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COA rejects novel discovery claim and other challenges to child pornography conviction

State v. Jacob Richard Beyer, 2022AP2051, 1/11/24, District 4 (not recommended for publication); case activity (including briefs)

Although Beyer labors mightily at conjuring up legal arguments for reversal, COA is uniformly unpersuaded and unimpressed by his arguments and affirms.

As summarized by the COA, the underlying law enforcement investigation began when specialized investigative software downloaded a file, constituting child pornography, via a peer-to-peer network from an IP address eventually linked to Beyer’s residence. (¶¶7-8). Police then obtained a warrant for the residence and seized Beyer’s computer. (¶¶9-11). The hard drive contained child pornography. (¶11). Beyer also admitted to downloading and “regularly” viewing child pornography. (¶10).

Beyer tried, and failed, to suppress the child pornography evidence. (¶16). Following further convoluted legal maneuvering, the State ultimately pursued a single charge of child pornography possession, relating to one image recovered from Beyer’s computer (importantly, not the file detected over the peer-to-peer network). (¶17). The parties stipulated that nine other counts originally charged could be admitted as other-acts. (Id.). Beyer waived his right to a jury trial and the circuit court found him guilty. (Id.). He presents the following issues:

Right to Examine Investigating Agent’s Computer

On appeal, Beyer’s first challenge is that the circuit court wrongly denied his motion seeking to permit his expert to access the State’s computer, which had been used to download the file over the peer-to-peer network which kicked off the entire investigation. (¶19). To understand the contours of the claim, some additional facts are needed:

Here, the officer claimed to have downloaded an image over the peer-to-peer network that would have originated from Beyer’s computer and would have been in a “shared folder.” (¶30). Yet, by the time police executed the search warrant, that particular file was not found. (¶31). Beyer called an expert, who testified that it was technically possible that a vulnerability in the peer-to-peer network could have allowed a third-party to manipulate the contents of Beyer’s shared folder. (¶30). The agent who conducted the investigation accepted this as a technical possibility, but denied that he had ever encountered the scenario in real life. (¶32). Beyer moved pretrial for an order permitting his expert to examine the State’s computer to determine whether there was evidence supporting his expert’s theory. (¶31). On appeal, Beyer contends that if this evidence existed, it would have supported a Fourth Amendment motion to exclude the trial evidence, presumably because it would have undermined probable cause. (¶26).

This is, as COA acknowledges, a thoroughly novel argument. (¶19). Although there is a lot of ink spilled sussing out the constitutional nuances of Beyer’s claim, COA ultimately opts to simply assume without deciding that Beyer had a theoretical “right” to access this evidence. (¶27). As Beyer concedes that the “favorable” and “material” criteria from Brady v. Maryland apply, COA interprets this to mean that Beyer must show a “reasonable probability” of a different outcome at the suppression hearing had he obtained the evidence in question. (¶28). Beyer, however, cannot meet his burden. Here, the agent’s testimony that he had never encountered such a situation was accepted as credible by the circuit court and Beyer’s expert was only able to offer “mere possibilities” that are heavily dependent on a series of “what-ifs.” (¶¶32-33).

Franks/Mann Violation

Next, Beyer targets the averments in the warrant affidavit discussing “collectors” of child pornography. (¶28). This line of argument ultimately relates to and is intertwined with his probable cause argument, discussed below. Beyer is aggrieved because, while the warrant affidavit talked about the “tendency” of persons who download child pornography to retain those images for later viewing, the agent’s testimony conceded that not all persons who access child pornography over peer-to-peer systems retain the images. (¶40).

COA easily rejects this challenge, however, as it disagrees that there is any contradiction between the warrant affidavit and the agent’s testimony, let alone a contradiction that would sustain Beyer’s somewhat thinly-developed Franks/Mann argument. (¶51). Thus, while COA agrees that the agent’s testimony recognizes a possibility not discussed in the affidavit–that the peer-to-peer user may not actually retain the file permanently–Beyer is really faulting the affiant for not “flesh[ing] out any and all alternative reasonable inferences” despite the affidavit also using “terms indicating less-than-certain probabilities and tendencies that the evidence is there.” (¶52). In COA’s view, this is not at all equivalent to the well-settled requirement for a “deliberate falsehood or reckless disregard for the truth[…].” (Id.). Beyer is asking COA to stretch and modify these precedents to cover this scenario, and COA declines the invitation. (Id).

Probable Cause

Beyer argues that “averments that someone merely shared a file of child pornography from his IP address does not establish probable cause that he knowingly obtained or shared the file, or more generally that he was someone ‘likely to retain [child] pornography.'” (¶57). Beyer gets it wrong, however, because the warrant affidavit did not need to address each element of the charge of possession of child pornography; rather,  all the State needed to establish in order to obtain a warrant was that contraband–child pornography–would be found in the place searched. (¶58). The fact that a device at Beyer’s residence was used to share child pornography meets the mark. (Id.).

Sufficiency of the Evidence 

Finally, Beyer claims the evidence was insufficient to convict. (¶63). Beyer does not dispute that the single image at issue at trial was child pornography; instead, he argues the State did not prove his “knowing possession” thereof. (¶65). Beyer appears to argue that, because the “last accessed” and “last modified” times for the file exactly match the time at which the image was downloaded, then there is no evidence he actually opened it. (¶74). He argues that if he did not open it, then he could not have known what the file contained. (Id.). However, the State’s expert testified the file was “opened,” and Beyer does not develop any argument as to why this testimony could not have been relied on by the factfinder. (¶75). The remaining evidence–including Beyer’s statement to law enforcement that he regularly downloaded and viewed child pornography as well his downloading and viewing of other images in the same “set” at the same time–totally undermines his sufficiency argument and COA affirms. (¶76).

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