Brian L. Port v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 30 2020, 9:22 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce W. Graham Curtis T. Hill, Jr.
Graham Law Firm P.C. Attorney General of Indiana
Lafayette, Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian L. Port, September 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-854
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1903-F5-31
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-854 | September 30, 2020 Page 1 of 13
Case Summary
[1] Brian L. Port appeals his conviction for level 5 felony possession of child
pornography depicting or describing a child under the age of twelve. He argues
that the trial court abused its discretion regarding discovery by not granting his
request for the State to produce a copy of a digital file with the child
pornography redacted. He also argues that there was insufficient evidence to
establish that any of the children were under the age of twelve. We affirm.
Facts and Procedural History
[2] At all times relevant to this appeal, Port owned a Google Account with the
email address BrianPort40@gmail.com. The account included several Google
services, such as Gmail, Google Cloud, and Google Photos. The Google
Photos application had a feature that automatically uploaded images from
authorized devices into an “Instant Upload” folder. Tr. Vol. 3 at 65. On April
2, 2018, child pornographic images were automatically uploaded to Port’s
Instant Upload folder. Id. at 66-67, 226. On April 9, 2018, additional child
pornographic images were automatically uploaded into Port’s Instant Upload
folder. That same day, a new “Untitled Album” was created in Port’s Google
Photo account, and four images were moved into that folder. Id. at 26-28.
Google identified two of the images uploaded to Port’s Google Photo account
as child pornography based on information Google received from the National
Center for Missing and Exploited Children (NCMEC). Google immediately
terminated Port’s account.
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[3] On July 11, 2018, NCMEC informed the Tippecanoe County Prosecutor’s
Office that Google had identified two child pornographic images in Port’s
account. The information provided by NCMEC included Port’s name, email
address, internet protocol (IP) address, phone number, and two images of
suspected child pornography. Tr. Vol. 2 at 231-33. The office’s director of
forensic investigation Sean Leshney requested additional records from Google
that Google provided on an encrypted USB drive. Id. at 245. Leshney
decrypted the Google USB drive using a password emailed to him from
Google. The Google USB drive contained Google’s certificate of authenticity,
“hash” records of the uploaded pictures, 1 and records from Port’s account,
including “[e]mails, contacts, subscriber information, Google Drive, Google
Photos, search history, location history, [and] device information.” Id. at 246-
48. The Google USB drive also contained six child pornographic images that
were uploaded to Port’s account on April 2 and 9, 2018. Tr. Vol. 3 at 16, 18.
Leshney sent those six images to NCMEC, and NCMEC verified that four of
the six images were known victims from prior investigations. Id. at 56.
[4] Leshney ultimately discovered Port’s home address and that Port’s phone
number was associated with a Verizon cellphone. Leshney obtained a search
1
Leshney explained,
Hashing a file is the way [that] we uniquely identify a file. It could be any type of file, from an
image, a Word document, a zip file, every bit of that file, the contents of the file was run
through a mathematical algorithm and it spits out a 32 value. It is extremely unique. [There
are] different levels of hashing, and so if you change one pixel, one byte within that file, it
completely changes the hash of that file.
Tr. Vol. 2 at 247.
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warrant to search Port’s home. During the search, police officers found in
Port’s outdoor grill some pieces of the Samsung cellphone that Verizon records
showed that Port had been using when the child pornography was uploaded
into his Google Photos account. The phone had been disassembled and was
missing its motherboard, memory chip, and screen. Id. at 170.
[5] On March 13, 2019, the State charged Port with two counts of possession of
child pornography, one as a level 5 felony and the other as a level 6 felony. The
State later filed an information alleging that Port is a habitual offender.
[6] Port filed a request for production of electronically stored information, seeking
an order that the State provide him, on a flash drive, a copy of the contents of
the Google USB drive with the pornographic images redacted. Appellant’s
App. Vol. 2 at 66-67. The State filed a motion to quash, asserting that the State
had already permitted Port’s counsel to inspect the contents of the Google USB
drive on two occasions and had provided him a disc with requested content
from the Google USB drive, which included “album photo data, account
information, location history, search terms (in both text and Word format),
instant upload data, untitled photo data, and Google’s Certificate of
Authenticity with hash value information.” Id. at 68. The State informed the
trial court that it had not provided some information, including “the zip files,
which contain child pornography, [Port’s] emails, and [Port’s] photos/Google
albums, which contain child pornography and other images.” Id. at 69.
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[7] The trial court held a hearing on the matter, at which Port testified that he
wanted to look at the images on the Google USB drive to get some idea of
where the child pornography was and determine whether there were things
uploaded to his account that somebody else had uploaded. Tr. Vol. 2 at 69.
After a discussion with the trial court and the prosecutor, Port’s counsel agreed
that it “would work” if Port, Port’s counsel, and Port’s expert were allowed to
view the Google USB drive at the jail with the prosecutor or Leshney present.
Id. at 78. The trial court issued an order denying the State’s motion to quash
and ordering the State to provide an opportunity for Port, his counsel, and his
expert to “inspect, review, or examine” the Google USB drive, including files
that may contain child pornography, at the Tippecanoe County Jail with a
representative of the prosecutor’s office present. Id. at 79; Appellant’s App.
Vol. 2 at 76-77. The trial court found that the order was justified to give Port
“an opportunity to prepare his defense and understand when or how the
materials may have been downloaded into his account.” Tr. Vol. 2 at 79.
[8] At Port’s jury trial, an unencrypted version of the contents of the Google USB
drive created by Leshney was admitted at Port’s trial. Ex. Vol. 5 at 32 (State’s
Ex. 3A). In addition, six child pornographic images that were uploaded to
Port’s Google account on April 2 and 9, 2018, were admitted and published to
the jury. Id. at 75 (State’s Ex. 3J). A detective specializing in crimes against
children testified that he believed that the children in the pictures were “ten or
under” based on their “development …, facial features, [and] … smaller
stature.” Tr. Vol. 3 at 118. During closing argument, the prosecutor argued to
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the jurors to use their “common sense” and their “life experiences in dealing
with children” to determine whether the children were under the age of twelve.
Tr. Vol. 4 at 57. The prosecutor asked the jurors to consider the children’s size,
physical development, and facial features, including the “baby fat in their
faces.” Id.
[9] The jury found Port guilty of both counts of child pornography. At a bench
trial, Port was found to be a habitual offender. The trial court concluded that
the level 6 felony was a lesser included offense of the level 5 felony and entered
judgment of conviction for the latter. The trial court then sentenced Port to five
years, plus a three-year enhancement for being a habitual offender, for a total of
eight years, with three years suspended to probation. This appeal ensued.
Discussion and Decision
Section 1 – Port invited any error in the trial court’s discovery
ruling.
[10] Port first contends that the trial court “erred in refusing to order the State to
provide copies of all files in reliance on [Indiana Code Section] 35-36-10-4.”
Appellant’s Br. at 13. We think the issue is appropriately framed as whether the
trial court abused its discretion in granting Port, his counsel, and his expert the
opportunity to examine the contents of the Google USB drive at the
Tippecanoe County Jail with a representative of the prosecutor’s office present.
We observe that trial courts have broad discretion in ruling on issues of
discovery. Beville v. State, 71 N.E.3d 13, 18 (Ind. 2017). “On review, [an
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appellate court] presume[s] that the trial court’s decision is correct, and the
party challenging the decision has the burden of persuading us that the trial
court abused its discretion.” State v. Pelley, 828 N.E.2d 915, 923 (Ind. 2005).
[11] Discovery of child pornography in criminal proceedings is governed by Indiana
Code Chapter 35-36-10. “In any criminal proceeding, material constituting
child pornography must remain in the custody of the state or the court.” Ind.
Code § 35-36-10-3. In addition,
A court shall deny any request by the defendant in a criminal
proceeding to copy, photograph, duplicate, or otherwise
reproduce any material that constitutes child pornography if the
state provides ample opportunity for inspection, viewing, and
examination of the material by:
(1) the defendant;
(2) the defendant’s attorney; and
(3) any individual the defendant seeks to qualify as an
expert; at a state or local court or law enforcement facility
as provided in section 5 of this chapter.
Ind. Code § 35-36-10-4 (emphasis added). And finally, “A court may permit a
defendant to inspect, view, and examine material that constitutes child
pornography at a state or local court or law enforcement facility if the defendant
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demonstrates that inspecting, viewing, and examining the material is necessary
to the defendant’s defense.” Ind. Code § 35-36-10-5(a). 2
[12] Port seems to be arguing that (1) he was denied an “ample opportunity to
inspect” the Google USB drive because the trial court permitted a representative
of the prosecutor’s office to be present at the jail during Port’s inspection and (2)
he was denied his constitutional right to present a defense because he was not
provided with a copy of the contents of the Google USB drive with the child
pornographic images redacted. We begin by noting that at the hearing on the
matter, Port specifically agreed that allowing a representative from the
prosecutor’s office to be present during Port’s examination of the Google USB
drive would satisfy his needs:
THE COURT: Would this all be shortcutted [sic] if I allow the
Defendant to view it directly and have [the prosecutor] or Mr.
Leshney go down to the jail with [defense counsel] and view it all
under a protective order as provided in [Section 35-36-10-5]?
[Defense Counsel], does that get you … access to the same
information you’re looking for without having to redact it?
[DEFENSE COUNSEL]: That would satisfy that, but there’s
another aspect to this. … [S]ince [Mr. Leshney] can’t be my
computer expert, we may have our own computer expert …
2
If a court permits a defendant to inspect, view, and examine material that constitutes child pornography,
the court must issue a protective order with respect to the material in compliance with Indiana Code Section
35-36-10-5(b), which the trial court did in this case.
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[who] maybe can go … up to [the prosecutor’s] office and inspect
it up there at a later date.
[PROSECUTOR]: And we don’t have a problem with their
experts coming up to our office with [defense counsel.]
….
[DEFENSE COUNSEL]: …. [O]kay, yes. Then what you’re
proposing, Judge, would work. Go down to the jail and allow
[Port] to see it, and then if our expert needs to 1ook at it, we’ll go
up to the Prosecutor’s office[.]”
THE COURT: Again? Twice? I think we should do it just once.
If you have an expert, have the expert, the Defendant, everybody
available one time to take a 1ook at it all at the same time. I
mean, how many bites of the apple do you want at this thing is
what I’m saying.
Tr. Vol. 2 at 77-78. Defense counsel indicated that he was not sure whether an
expert could “sit down there and just in real-time figure all this stuff out or if he
needs to work with it,” but they would try. Id. at 78-79.
[13] Given that Port’s counsel affirmatively informed the trial court that Port’s needs
would be satisfied by making the Google USB drive available to him for
examination with the prosecutor present, and that they would try to bring their
expert to the jail for examination of the Google USB drive at the same time, we
conclude that any alleged error arising from the procedure ordered by the trial
court is invited. The invited error doctrine, which is based on the legal principle
of estoppel, “forbids a party from taking ‘advantage of an error that she
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commits, invites, or which is the natural consequence of her own neglect or
misconduct.’” Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018) (quoting Wright
v. State, 828 N.E.2d 904, 907 (Ind. 2005)). A “passive lack of objection,”
standing alone, does not constitute invited error. Batchelor v. State, 119 N.E.3d
550, 558 (Ind. 2019) (quoting Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014),
cert. denied (2015)). Rather, “to establish invited error, there must be some
evidence that the error resulted from the appellant’s affirmative actions as part
of a deliberate, ‘well-informed’ trial strategy.” Id. (quoting Brewington, 7 N.E.3d
at 954). Here, the procedure was part of a deliberate and informed resolution of
Port’s discovery request and thus meets the standard for invited error.
[14] Even if any alleged error was not invited, Port’s argument is meritless. First, in
his argument, Port completely fails to acknowledge that when he requested
production of a copy of the Google USB drive, his counsel had already had two
opportunities to fully examine it. Further, while Port concedes that the State
provided a disc with some of the information from the Google USB drive to his
counsel, Port avoids disclosing what that information was. In fact, the disc
contained information requested by defense counsel after counsel had examined
the Google USB drive twice. This information included “album photo data,
account information, location history, search terms (in both text and Word
format), instant upload data, untitled photo data, and Google’s Certificate of
Authenticity with hash value information.” Appellant’s App. Vol. 2 at 68.
After all this discovery, the trial court responded to Port’s discovery request by
ordering the State to provide Port, his counsel, and his expert an opportunity to
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examine the contents of the Google USB drive. Port does not claim that his
expert was unable to come to the jail to examine the Google USB drive or that
his expert examined the Google USB drive at the jail and was unable to provide
the assistance that Port needed to present a defense. Accordingly, Port cannot
carry his burden to persuade us that the trial court abused its discretion
regarding discovery.
Section 2 – The evidence is sufficient to support Port’s
conviction.
[15] Port also challenges the sufficiency of the evidence supporting his conviction.
In reviewing a claim of insufficient evidence, we do not reweigh the evidence or
judge the credibility of witnesses, and we consider only the evidence that
supports the judgment and the reasonable inferences arising therefrom. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). It is “not necessary that the evidence
‘overcome every reasonable hypothesis of innocence.’” Drane v. State, 867
N.E.2d 144, 147 (Ind. 2007) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind.
1995)). “We will affirm if there is substantial evidence of probative value such
that a reasonable trier of fact could have concluded the defendant was guilty
beyond a reasonable doubt.” Bailey, 907 N.E.2d at 1005.
[16] To convict Port of level 5 felony possession of child pornography, the State was
required to prove beyond a reasonable doubt that Port
knowingly or intentionally possesse[d] or accesse[d] with intent
to view … a picture, a photograph, a motion picture, a videotape,
a digitized image, or a pictorial representation … that depicts or
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describes sexual conduct by a child … who [Port knew] is less
than eighteen (18) years of age or who appears to be less than
eighteen (18) years of age, and that lacks serious literary, artistic,
political, or scientific value” and the “the child whose sexual
conduct is depicted … is less than twelve (12) years of age[.]
Ind. Code § 35-42-4-4(d), -(e)(1)(F). Port’s sole challenge is to the State’s proof
that any of the children were less than twelve years old.
[17] In Bone v. State, 771 N.E.2d 710 (Ind. Ct. App. 2002), the defendant challenged
his conviction for possession of child pornography depicting or describing
sexual conduct by a child who is less than sixteen years old or who appears to
be less than sixteen years old. He argued that the State failed to produce
sufficient evidence of the victims’ ages. Id. at 717. Another panel of this Court
concluded,
Herein, an assessment as to the girl’s age is not only a matter of
common sense but also the trier of fact may take into account her
overall appearance, including the developmental stage of the girl
based upon her breasts, body hair, and other anatomical features.
While it is possible that not all the girls were children under the
age of sixteen, we cannot say that no reasonable [factfinder]
could find beyond a reasonable doubt that at least one was of a
child under the age of sixteen. Therefore, we find sufficient
evidence to support Bone’s conviction.
Id.
[18] At Port’s trial, the images alleged to be child pornography depicting or
describing a child under the age of twelve were admitted and published to the
jury. The State argued to the jurors that they were able to use their common
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sense to determine whether the children were less than twelve years old by
considering the children’s size, physical development, and facial features.
Having reviewed the record before us, we cannot say that no reasonable
factfinder could find beyond a reasonable doubt that at least one, if not all, of
the children were under the age of twelve. 3 Accordingly, we affirm Port’s
conviction for level 5 felony possession of child pornography.
[19] Affirmed.
Robb, J., and Brown, J., concur.
3
We acknowledge that the applicable statute in Bone provided that a person committed that offense where
the child was less than or appeared to be less than the age of sixteen. Here, the statute differs in that it
requires that the child depicted or described be less than twelve. Given the appearance of the children as
shown in the images admitted and published to the jury and included in the record on appeal, we do not
believe there is any appreciable possibility that all six children appear to be less than twelve but are actually
older.
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