depictions of minors engaging in prohibited sexual acts, such as

“PTHC” (preteen hardcore). Many of the files found on the computer matched the

search terms. For example, one file was named: “!!!New!!! (PTHC) Linda a Little

Extra217.avi.” Another file was named: “PTHC New 2014!!9 YO Elsa Waiting in

Doggy Style Position.jpg.” In addition to the file names containing the term

“PTHC,” other files had names that revealed the character of the file. For example,

one file was named: “alicia 10 yo pthc little girl loves adult sex.avi.” Another was

entitled: “12 years old boy fuck little girl.jpg.” Some of the files were downloaded

and stored on Osborn’s computer for years. From this fact, the district court could

have inferred Osborn knew of the existence of the files and intended to retain them.

This finding was supported by Osborn’s expert witness. Specifically, Osborn’s

expert witness testified the files at issue were not contained in the shared folder or

download folder of the computer and were moved to other files on separate hard

drives:

Q: Do you know were all of the files in that download file or were they in other files as well? A: Well, there were files on two 18

different devices, . . . so they weren’t in the same directory. They were images and videos on two separate hard drives. Q: So to move it from the download file to some place else, the user has to do that physically? A: Correct. Q: So, then, within a certain level of certainty, couldn’t you say that each of the images that were found Mr. Osborn had moved? A. I don’t know who’s using the computer. But generally a user in front of that computer would have been the one that moved them. Q: A user from that computer . . . moved them? A: Correct. Q: And if Mr. Osborn says he’s the only one who had access to that computer, he was the only one with the password, what does that lead—lead you to conclude? A: That it was likely that Mr. Osborn moved the files.

See State v. Manning, No. 13-1111, 2014 WL 5243347, at *6 (Iowa Ct. App. Oct.

15, 2014) (finding sufficient evidence of constructive possession of visual

depictions of minors engaging in a prohibited sexual act based on the location of

a flash drive and the drive’s contents). From this testimony, the district court could

have inferred Osborn intentionally moved files froom a shared or download folder

to separate files on different hard drives. This supports the finding Osborn

exercised knowing control, or possession, of the files. And lastly, Osborn admitted

to Moret that he viewed multiple files containing “child pornography” on multiple

occasions.

When viewed in the light most favorable to the district court’s verdict,

substantial circumstantial evidence supports a finding that Osborn knowingly

possessed each image. We reject the defendant’s challenge to the sufficiency of

the evidence.

IV.

In his last claim, Osborn argues the district court abused its sentencing

discretion in two respects. Osborn claims the sentencing court abused its

discretion in assuming Osborn viewed each of the depictions. He also argues the 19

sentencing court did not give an adequate statement of reasons for the imposition

of consecutive sentences.

We address Osborn’s first claim. At sentencing, the district court referenced

the troubling nature of the depictions. Osborn contends the troubling nature of the

depictions was irrelevant to sentencing in the absence of proof he actually viewed

the depictions. As a factual matter, the claim fails. There was strong evidence

Osborn viewed the depictions, including his confession to Detective Moret that he

viewed “child pornography” on multiple occasions. As a legal matter, the troubling

nature of the depictions was a relevant consideration even in the absence of proof

Osborn actually viewed the depictions. Osborn sought out and retained the

depictions. As a consumer of prohibited content, he is a market participant driving

demand for the creation of prohibited content. These crimes are not victimless.

The sentencing court stressed that “to call this a victimless crime is also totally

wrong. Somebody paid a price for this. People using [visual depictions of minors

engaging in prohibited sexual acts] make these kids pay a price for it.” We find

that the district court did not abuse its discretion by considering the “troubling

nature” of the depictions, regardless of whether the State proved that Osborn

viewed each image.

We next address Osborn’s contention the district court failed to give

adequate reasons for the imposition of the sentences. When the court sentences

a defendant, “The court shall state on the record its reason for selecting the

particular sentence.” Iowa Ct. R. 2.23(3)(d). This statement need not be

expansive. “[T]erse reasoning can be adequate when we know the statement in

the context of the record demonstrates what motivated the district court to enter a 20

particular sentence . . . .” State v. Thacker, 862 N.W.2d 402, 410 (Iowa 2015); see

also State v. Carberry, 501 N.W.2d 473, 478 (Iowa 1993) (finding an “extremely

terse” statement was adequate when “[s]uch brevity . . . does not necessarily

handicap our review of the sentencing discretion”).

Here, the district court grouped the convictions into three categories and

imposed consecutive sentences of two years for each category. The court stated:

The consecutive sentences, I believe it amounts to six years, is based on not picking out a few counts, but during the course of the ruling the Court is aware that certain of the offenses were troubling. Extremely troubling. Others were a lot more than extremely troubling and a lot, lot more troubling. Just down right unimaginable fits in the third category, which was the last I believe four counts. I did run those consecutive due to that. Some of those go really way, way afield from what can be considered appropriate behavior in any country. That’s the reasons for the sentence, sir.

The district court’s statements in the context of the record provides sufficient

reasons to inform this court of the basis of the sentence. The images that Osborn

possessed ranged from depictions of children exposing their genitals to depictions

of children being forced to perform sex acts on adults. The judge divided the

depictions into three categories based on the content of the depictions and

assigned consecutive sentences for each category. While the court did not

laboriously explain its reasoning for the categorical placement of each individual

depiction, it did explain the overall reasoning for the categorization. In short, the

district court categorized the counts based on its gradation of the seriousness of

the offensive conduct. Imposing consecutive sentences for perceived distinctions

between the conduct underlying separate offenses is permissible. We find the

district court’s statement of reasons was adequate. 21

For the reasons outlined above, we affirm the defendant’s convictions and

sentences.

AFFIRMED.

Scott, S.J., concurs; Danilson, C.J., concurs specially. 22

DANILSON, Chief Judge (concurring specially)

I specially concur to acknowledge the issue of whether Osborn was in

custody is a close question. The majority fails to explain that when Osborn’s father

entered the bedroom to wake him, two officers followed. When Osborn got up from

his bed, he indicated he had to use the restroom. One of the officers told Osborn

that he could “pee” but he would have to wait until he was at the police station to

have bowel movement. Such a comment could lead any reasonable person to

believe they were not given a choice to go to the police station. However, the four

factor test to determine if someone is in custody requires consideration of “(1) the

language used to summon the individual; (2) the purpose, place, and manner of

interrogation; (3) the extent to which the defendant is confronted with evidence of

her guilt; and (4) whether the defendant is free to leave the place of questioning.”

State v. Countryman, 572 N.W.2d 553, 558 (Iowa 1997). Thus, the language used

to summon Osborn to the police station is only one factor to consider.

I disagree with the majority that Osborn was not confronted with evidence

of guilt. First, Osborn knew a search warrant had been obtained and his home

was being searched. Second, Osborn was informed law enforcement officials had

information that child pornography had been accessed on a computer in the house.

The details of the forensic analysis were not necessary to confront Osborn with

evidence of guilt.

Notwithstanding these facts supporting the conclusion Osborn was in

custody, as soon as Osborn arrived at the police station the officer informed

Osborn he could stop the interview and leave at any time. In fact, when Osborn

stated to the officer that he did not think he had a choice in coming to the police 23

station, the officer explained he did have choice and did not have to talk to the

officer. I also find it significant that Osborn was transported home after the

interview. Considering all of these factors, I concur in this close decision. I would

add, if Miranda rights are not required in circumstances such as occurred here, the

officer should use the phrase, “you are free to go” rather some slang version such

as used here, “we’re out of here.”