Anthony W. Browning v. State of Indiana

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERT D. KING, JR. GREGORY F. ZOELLER
The Law Office of Robert D. King. Jr., P.C. Attorney General of Indiana
Indianapolis, Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
FILED
Jul 17 2012, 9:03 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
ANTHONY W. BROWNING, )
)
Appellant-Respondent, )
)
vs. ) No. 49A05-1110-CR-540
)
STATE OF INDIANA, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Stanley Kroh, Commissioner
Cause No. 49G04-1012-FC-091938
July 17, 2012
OPINION - FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
After a jury trial, Anthony Browning was found guilty and convicted of five
counts of child exploitation, all Class C felonies. Browning raises one issue for our
review: whether sufficient evidence supports his convictions. Concluding the evidence is
sufficient, we affirm.
Facts and Procedural History
In June 2010, Detective Darin Odier of the Indianapolis Metropolitan Police
Department, who focuses on child pornography investigations, conducted an internet
investigation in search of individuals possessing and sharing child pornography. By
using a file-sharing program, Detective Odier finds suspicious files shared by others and
then locates the computer sharing the files. To find the computer from which particular
files were shared from, Detective Odier first determines the computer’s Internet Protocol
(“IP”) address, which, at the very least, can locate the computer within a geographic area.
To find the exact computer, Detective Odier traces the Global Unique Identifier
(“GUID”), a thirty-two character identifier that functions as a computer fingerprint.
Finally, Detective Odier is able to trace the files based on each file’s Secure Hash
Algorithm (“SHA1”) value, which is a fixed-length identifier associated with one specific
file or image.
On this particular occasion, he identified a computer sharing 1,638 files through
LimeWire, a file-sharing program, forty-two of which he deemed suspicious. Detective
Odier downloaded some of these files. Four files contained photographs of the exposed
genitalia of young girls, and one file contained a video of a young girl engaged in sexual
intercourse. The filenames of the first two pictures included references to nine-year-old
2
girls, the third referenced an eight-year-old “preteen girl” being raped and included the
word “porn,” the fourth included references to a twelve-year-old girl and to child
pornography, and the video’s filename referenced pedophilia. State’s Exhibits 3 through
7.
Detective Odier identified the computer as belonging to Browning based on the IP
address and GUID. Detective Odier and other officers searched Browning’s home
pursuant to a search warrant and obtained his laptop computer. The GUID on
Browning’s laptop matched the GUID connected to the suspicious files Detective Odier
found during his investigation. Examining the laptop, officers found the same files on
Browning’s computer.
Police officers then took a statement from Browning, in which he stated he used
LimeWire to download and share files, including pornography. He acknowledged that
using a file-sharing program and having his own downloaded material stored in a shared
folder would enable others to access and download the files, and although he stated he
would delete child pornography whenever he downloaded it, he stated that if any child
pornography was still on the computer it would be in his shared folder.1
Browning was charged with five counts of child exploitation, all Class C felonies,
and five counts of possession of child pornography. The State thereafter moved to
dismiss the possession charges, and the trial court granted the State’s motion. A jury
found Browning guilty of all five counts of child exploitation, and the trial court entered a
judgment of conviction. Browning now appeals. Additional facts will be supplied as
appropriate.
1
Browning’s statement was recorded, admitted as evidence, and published to the jury.
3
Discussion and Decision
I. Standard of Review
Our standard of reviewing claims of sufficiency of the evidence is
well settled. When reviewing the sufficiency of the evidence, we consider
only the probative evidence and reasonable inferences supporting the
verdict. We do not reweigh the evidence or assess witness credibility. We
consider conflicting evidence most favorably to the trial court’s ruling. We
will affirm the conviction unless no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. It is not
necessary that the evidence overcome every reasonable hypothesis of
innocence. The evidence is sufficient if an inference may reasonably be
drawn from it to support the verdict. A conviction may be based upon
circumstantial evidence alone.
Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010) (citations omitted), trans.
denied.
II. Sufficiency of the Evidence
Indiana Code section 35-42-4-4(b) provides:
(b) A person who knowingly or intentionally:
***
(2) disseminates, exhibits to another person, offers to disseminate or exhibit
to another person, or sends or brings into Indiana for dissemination or
exhibition matter that depicts or describes sexual conduct by a child under
eighteen (18) years of age; . . .
***
commits child exploitation, a Class C felony.
Browning argues the State presented insufficient evidence that he knowingly
disseminated child pornography. At most, he argues, the evidence supports a charge of
possession of child pornography, which he was originally charged with before the State
dismissed such charges. To disseminate for the purposes of the statute means “to transfer
possession for free or for a consideration.” Ind. Code § 35-42-4-4(a)(1). A person
4
knowingly engages in conduct when he is aware of a high probability that he is doing so.
Gale v. State, 882 N.E.2d 808, 816 (Ind. Ct. App. 2008).
Detective Odier testified at trial and explained file-sharing programs such as
LimeWire:
[T]he whole purpose of the file sharing program is in its name; you share
files with other people. You can access files from other people on
LimeWire and they can access what you determine you want to have
shared. And part of the setup of LimeWire is determining . . . what folder
you want your files to go into that you’re going to share with the world . . . .
You specify a folder that has files in it that you will share with other people
using this program.
Transcript at 59-60.
Browning’s statement to police officers reveals he knew his files on LimeWire
were capable of being downloaded by others using the program. He acknowledged
downloading child pornography in the past on at least one occasion, but he claimed he
would delete such files rather than keep them on his computer. Nevertheless, he
downloaded the files, they were on his computer when police officers retrieved it, and he
knew files on his computer could be shared. Even if Browning did not open and view the
files once they were downloaded, their filenames included several references indicating
their contents were child pornography. Further, because he kept them in a folder to share
with others, he should have known there was a high probability others would download
the files. And Detective Odier did in fact download the files. The evidence sufficiently
demonstrates Browning knowingly disseminated child pornography.
Conclusion
Sufficient evidence exists to support Browning’s convictions for child
exploitation. We therefore affirm.
5
Affirmed.
BAILEY, J., and MATHIAS, J., concur.
6