Taliaferro v. State

2020 Ark. App. 68

597 S.W.3d 58

Rocky TALIAFERRO, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-397

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: February 5, 2020

Rehearing Denied March 11, 2020

Culpepper Law Firm, PLLC, by: Ryan K. Culpepper, Little Rock; and Hurst Law Group, P.A., by: Q. Byrum Hurst, Hot Springs, for appellant.

Leslie Rutledge, Att'y Gen., by: David L. Eanes, Jr., Ass't Att'y Gen., for appellee.

RAYMOND R. ABRAMSON, Judge

Rocky Taliaferro appeals his convictions of internet stalking of a child and 104 counts of distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child.¹ On appeal, Rocky argues that the circuit court erred by denying his directed-verdict motion on the internet-stalking-of-a-child charge because the State presented insufficient evidence that he made an effort to arrange a meeting with a minor. He also argues that the circuit court erred by denying his directed-verdict motion on 104 counts of distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child because the State presented insufficient evidence that he knowingly possessed the child pornography. We reverse and dismiss the internet-stalking-of-a-child conviction and affirm the convictions for distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child.

On March 2, 2017, the State charged Rocky with internet stalking of a child, computer child pornography, and 106 counts of distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child. The case proceeded to trial on January 19, 2019.

At trial, Ryan Jacks, a state trooper assigned to the cyber-crimes division, testified that he began investigating Rocky after the Arkansas State Police received a tip from the National Center for Missing and Exploited Children (NCMEC). Specifically, NCMEC notified the Arkansas State Police that two sexually explicit images of children had been uploaded to a chat room called ChatStep on July 28, 2016, and that the IP address associated with the upload belonged to an AT&T customer named Madison Taliaferro in Arkansas. He noted that Madison’s AT&T account was a secured account with password protection at a private residence, not a free Wi-Fi account. He explained that he determined Madison’s home address and that Rocky, Madison’s son, also lived at the residence.

Jacks testified that on October 5, 2016, he went to the Taliaferro residence and that Rocky answered the door. He asked for Rocky’s consent to search the electronic devices in the house due to the NCMEC tip, but Rocky refused. Jacks stated that he then obtained a search warrant and that a subsequent search of a laptop found in the home showed that a user had logged in to ChatStep on July 28, 2016, at the exact time the pornographic images had been uploaded to ChatStep. He explained that the laptop had three users—the administrator, Rocky, and Ariel, who is Rocky’s sister. Jacks testified that Rocky had told him that he was the only individual who had access to the laptop from January 2016 through July 2016 because Ariel had moved out of the home in January 2016. Jacks further testified that he verified that Madison was at work on the date and time the images were uploaded to ChatStep.²

Jacks testified that he found 930 pornographic images on the laptop that had been downloaded under Rocky’s username. Jacks stated he could not determine the exact dates that the images were downloaded, but he stated that most of the images had a creation date of September 1, 2011. He noted that because most of the images had the same creation date, the images could have been downloaded from an external drive such as a USB drive. He stated that 96 external devices had been connected to the laptop, which was a large number of devices. He noted that Rocky had been a user on the laptop from 2011 to 2016.

Jacks testified that of the 930 pornographic images, he considered 705 images to be category 1, which are images showing very lewd and sexual behavior with a minor under the age of eighteen. He stated that he considered 225 of the 930 images to be category 2, which are images in which he could not determine the age of the victim. He further testified that he located the two images that were uploaded to ChatStep on the laptop under the username Rocky. He explained that at the prosecutor’s request, he selected 106 images from the laptop that were undeniably child pornography, which included sadomasochistic and bestiality images. The State introduced those 106 images into evidence.

Jacks further testified that he examined the search history for the username Rocky and that the history included the search terms "fuck," "infant," "kids," "young," and "Tori." He stated that "Tori" is the most common term used for individuals who download child pornography. He explained that "Tori" is the most victimized person in child-pornography history and that she was abused from a young age until she left the home. He noted that her images have been shared millions of times.

Jacks also testified that he searched Rocky’s iPhone and that he found a photo of a driver’s license that belonged to a fifteen-year-old girl named K.K. Jacks further explained that the iPhone contained thousands of messages between Rocky and K.K. between June 19 and July 3, 2016. He noted that K.K. lived with her father in Missouri, but at the time of her conversations with Rocky, she was visiting her mother in Benton. The communications between Rocky and K.K. included the following messages on June 23:

ROCKY : ; ) we would have sex all day. Lol. This is for sure

K.K.: I have nothing to do next week: )

ROCKY : ; ) oh yea? How would we?

K.K.: However you want

ROCKY : How would I pick you up with out anyone knowing? Lol

K.K.: Well my brother doesn't need to know where I go

ROCKY : Lol well what about your mom?

K.K.: That I went out with friends

ROCKY : But want she be there at the house?

K.K.: Not during the week. Which the only time I'll be there.

ROCKY : Mmmm: ) let me think on it. About how. lol

K.K.: Okay. Well it can't be Wednesday

ROCKY : Ok. Monday Tuesday Thursday Friday?

K.K.: Yeh. But I wouldn't pick Friday honest

ROCKY : Ok. Lol

K.K.: Yeh. But only if you want.

ROCKY : I do want to. lol. Believe me.

K.K.: ok I believe you.

ROCKY : ; ) you know in Arkansas legal age is 16. Lol

K.K.: Whatttt I didn't know that. Well I'll be 16 in September if you wanna be safe

ROCKY : I'm not sure, you have got me really turned on; ) lol

....

ROCKY : Well 16 will be safer. But I'm not sure yet?; ) lol

K.K.: I'll be back around thanksgiving or Christmas

ROCKY : That is a while. Lol

K.K.: I'm a patient person

ROCKY : Ok lol

K.K.: So wait?

ROCKY : Let me think about it. Lol. Either we do or we wait; ) lol

K.K.: ok

ROCKY : What do you feel comfortable with?

K.K.: Waiting because I really don't want you getting in trouble in any way.

ROCKY : Ok then we will wait; ) lol

On June 25, the two exchanged the following messages:

ROCKY : Oh yea? Mmm maybe you should start playing with you self, and I'll be there shortly ... Mmmm I will rip your shorts off and go down on you, I want to taste your sweet pussy so bad

K.K.: Oh my quit it.; ) I don't do that.

K.K.: But I'm game

K.K.: You're not really gonna come are you tho? Bc my parents are here

ROCKY : No I'm not. lol I wouldn't do that and cause a scene. It’s to hard to quit it. You sure your don't want to touch yourself and imagine I'm inside you.; )

On June 26, they exchanged the following messages:

ROCKY : Well, nothing could happen right? To many obstacles in the way. Like you said, your family with age. You live in mo. Doesn't matter what we think.

ROCKY : I mean even if we wanted to. How could it happen?

K.K.: Idk I just like to think about stuff like that I guess

ROCKY : Are ya thinking? Lol

K.K.: No I was workin

ROCKY : Well yea, me too lol. I would date ya. Even when you turn 16, and you can consent to sex. Parents wouldn't allow it to happen. Lol. 18 it wouldn't matter

On June 28, Rocky and K.K. exchanged the following messages:

ROCKY : You at home by yourself today?

K.K.: I mean Cameron’s [K.K.’s brother] here.

....

ROCKY : Was thinking about kidnapping ya. Lol

ROCKY : Yea: ) lol been casing out the scenarios. Lol.

K.K.: I wouldn't.

ROCKY : Lol I Know. Just a good thought.

K.K.: Yeh.

K.K. then testified that she first met Rocky at the Saline County Boys & Girls Club in Benton in 2007 when she was six or seven years old. She explained that she moved to Missouri when she was thirteen, and Rocky reconnected with her on social media when she was fifteen. She stated that they began communicating via text messages because she had unlimited messaging. She testified that their conversations involved sex and that she eventually stopped communicating with Rocky because she was afraid of actual sexual contact. She stated that he had asked her to send him photos of her body and that she had done so. K.K. recalled two instances in which Rocky said that he wanted to meet her, and she noted that she was in Arkansas during that summer but that she returned to Missouri around July 3.

At the conclusion of the State’s case, Rocky moved for a directed verdict on the internet-stalking-of-a-child charge and argued that the State had presented insufficient evidence that he had made an effort to arrange to meet with K.K. He also moved for a directed verdict on 104 counts of possession of child pornography and argued that the State presented insufficient evidence that he had knowledge that the images were on the computer.³ The court denied both motions.

The jury later convicted Rocky of internet stalking of a child, computer child pornography, and 106 counts of distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child. Rocky was sentenced to a total of 160 years’ imprisonment. This appeal followed. On appeal, Rocky argues that the circuit court erred by...