State v. Lindgren

2004 WI App 159, 687 N.W.2d 60, 275 Wis. 2d 851, 2004 Wisc. App. LEXIS 577

• Court: Court of Appeals of Wisconsin
• Decided: July 21, 2004
• Docket: 03-1868-CR, 03-1869-CR
• Status: Published

Opinions

SNYDER, J.

¶ 1. Jack E Lindgren appeals from a judgment of conviction for five counts of possession of child pornography contrary to Wis. Stat. §§ 948.12 and 939.50(3)(e) (2001-02),¹ one count of child enticement contrary to Wis. Stat. § 948.07, and one count of manufacturing-delivering tetrahydrocannab-inols (THC) contrary to Wis. Stat. § 961.41(l)(h)l. Lindgren contends that the warrant allowing the police to search his home was illegal, and therefore the evidence discovered and used against him as a result of the illegal search should have been suppressed. He further contends that the evidence against him on the child pornography charges fails to demonstrate that he ever had possession of child pornography and that these charges constituted a multiplicity violation. We disagree and affirm the judgment of the trial court.

FACTS

¶ 2. The facts are largely undisputed. The victim, A.J., took a job at Lindgren's store in October 2001, when she was fourteen years old. A. J. did not fill out a job application, and Lindgren paid her in cash. In December, at a casual party at the business, Lindgren allowed A. J. to consume alcohol. She had worn a shirt and skirt that day, but had changed into her uniform for work. Lindgren told A.J. that he wanted a picture of her in her skirt. A.J. went to change her outfit in a bathroom. Lindgren followed her and took a Polaroid picture of her in her bra and underpants. He took a second picture of her in her shirt and skirt.

¶ 3. In January 2002, A.J.'s boyfriend began to call and visit her at work. Lindgren asked her about this and she explained that she was not allowed to use the phone to call her boyfriend from her foster home. A.J. indicated that Lindgren agreed to let her call her boyfriend from Lindgren's cell phone if he could take more photographs of her. She agreed.

¶ 4. Between January 2002 and March 9, 2002, there were three or four more photo sessions during which Lindgren would touch A.J. on her breasts, legs, and bottom. He also gave her cash, between $5 and $50, when he took pictures of her. On March 9, 2002, Lindgren took two nude photographs of A.J. and touched her vaginal area. She got dressed, left, and did not return to work for Lindgren.

¶ 5. A.J. reported the events to her foster mother, who took A. J. to the City of Kenosha Police Department on March 18, 2002. On March 19, A.J. telephoned Lindgren from the police department. Detective Ruben Silguero taped the conversation, which included the following exchange:

Lindgren: What's up?

A.J.: I was just wondering. Ah, God, umm, you said you destroyed all the pictures of me, right?

Lindgren: Yeah, you seen me throw them out.

A.J.: Yeah, but I didn't see you throw them ALL out.

Lindgren: Yeah, you did.

A. J.: No, 'cause remember one time we were in a rush, and you left 'em there, and I was just making sure you destroyed all of my naked pictures of me.

Lindgren: No, I never took 'em home. I cut 'em up. They're in the dumpster.

A.J.: They're in the dumpster.

Lindgren: The other ones, I burnt 'em. Why?

A.J.: Okay. Well, all — all the pictures of me, my (inaudible) underwear, one's the nude — nude are all done. They're thrown away, burned whatever you did with them, right.

Lindgren: Yes, you saw me. I burnt 'em. They were burnt right in front of you. The one was burnt, and the other one I cut up in front of you. That's why I did it in front of you, so you don't think that—

A.J.: No, no, no, you didn't do 'em all.

Lindgren: Oh, those other ones. No, I left here and I did the next day. And those aren't nude anyway, there [sic] just your underwear, bra.

A.J.: How many did we take?

Lindgren: I don't know. (Pause) I don't remember, (laughed) Been a few. I never took 'em home though. The only ones I took home was [sic] those ones I brought back—

¶ 6. Detective Silguero later interviewed Lindgren about A.J.'s allegations. During the interview Lindgren admitted that he thought A.J. was fifteen years old and that he had taken photographs of A. J., but he insisted that she was fully clothed in the photographs. After Silguero told Lindgren that he had listened to the phone conversation with A.J., Lindgren supplemented his statement. This time he indicated that A. J. would "flash" him by lifting her shirt to expose her bra and opening her pants to expose her underwear, which Lindgren described as "thong-type" underwear. He continued to deny taking any nude photographs of A.J., but stated "what can I do when I had a camera in my hand, I took the pictures of her flashing me."

¶ 7. After the interview, Silguero asked Lindgren for permission to search his business and his home. Lindgren said no. Silguero indicated he would draw up a search warrant and Lindgren then turned over keys to both locations in order to avoid any damage when the police entered the property. Detective Robert Queen was assigned to assist Silguero with the search warrants.

¶ 8. The detectives prepared an affidavit for a search warrant for Lindgren's home, car, and business. A Kenosha county court commissioner signed the warrant authorizing the searches.

¶ 9. Queen and Silguero found three guns, a Polaroid camera and film, and large amounts of cash at Lindgren's business. At his residence, they discovered a nursery for marijuana plant seedlings, several mature marijuana plants, marijuana that had been harvested and dried, a scale, pornographic magazines and tapes, several guns, and approximately $13,000 in cash. They also confiscated Lindgren's home computer system.

¶ 10. The State charged Lindgren with child enticement, second-degree sexual assault of a child under sixteen years of age, and manufacturing-delivering THC.

¶ 11. Police computer expert Ric Bentz, in collaboration with FBI Agent Matthew Petersen, examined Lindgren's computer. They determined that pornographic photographs were on the hard drive, including photographs from child pornographic sites. The State filed a second complaint, charging Lindgren with six counts of possession of child pornography.

¶ 12. Lindgren moved to suppress all evidence seized in the searches based on insufficiency of the affidavit supporting the search warrant. The trial court denied the motion, finding that the magistrate could have reasonably found that the objects sought were linked to a crime and that the objects would be found in the place to be searched, that is, the home.

¶ 13. Lindgren pled no contest to one count of child enticement and one count of manufacturing-delivering THC. The second-degree sexual assault of a child charge was dismissed. Following a bench trial, the court found Lindgren guilty of five counts of possession of child pornography. Lindgren appeals, asking this court to set aside all convictions.

DISCUSSION

¶ 14. Lindgren presents three issues on appeal. First, he contends that the search of his home lacked probable cause because there was an insufficient nexus between the conduct complained of and the location searched. Next, he argues that the evidence presented at trial was insufficient to support a charge of possession of child pornography. Finally, Lindgren raises a multiplicity violation. We take these issues in the order presented.

Search Warrant and Probable Cause

¶ 15. Lindgren argues that Silguero's affidavit did not demonstrate probable cause for searching his home because all of the conduct complained of occurred at his business. Specifically, he asserts that Silguero did not present any grounds for believing that a crime was committed at Lindgren's residence, and further, he challenges the sufficiency of Attachment B, a profile of preferential child molesters, as the justification for the search of his home. We give great deference to a magistrate's determination that probable cause supports issuing a search warrant. State v. Ward, 2000 WI 3, ¶ 21, 231 Wis. 2d 723, 604 N.W.2d 517. This deferential standard of review "further[s] the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." State v. Schaefer, 2003 WI App 164, ¶ 4, 266 Wis. 2d 719, 668 N.W.2d 760 (citation omitted), review denied, 2003 WI 140, 266 Wis. 2d 61, 671 N.W.2d 848 (Wis. Oct. 1, 2003) (No. 01-2691-CR).

¶ 16. When reviewing the validity of a search warrant, we are limited to the record that was before the issuing magistrate. Id., ¶ 6. Accordingly, we confine our review to Silguero's affidavit, which describes A.J.'s allegations and the taped telephone conversation, and incorporates by reference Attachment B.

¶ 17. Silguero's affidavit stated an expectation that the detectives would find "photographic material of underage children of sexually explicit nature, a computer with associated devices for storage and duplication of photographic material, and items listed on attachment B." He provided factual grounds for issuing the warrant, stating that A.J.'s statement alleged that Lindgren had taken "photographs of her nude" and that "he touched her vaginal area while she was naked." A.J. also stated that Lindgren told her that he had taken photographs of other female employees. In the taped telephone conversation, Silguero heard Lindgren admit to taking nude photographs of A. J. The affidavit contained all of this information and stated that the actions complained of took place at Lindgren's place of business.

¶ 18. In addition to A.J.'s allegations and the telephone conversation, Silguero's affidavit incorporated by reference Attachment B, entitled "Preferential Child Molester Information," which listed common habits and characteristics of child molesters. Specifically, the preferential child molester profile asserted that the affiant, here Silguero, learned through training, experience, and consultations with experts that preferential child molesters collect sexually explicit materials such as photographs or videotapes, rarely dispose of these materials, often use instant photograph equipment such as Polaroid cameras, go to great lengths to conceal and protect the illicit materials, and maintain diaries of their encounters in notebooks, on audio tape, or on their home computers.

¶ 19. Upon reviewing Silguero's application for a search warrant, the court commissioner was to make a "practical, common sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." See id., ¶ 4 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). We must consider whether, when objectively viewed, the information before the magistrate provided "sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that they will be found in the place to be searched." State v. Marquardt, 2001 WI App 219, ¶ 13, 247 Wis. 2d 765, 635 N.W.2d 188. We conclude that Silguero did indeed provide sufficient facts to the court commissioner.

¶ 20. The quantum of evidence required to establish probable cause to issue a search warrant is less than that needed to bind over for trial at a preliminary hearing. State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991). "Probable cause is not a technical, legalistic concept but a flexible, common-sense measure of the plausibility of particular conclusions about human behavior." Id. (citation omitted). Here, Silguero placed a plausible scenario, based on facts and experience, before the court. He alleged that the search warrant was intended to uncover evidence related to the crime of sexual exploitation of a child, that the search would uncover items specifically referenced by the victim, and that it was reasonable to expect that the perpetrator of this sort of crime would go to great lengths to conceal the objects and may have kept a record of the illegal activity on a home computer. We agree with Lindgren that Silguero could have presented a more complete foundation for the search of Lindgren's residence. For example, the transcript of the telephone conversation reveals that when pressed about the photographs, Lindgren stated, "The only ones I took home was [sic] those ones I brought back." Had Silguero specifically referenced this statement in the affidavit, the search warrant would have been less vulnerable to Lindgren's attack. It is the established policy of our appellate courts, however, that marginal cases regarding a warrant-issuing magistrate's determination of probable cause should be largely determined by the strong preference that officers conduct their searches pursuant to a warrant. Id. at 990. We hold that the court commissioner in issuing the search warrant made a practical, commonsense decision whether, given all of the circumstances set forth in the affidavit before him, there was a fair probability that contraband or evidence of a crime would be found at Lindgren's residence. See Schaefer, 266 Wis. 2d 719, ¶ 4.

Sufficiency of the Evidence for Possession of Child Pornography

¶ 21. Following a bench trial, Lindgren was convicted on five of six counts of possession of child pornography. At trial, the State presented evidence obtained from Lindgren's home computer. Through its computer experts, Bentz and Petersen, the State introduced eleven exhibits, specifically, five thumbnail images and six other images that had been electronically opened to enlarge the pictures. At trial, Petersen testified that in order for the photographs found on Lindgren's hard drive to be stored as they were, the person would have had to go to the Web site and click on the small thumbnail pictures to enlarge the images. Upon clicking to enlarge the image, it would be stored on the hard drive. Petersen opined that clicking on the thumbnail pictures to bring up larger images reflected an attempt to "control or manipulate" the images.

¶ 22. Lindgren challenges the court's finding that he "possessed" child pornography as that term is used in Wis. Stat. § 948.12(lm), which states in relevant part:

(lm) Whoever possesses any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct under all of the following circumstances is guilty of a Class I felony:

(a) The person knows that he or she possesses the material.

(b) The person knows the character and content of the sexually explicit conduct in the material.

(c) The person knows or reasonably should know that the child engaged in sexually explicit conduct has not attained the age of 18 years.

¶ 23. Lindgren asserts that the images recovered from his personal computer were never in his possession. He relies on his own expert, Steven Greenfield of SMG Computing, Inc., who testified that no evidence of any child pornography had been saved on Lindgren's computer. Lindgren also raises the issue of "pop-up" ads that will appear when a computer user is on the Internet and may result in unintended or undesired information on any computer. In sum, Lindgren contends that the evidence presented was insufficient to support the court's finding of possession, a required element of the crime.

¶ 24. The burden of proof is on the State to prove every essential element of the crime charged beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). The test is not whether this court is convinced of the defendant's guilt, but whether we can conclude that the trier of fact could, acting reasonably, be so convinced by the evidence. Id. at 503-04. When reviewing the evidence to challenge a finding of fact, we view it in the light most favorable to the finding. Id. at 504. Under this standard, a reviewing court may overturn a verdict on grounds of insufficiency of the evidence only if the trier of fact could not possibly have drawn the appropriate inferences from the evidence adduced at trial. State v. Watkins, 2002 WI 101, ¶ 68, 255 Wis. 2d 265, 647 N.W.2d 244.

¶ 25. Lindgren's challenge to the concept of possession in the context of computer material has been recently, though not widely, addressed. We take guidance from a federal case where facts and issues reasonably analogous to those here were considered. In United States v. Tucker, 305 F.3d 1193 (10th Cir. 2002), cert. denied, 537 U.S. 1223 (2003), Tucker argued that because the child pornography images were only temporarily displayed on his computer screen and he did not desire the images to be saved on his hard drive, he was not guilty of possession of the images. Id. at 1204. Tucker argued that a computer will automatically save thumbnail pictures to the temporary Internet cache file and that this involuntary process should not be held against the computer user. Id. at 1205.

¶ 26. The Tucker court was not persuaded, finding that Tucker had control over the files present in his Web browser cache file. Id. at 1204. At the trial, the government's computer expert testified that an image in a cache file can be attached to an e-mail, posted to a newsgroup, placed on a Web site, or printed to a hard copy. Id. The court held:

Tucker ... intentionally sought out and viewed child pornography knowing that the images would be saved on his computer. Tucker may have wished that his Web browser did not automatically cache viewed images on his computer's hard drive, but he concedes he knew the Web browser was doing so. Tucker continued to view child pornography knowing that the pornography was being saved, if only temporarily, on his computer. In such circumstances, his possession was voluntary. Since he knew his browser cached the image files, each time he intentionally sought out and viewed child pornography with his Web browser he knowingly acquired and possessed the images.

Id. at 1205 (footnote omitted).

¶ 27. We adopt the Tucker court's reasoning. Here, the State's experts testified that Lindgren had visited teen sex Web sites, that five images showed up twice on Lindgren's computer hard drive (once as a thumbnail and once as a larger image), that for images to be saved on Lindgren's hard drive he would have had to click on and enlarge the thumbnail images, and that the only way an image would have been stored on the hard drive was if the computer user tried to save or otherwise manipulate the image by clicking on it. Further, Petersen testified that one of the images was saved to "My Documents" in the "Jack Lindgren" folder, but the others were not because the new operating system overwrote the old one.² Although Lindgren attempts to paint himself as the victim of computer viruses and unwanted "pop-up" ads, there is sufficient evidence in the record to demonstrate that he knowingly possessed the child pornography images on his computer because he repeatedly visited child pornography Web sites, clicked on thumbnail images to create larger pictures for viewing, accessed five images twice, and saved at least one image to his personal folder. We conclude that the trial court as finder of fact could, acting reasonably, have been convinced by the evidence that Lindgren possessed the child pornography. See Poellinger, 153 Wis. 2d at 504.

Multiplicity

¶ 28. Lindgren's final claim of error rests on the multiple possession charges for which he stands convicted. Lindgren does not argue the multiplicity issue in his brief-in-chief and cannot save it in his reply brief. Lindgren attempts to recast the purpose of the reply brief as one that can respond to any issue raised by the respondent in the response brief. In other words, Lindgren asserts that because the State's response brief noted that he had waived the issue of multiplicity, he is now free to argue it in his reply brief. That is not the law. If an appellant fails to discuss an alleged error in his or her main brief, the appellant may not do so in the reply brief. See Marquardt, 247 Wis. 2d 765, ¶ 14 n.3. We may decline to review an issue inadequately briefed and deem this issue waived. See Roehl v. Am. Family Mut. Ins. Co., 222 Wis. 2d 136, 149, 585 N.W.2d 893 (Ct. App. 1998).

CONCLUSION

¶ 29. We hold that the court commissioner in issuing the search warrant made a practical, commonsense decision whether, given all of the circumstances set forth in the affidavit before him, there was a fair probability that contraband or evidence of a crime would be found at Lindgren's residence. See Schaefer, 266 Wis. 2d 719, ¶ 4. We further hold that the facts presented at trial support the court's finding of "possession" within the meaning of Wis. Stat. § 948.12(lm), and conclude that the convictions for five counts of possession of child pornography are supported by sufficient evidence. We decline to review the multiplicity challenge because Lindgren has waived the issue.

By the Court. — Judgment affirmed.

1 All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

2 In March 2002, Albert Thumler, III, an acquaintance of Lindgren's, helped Lindgren upgrade his system from Windows Millennium to Windows XE The upgrade was performed just days before the police seized the computer.