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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| CHRISTOPHER J. WORDEN, | ) |
| ) Court of Appeals No. A-10005 | |
| Appellant, | ) Trial Court No. 3KN-02-00966 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2216 May 22, 2009 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Kenai, Charles T. Huguelet,
Judge.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant. Blair M.
Christensen, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
COATS, Chief Judge.
After a jury trial, Christopher J. Worden was convicted
of three counts of sexual abuse of a minor in the first degree,1
six counts of sexual abuse of a minor in the second degree,2 four
counts of possession of child pornography,3 and one count each of
indecent exposure in the second degree4 and unlawful exploitation
of a minor.5 Superior Court Judge Charles T. Huguelet sentenced
Worden to a composite sentence of 37 years and 6 months
imprisonment with 21 years and 6 months suspended.
Worden appeals, arguing that Judge Huguelet erred in
denying his motion to dismiss the indictment and in refusing to
grant Wordens motion for a continuance when the State presented
an expert witness without appropriate notice under Alaska
Criminal Rule 16. Worden also argues that the evidence presented
at trial was insufficient to support his conviction for
possession of child pornography. Finally, Worden argues that
Judge Huguelet imposed an excessive sentence.
We conclude that Judge Huguelet did not err in refusing
to grant Wordens motion to dismiss the indictment and did not err
in denying Wordens motion for a continuance. However, we
conclude that the State did not present sufficient evidence to
convict Worden of possession of child pornography. Because this
latter decision affects Wordens sentence, we remand for
resentencing and do not decide whether Wordens sentence was
excessive.
Factual background
On May 27, 2002, Juanita Thirlwell was visiting her son
and daughter-in-law, Gene and Shari Conner, and her
grandchildren, including C.C. (age eleven) and S.B. (age nine) at
their home in Kenai. Worden, a family friend, was also at the
house. At some point, Worden, C.C., and S.B. went into another
room to watch a movie. In a reflection in a window, Thirlwell
saw Worden rubbing and squeezing S.B.s buttocks and touching her
vaginal area over her clothes. The next weekend, Thirlwell,
Shari Conner, S.B., and C.C. reported the assault to the Kenai
police.
On June 3, 2002, Kenai police officers interviewed
Worden. Worden admitted to having engaged in some inappropriate
conduct with C.C. and S.B. and was arrested. Wordens wife,
Renee, gave the police permission to seize and search two
computers from her home that Worden had used. Police department
employee Virgil Gattenby conducted a forensic examination of the
computers. He found multiple images of child pornography in the
computers cache files. Worden was indicted on numerous felony
charges.
At trial, S.B. testified that Worden had touched her on
her breasts, buttocks, and genital area numerous times, including
the incident on May 27, 2002. She also stated that Worden
digitally penetrated her vagina and anus, and made her masturbate
him. C.C. testified that Worden had touched her buttocks and
breasts on a few occasions. Worden was convicted and he now
appeals.
Wordens motion to dismiss the indictment
Prior to trial, Worden moved to dismiss the indictment.
Wordens motion was based on a factual inaccuracy. He argued that
it was improper for Shari Conner, S.B.s mother and C.C.s
stepmother, to sit on the grand jury panel that indicted him. In
its opposition, the State pointed out that, although Conner was a
member of the grand jury venire which had been called to hear
cases over a three-month period, she did not sit on the panel
that indicted Worden. In denying Wordens motion to dismiss the
indictment, Judge Huguelet noted that Conner was not on the panel
that indicted Worden and that Worden had not presented
particularized circumstances establishing the likelihood of a
significant influence on the grand jury as a whole.6
On appeal, Worden argues that, at the grand jury
proceeding, the State should have conducted a more searching
inquiry into the grand jurys ability to impartially and fairly
assess [Conners] testimony. But Worden concedes that he did not
raise this issue in the trial court. He must therefore establish
plain error. Because Worden never raised this issue in the trial
court, there is simply no record to indicate whether the grand
jurors might have been prejudiced by their association with
Conner. Further, even if Worden had established prejudice and
Judge Huguelet had granted the motion to dismiss the indictment,
the State could have easily reindicted Worden because the case
against him was strong.7 There is simply no basis to find plain
error.
Wordens motion for a continuance
Worden argues that the State called an expert witness
at trial without giving him the notice required by Alaska
Criminal Rule 16. Rule 16(b)(1)(B) requires the prosecutor to
inform the defendant, no later than forty-five days before trial,
of any expert witnesses the prosecutor is likely to call at
trial. Among other things, the prosecutor is to furnish the
defendant with a written description of the substance of the
proposed testimony of the expert, the experts opinion, and the
underlying basis of that opinion.8
The witness in question was Virgil Gattenby. Gattenby
worked at the Kenai Police Department as the communications
supervisor. This job entailed running the 911 center, working as
the system administrator, and occasionally doing computer
forensics work. Gattenby was not a law enforcement officer but
had previously been an information management officer in the
military. In addition to maintaining computer networks for the
Department of Defense, Gattenbys military experience included
doing computer forensic analyses and testifying at court martials
based on those analyses. Gattenby performed the computer
forensic analysis on Wordens computer.
At trial, after the State asked Gattenby if he found
child pornography on Wordens computer, Worden objected,
apparently because he believed that the State would be eliciting
an expert opinion from Gattenby. After a mostly inaudible bench
conference, Judge Huguelet stated: I wont allow [Gattenby] to
give any expert opinions.
Worden did not make any further objections during
Gattenbys testimony. But after Gattenby testified, Worden argued
that portions of Gattenbys testimony constituted expert testimony
and that the State had violated Rule 16 by not giving notice that
it was calling Gattenby as an expert witness. Worden asked Judge
Huguelet to strike Gattenbys testimony or to grant the defense a
continuance. Worden represented that if the State had given
notice that Gattenby would be called to testify as an expert, he
would have obtained his own expert to analyze the information
presented by Gattenby and might have called the expert as a
witness at trial.
Judge Huguelet observed that Gattenby had testified
before the grand jury. He concluded that Worden had known about
the nature of Gattenbys testimony and that he had copies of the
exhibits that Gattenby had relied upon for a long time. Worden
conceded that he had possessed this information for years. But
Wordens attorney argued that it was not his job to ask the State
to hurry up and get their expert notice in so they can convict my
client.
Judge Huguelet denied Wordens motion for a continuance.
He concluded that Worden was on notice of the type of testimony
that Gattenby was going to give and the issues that would be
raised by that testimony. This conclusion is supported by the
record. Furthermore, when Worden moved for a continuance, he
never gave any indication of how long of a continuance he would
need or what he specifically intended to accomplish if the court
granted the motion for a continuance. Accordingly, we conclude
that Judge Huguelet did not abuse his discretion in denying
Wordens motion for a continuance.
In addition, we find that Worden has waived this
objection. When Worden initially objected to Gattenbys
testimony, Judge Huguelet ruled that he would not allow Gattenby
to give any expert opinions. This ruling alerted Worden that if
he believed that Gattenby was testifying as an expert during some
portion of his testimony, Worden should object. Judge Huguelets
implication appeared to be that if Worden could show that
Gattenby was giving expert testimony, Judge Huguelet would
sustain Wordens objection. But Worden never objected on this
ground during Gattenbys testimony. And he cross-examined
Gattenby on several technical portions of his testimony. By his
inaction, Worden has waived this objection.
The State did not present sufficient evidence to
convict Worden of possession of child pornography
Gattenby testified that when he examined Wordens
computer, he found images of child pornography that Worden had
accessed and viewed on the Internet. Gattenbys testimony
supported the conclusion that Worden had intentionally accessed
the child-pornography sites because his examination showed that:
(1) Worden had visited certain websites containing child
pornography more than once, and (2) it would have taken Wordens
computer several minutes to load the images, and the images
recovered had loaded completely.
But Gattenby testified that even though the images of
child pornography were found amongst the cache files on the hard
drive of Wordens computer, there was no indication that Worden
had any intent to permanently store the images his intent was
simply to view the images on his computer screen for the time he
was at a given website. Gattenby explained that when a person
uses a computer to access a site on the Internet, the computer
automatically stores the images from the web page in the browser
cache. This enables the computer to load the web page more
quickly when you revisit it, because data is accessed directly
from the computers hard drive rather than loading that data over
the Internet.9
Most people do not know that these temporary internet
files are being stored on their computer when they access the
Internet.10 A user would need a high level of computer knowledge
to locate and access these images.11 Computer forensic experts
like Gattenby often use specialized software to access the cache
files.12
In the present case, the State did not present any
evidence that Worden had this specialized knowledge that he was
aware that images were stored in his computers browser cache or
that he might have the ability to access those images at the
time of the alleged offense. As Gattenby testified, the evidence
supported the inference that Worden had viewed child pornography
on certain websites at some point in the past. But there was no
evidence that Worden knew that the images from these websites
were being stored in his computers cache or that he intended to
save them on his computer.
The States case, therefore, rested upon proof that
Worden intentionally accessed and viewed images of child
pornography over the Internet. But we conclude that AS
11.61.127, the Alaska Statute prohibiting the knowing possession
of child pornography, does not criminalize merely viewing images
of child pornography on a computer. The statute prohibits the
possession of material that visually or aurally depicts conduct
[constituting child pornography].13 Another section of the
statute provides that [e]ach film, audio, video, electronic, or
electromagnetic recording, photograph, negative, slide, book,
newspaper, magazine, or other material depicting child
pornography that is knowingly possessed by the defendant
constitutes a separate crime.14
It is questionable whether the act of possessing
material encompasses viewing an image on a computer screen. If
Worden had gone to a movie depicting child pornography, it could
not be said that he possessed the child pornography depicted in
the movie, even though it might be clear that he had
intentionally set out to view those images. Interpreting the
former version of the federal statute criminalizing the
possession of child pornography,15 which is similar to AS
11.61.127(c), federal courts have concluded that merely viewing
child pornography on a computer, as opposed to saving it on the
computer, was not prohibited by the statute.16 The Court of
Appeals for the Ninth Circuit interpreted the former federal
statute to criminalize only the knowing possession of files on a
hard drive or other computer storage device.17 It follows that
where a defendant is not aware of the existence of the cache
files, he has not committed a crime.
Some state courts have construed their statutes
prohibiting the possession of child pornography to criminalize
the use of a computer to access images of child pornography over
the Internet.18 But those states statutes are much broader than
AS 11.61.127.19
A basic rule of statutory construction is that statutes
imposing criminal liability should be construed narrowly.20
Therefore, [w]hen the scope of a criminal statute is unclear,
courts should normally construe the statute against the
government that is, construe it so as to limit the scope of
criminal liability.21 At best, AS 11.61.127 is ambiguous as to
whether it criminalizes viewing a digital image of child
pornography over the Internet. Because we must interpret the
statute narrowly, we conclude that it does not prohibit viewing
child pornography on a computer screen. Since this is the only
conduct the State proved Worden knowingly engaged in,
insufficient evidence existed to convict Worden of possession of
child pornography.
Conclusion
We AFFIRM all of Wordens convictions except his
convictions for possession of child pornography. Wordens
convictions for possession of child pornography must be REVERSED
and a judgment of acquittal must be issued. We do not decide
whether Wordens sentence is excessive because Worden must be
resentenced based on the reversal of his convictions for
possession of child pornography.
The judgment of the superior court is AFFIRMED in part
and REVERSED in part. The superior court shall resentence Worden
within 90 days and transmit a copy of the judgment to this court.
After the distribution of the amended judgment, Worden shall have
30 days to renew his sentence appeal. We retain jurisdiction.
_______________________________
1 AS 11.41.434(a)(1).
2 AS 11.41.436(a)(2), (4).
3 AS 11.61.127.
4 AS 11.41.460(a).
5 AS 11.41.455(a)(6).
6 Judge Huguelet was quoting from Patterson v. State, 747
P.2d 535, 537 (Alaska App. 1987).
7 See Gaona v. State, 630 P.2d 534, 536-37 (Alaska App.
1981).
8 Alaska R. Crim. P. 16(b)(1)(B).
9 See United States v. Romm, 455 F.3d 990, 993 n.1 (9th Cir.
2006) (Most web browsers keep copies of all the web pages that
you view ... so that the same images can be redisplayed quickly
when you go back to them. (quoting Douglas Downing et al.,
Dictionary of Computer and Internet Terms 149 (Barrons 8th ed.
2003))); see also Ty E. Howard, Dont Cache out Your Case:
Prosecuting Child Pornography Possession Laws Based on Images
Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227,
1229-30 (2004) (explaining basic operation and purpose of cache).
10 See, e.g., United States v. Kuchinski, 469 F.3d 853,
862 & n.24 (9th Cir. 2006) (noting government experts agreement
with statement that most sophisticated or unsophisticated users
dont even know [the cache files are] on their computer).
11 See Giannina Marin, Possession of Child Pornography:
Should You be Convicted When the Computer Cache does the Saving
for You?, 60 Fla. L. Rev. 1205, 1213-14 (2008) (A user needs
advanced computer skills to directly access files in the cache
while the computer is offline.).
12 See, e.g., Barton v. State, 648 S.E.2d 660, 661 (Ga.
App. 2007) (where States expert testified that no one using the
computer can retrieve information stored in the temporary
internet file folders without special forensic software).
13 AS 11.61.127(a).
14 AS 11.61.127(c).
15 Former 18 U.S.C. 2252A(a)(5)(B) (2006) (making it a
crime to knowingly possess[] any book, magazine, periodical,
film, videotape, computer disk, or any other material that
contains an image of child pornography that has been ...
transported in interstate or foreign commerce by any means,
including by computer), amended by Enhancing the Effective
Prosecution of Child Pornography Act of 2007, Pub. L. No. 110-
358, Title II 203(b), 122 Stat. 4001, 4003-04 (2008) (inserting
or knowingly accesses with intent to view into the operative
language of 18 U.S.C. 2252A(a)(5)(B)).
16 See, e.g., United States v. Stulock, 308 F.3d 922, 925
(8th Cir. 2002) (noting with approval the district courts holding
that one cannot be guilty of possession for simply having viewed
an image on a web site, thereby causing the image to be
automatically stored in the browsers cache, without having
purposely saved or downloaded the image).
17 Kuchinski, 469 F.3d at 863 ([W]here a defendant lacks
knowledge about the cache files, and concomitantly lacks access
to and control over those files, it is not proper to charge him
with possession and control of the child pornography images
located in those files, without some other indication of dominion
and control over the images.); Romm, 455 F.3d at 1000 ([T]o
posses the images in the cache, the defendant must, at a minimum,
know that the unlawful images are stored on a disk or other
tangible material in his possession.).
18 See, e.g., Ward v. State, 994 So. 2d 293, 301-02 (Ala.
Crim. App. 2007); Tecklenberg v. Superior Court, 87 Cal. Rptr. 3d
460, 472-73 (Cal. App. 2009); Commonwealth v. Diodoro, 932 A.2d
172, 174-75 (Pa. Super. 2007), cert. granted, 939 A.2d 290 (Pa.
2007).
19 See, e.g., Cal. Penal Code 311.11 (West 2008)
(criminalizing possession or control of any matter,
representation of information, data, or image, including, but not
limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware,
computer software, computer floppy disc, data storage media, CD-
ROM, or computer-generated equipment or any other computer-
generated image that contains or incorporates in any manner, any
film or filmstrip, that depicts minors engaging in or simulating
sexual conduct).
20 State v. ABC Towing, 954 P.2d 575, 579 (Alaska App.
1998).
21 Id.
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