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Worden v. State (5/22/2009) ap-2216

Worden v. State (5/22/2009) ap-2216

                             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
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         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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