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§ 948.12(1m), Possession of Child Pornography – Sufficiency of Evidence, Element of “Possession”

State v. Jack P. Lindgren, 2004 WI App 159, PFR filed 8/20/04
For Lindgren: Stephen M. Compton

Issue: Whether the evidence was sufficient, on the element of possession, to sustain conviction for possessing child pornography, where the defense expert “testified that no evidence of any child pornography had been saved on Lindgren’s computer,” ¶23.


¶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. …

¶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.


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