State v. Vaughn

962 N.W.2d 267 (Table)

2021 WI App 41

STATE of Wisconsin, Plaintiff-Respondent,

v.Philip W. VAUGHN,^† Defendant-Appellant.

Appeal No. 2019AP2356-CR

Court of Appeals of Wisconsin.

May 18, 2021

PER CURIAM.

¶1 Philip Vaughn appeals a judgment, entered upon a jury's verdicts, convicting him of two counts of possession of child pornography. Vaughn argues the evidence at his trial was insufficient to support his convictions. We reject Vaughn's arguments and affirm.¹

BACKGROUND

¶2 The State charged Vaughn with two counts of possession of child pornography. The first charge arose after law enforcement downloaded multiple images of child pornography from a peer-to-peer file sharing network on July 3, 2015. Those images had been made available for sharing by a computer with an IP address registered to Mosaic Telecom, which identified Vaughn as the account subscriber.² The second charge against Vaughn was based on images that were discovered during a search of a laptop and USB drive that were seized from his residence during the execution of a search warrant on August 18, 2015.

¶3 The case proceeded to a two-day jury trial, and the jury ultimately found Vaughn guilty of both counts. Vaughn received concurrent sentences totaling five years’ initial confinement and five years’ extended supervision. He now appeals, arguing the evidence at trial was insufficient to support his convictions.

DISCUSSION

¶4 Whether the evidence was sufficient to sustain a guilty verdict in a criminal prosecution is a question of law that we review independently. State v. Smith , 2012 WI 91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 410. A defendant challenging the sufficiency of the evidence "bears a heavy burden," as "[t]he test for sufficiency of the evidence to convict is highly deferential" to the jury's verdict. State v. Klingelhoets , 2012 WI App 55, ¶10, 341 Wis. 2d 432, 814 N.W.2d 885. Under that test, we may not reverse a conviction unless the evidence, viewed most favorably to the State and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. State v. Poellinger , 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990).

¶5 If any possibility exists that the jury could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, we may not overturn a verdict, even if we believe the jury should not have found guilt based on the evidence before it. Id. at 507. The jury "is the sole arbiter of the credibility of witnesses and alone is charged with the duty of weighing the evidence." State v. Webster , 196 Wis. 2d 308, 320, 538 N.W.2d 810 (Ct. App. 1995). When the evidence supports more than one inference, we must accept the inference drawn by the jury unless the evidence on which that inference was based is incredible as a matter of law. Poellinger , 153 Wis. 2d at 506-07.

¶6 To prove that Vaughn possessed child pornography, the State needed to prove that: (1) Vaughn knowingly possessed a recording—i.e., a reproduction of an image or a sound or the storage of data representing an image or a sound; (2) the recording showed a child engaged in sexually explicit conduct; (3) Vaughn knew or reasonably should have known that the recording contained depictions of sexually explicit conduct; and (4) Vaughn knew or reasonably should have known that the person shown in the recording engaged in sexually explicit conduct was under eighteen years old. See WIS. STAT. § 948.12(1m) (2019-20); WIS JI—CRIMINAL 2146A (2020).

¶7 Vaughn argues the State failed to prove the first of these elements—namely, that he knowingly possessed the images in question. To find that Vaughn knowingly possessed the images, the jury needed to find either: (1) that he knowingly had actual physical control over the images; or (2) that the images were in an area over which he had control and he intended to exercise control over them. See WIS JI—CRIMINAL 2146A (2020). The jury did not need to find that Vaughn owned the images or that he had exclusive control over them. See id.

¶8 The evidence presented at Vaughn's trial was more than sufficient to support a finding that he knowingly possessed child pornography on both July 3, 2015, and August 18, 2015. First, the jury heard the testimony of Jesse Crowe, a special agent with the Wisconsin Department of Justice (DOJ) who specializes in investigating internet crimes against children.

¶9 Crowe explained that during the course of his investigations, he uses software that reaches out to IP addresses that have been identified as being "willing to share child exploitation material" to learn what files they have available to share over peer-to-peer networks, such as LimeWire. If a target computer is on and LimeWire is running, that computer will return a list of files that it has available to share. If that list includes files containing suspected child pornography, Crowe uses special software to perform a single-source download of those files from the target computer's shared folder.³ Crowe clarified that an IP address is unique to a particular computer used to access the internet at a given time. He also explained that a user searching for files in LimeWire at a particular time may view and download files only from computers that are powered on and have LimeWire actively running at that time.

¶10 Crowe testified that on July 3, 2015, he used the procedure described above to connect with an IP address that was suspected of sharing child pornography. Vaughn was identified as the account subscriber for that IP address. Crowe used software to obtain a list of ten files—most of which had names consistent with images of child pornography—that were available for sharing on LimeWire from Vaughn's IP address. Crowe then used special software to perform a single-source download of eight of the ten listed files. Crowe determined that at least three of those files—which had file names containing the terms "pedo 8yo girl suck 8yo boy," "PTHC Frifam Pedoland," and "1301 onion"—were images of child pornography.

¶11 The jury also heard testimony that on August 18, 2015, law enforcement executed a search warrant at Vaughn's residence, seeking evidence of child pornography stored on electronic devices. DOJ special agent Jonathan Meyer testified that he interviewed Vaughn during the search, and a recording of that interview was played for the jury. When asked during the interview about the images that had been shared from his IP address on July 3, 2015, Vaughn first claimed that he was not home on that date because he was camping with his family. Vaughn later admitted, however, that he had not joined his family on the camping trip, and he instead claimed that he was on the road as a commercial trucker on July 3. When Vaughn's driving logs disproved that claim, he told police that he was home alone on July 3 playing a video game. He denied having any knowledge of child pornography files in his shared LimeWire folder and claimed that he kept only music files in that folder.

¶12 Law enforcement seized various items during the search of Vaughn's residence, including a silver HP laptop. In his interview with Meyer, Vaughn admitted that he had obtained the laptop from a rent-to-own store on June 30, 2015, that he had installed LimeWire on it, and that he was its sole user. Digital forensics examiner Christine Byars testified that she examined the laptop's hard drive and determined that its Windows operating system had been reinstalled on July 11, 2015. Byars discovered fragments of child pornography images in the hard drive's unallocated space, which she explained indicated that the files had been deleted. Byars testified that files in a hard drive's unallocated space can be accessed using special software, but they are not accessible to a regular user without such software. One of the deleted images that Byars discovered on Vaughn's hard drive matched an image that Crowe had downloaded through LimeWire from Vaughn's IP address on July 3, 2015.

¶13 Byars also recovered fragments of text keyword searches from Vaughn's laptop hard drive that included terms commonly used by people seeking child pornography. For example, Byars located instances in which someone associated with the user profile "Philip" searched the peer-to-peer website Ares with the term "3YO" on multiple occasions after the Windows reinstall on July 11, 2015.

¶14 Byars also testified that she found no evidence that the fragments of child pornography images she discovered on Vaughn's hard drive were present before June 30, 2015—the date Vaughn purchased the laptop. Vaughn's digital forensics expert similarly testified that although he found artifacts of files that had existed on the hard drive before June 30, 2015, there was no evidence of any artifacts of child pornography that existed before that date.

¶15 Byars also testified regarding her examination of a USB drive that was found in Vaughn's wife's purse during the search of his residence. Byars recovered an image of a prepubescent girl with exposed genitalia from the USB drive, as well as a movie file that depicted a young child fellating an adult man. Byars testified those files appeared to have been transferred to the USB drive in October 2012. Byars further testified that the files had been deleted from the USB drive at some point but were still...