State v. Mucia

Decisions of the Nebraska Court of Appeals
STATE v. MUCIA 821
Cite as 22 Neb. App. 821State of Nebraska, appellee, v.
Gregory M. Mucia, appellant.
___ N.W.2d ___
Filed March 31, 2015. No. A-14-070.
1. Criminal Law. Neb. Rev. Stat. § 28-813.01 (Cum. Supp. 2014) provides that
it shall be unlawful for a person to knowingly possess any visual depiction of
sexually explicit conduct which has a child as one of its participants or por-
trayed observers.
2. Criminal Law: Evidence: Appeal and Error. In reviewing a sufficiency of the
evidence claim, whether the evidence is direct, circumstantial, or a combination
thereof, the standard is the same: An appellate court does not resolve conflicts in
the evidence, pass on the credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact.
3. ____: ____: ____. The relevant question for an appellate court reviewing a suf-
ficiency of the evidence claim is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
4. Convictions: Evidence: Appeal and Error. A conviction will be affirmed, in
the absence of prejudicial error, if the evidence admitted at trial, viewed and
construed most favorably to the State, is sufficient to support the conviction.
5. Criminal Law: Statutes: Legislature: Intent: Appeal and Error. On appeal,
appellate courts give penal statutes a sensible construction, considering the
Legislature’s objective and the evils and mischiefs it sought to remedy.
6. Criminal Law: Statutes: Words and Phrases: Appeal and Error. Absent a
statutory indication to the contrary, an appellate court gives words in a statute
their ordinary meaning; but an appellate court strictly construes penal statutes and
does not supply missing words or sentences to make clear that which is indefinite
or not there.
7. Criminal Law: Statutes. Ambiguities in a penal statute are resolved in the
defendant’s favor.
8. Criminal Law: Intent. Knowingly possessing child pornography, as prohibited
by Neb. Rev. Stat. § 28-813.01 (Cum. Supp. 2014), requires a specific intention
to possess child pornography.
9. Criminal Law: Trial: Judges. A trial judge sitting without a jury is not required
to articulate findings of fact or conclusions of law in criminal cases.
10. Criminal Law: Trial: Judges: Presumptions. In a jury-waived criminal trial,
the trial judge is presumed to be familiar with and to have applied the proper
rules of law, unless it clearly appears otherwise.
11. Convictions: Evidence: Appeal and Error. A conviction will be affirmed if the
properly admitted evidence, viewed and construed most favorably to the State, is
sufficient to support the conviction.
12. ____: ____: ____. When reviewing a criminal conviction for sufficiency of the
evidence to sustain the conviction, the relevant question for an appellate court is
Decisions of the Nebraska Court of Appeals
822 22 NEBRASKA APPELLATE REPORTS
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
Appeal from the District Court for Lancaster County: Karen
B. Flowers, Judge. Affirmed.
Sean J. Brennan for appellant.
Jon Bruning, Attorney General, and Melissa R. Vincent for
appellee.
Irwin, Inbody, and Pirtle, Judges.
Irwin, Judge.
I. INTRODUCTION
Gregory M. Mucia appeals his conviction for possession
of child pornography. On appeal, Mucia asserts that the State
failed to adduce sufficient evidence to show that he knowingly
possessed the child pornography and challenges the court’s
admission of four video files into evidence. We find no merit
to Mucia’s assertions on appeal, and we affirm.
II. BACKGROUND
Mucia was charged by information with violating Neb.
Rev. Stat. § 28-813.01 (Cum. Supp. 2014), which makes it
“unlawful for a person to knowingly possess any visual depic-
tion” of child pornography. The charge was based on the iden-
tification of child pornography files on Mucia’s computer, dis-
covered by a Lincoln Police Department investigator, Corey
Weinmaster.
At trial, Mucia did not dispute that evidence of child por-
nography was found on two of his computers. His defense was
that he had not knowingly possessed child pornography; that
he had not intended to access child pornography; and that if he
located child pornography while searching for adult pornogra-
phy, he deleted it. Mucia argued at trial that he had not know-
ingly possessed child pornography, because to do so would
require him to have done so in a way that was not accidental
or involuntary.
Decisions of the Nebraska Court of Appeals
STATE v. MUCIA 823
Cite as 22 Neb. App. 821Weinmaster testified at trial that he investigates child por-
nography cases for the Lincoln Police Department, including
conducting forensic examinations of computers. He testified
that he uses a software program that, through the Internet,
searches “IP” addresses of computers using file-sharing soft-
ware and locates files that have previously been identified
as potentially depicting child pornography. He testified that
when the program identifies a file, the file is, at that time,
actually on the hard drive of the identified computer and
available for sharing through a file-sharing software program.
He testified that when the software program identifies such
a file, the file-sharing program being used by the identi-
fied computer also has a unique identification that can also
be tracked.
According to evidence adduced at trial, Weinmaster’s inves-
tigation was based on identifying persons using peer-to-peer
(P2P) software, wherein users install publicly available soft-
ware that facilitates the trading of digital files. Through such
programs, users are able to search for digital files available
on other computers and are able to select specific files to be
downloaded to the user’s computer. The P2P software uses an
algorithm to create a “hash” value, which is a digital signature
that allows an investigator to determine “with a precision that
exceeds 99.9999 percent certainty” that two files are identical.
The hash value of files identified as being available for shar-
ing through P2P software can then be compared with files in
a database of known child pornography to determine whether
files available for sharing are child pornography.
In October 2011, Weinmaster ran the software program
“and identified an IP address that had listed 10 files available
for sharing” that had hash values and titles consistent with
files in a law enforcement database of known child pornogra-
phy files. Weinmaster then completed an affidavit for search
warrant. According to his affidavit, he reviewed the informa-
tion associated with four of the hash values and identified
files named “r@ygold_boyandgirl 11 yo FUCK!3.26(PTHC
KIDSEX}.mpg,” “Best Vicky BJ & Handjob with sound
(r@ygold pedo reelkiddymov underage illegal lolita daugh-
ter incest xxx ora.mpg,” “! NEW ! (pthc) Veronika Nuevo 2
Decisions of the Nebraska Court of Appeals
824 22 NEBRASKA APPELLATE REPORTS
Nenas_all.mpg,” and “(((KINGPASS))) (pthc) (dark studio)
Dark Robbery.mpg.”
Weinmaster reviewed the files in the law enforcement data-
base that had the unique hash values identified with the four
files. Each was a video file depicting children engaged in
sexual conduct. One video involved a prepubescent female and
a prepubescent male and depicted masturbation and sexual pen-
etration; Weinmaster estimated that the children were approxi-
mately 9 to 11 years of age. One video involved a prepubescent
female, approximately 9 to 11 years of age, performing oral
sex on an adult male. One video involved two prepubescent
females, approximately 7 to 9 years of age, and depicted pen-
etration of one’s vagina with a foreign object, as well as a
female approximately 10 to 11 years of age performing oral sex
on an adult male. One video involved three females, approxi-
mately 12 to 14 years of age, exposing their breasts and vagi-
nas and rubbing their vaginas.
Copies of these four videos were offered and received, over
objection, at trial. Weinmaster testified that his software pro-
gram indicated that the video files had been present on Mucia’s
computers, but that they were no longer present on the comput-
ers after they were seized and forensically examined.
Through identification of the IP address associated with
the identified files, Weinmaster was able to identify that the
Internet account holder was Mucia’s brother. When executing
a search warrant, Weinmaster seized two computers, both from
Mucia’s room at the residence. Weinmaster then ran forensic
examinations on both computers.
Weinmaster testified that he found evidence of a variety of
files, both in and out of the “recycle bin,” on one of the com-
puters that merited further investigation. He testified that four
of the files that were not in the recycle bin were video files
that had been downloaded through a P2P software program
and placed in a specific user account that had to be specified
as the download location. He testified that he viewed the four
videos and that they constituted child pornography. Portions of
the four videos were played for the court. As the portions were
played for the court, there was no description or indication of
what was being seen by the court.
Decisions of the Nebraska Court of Appeals
STATE v. MUCIA 825
Cite as 22 Neb. App. 821In addition to the 4 files found out of the computer’s recycle
bin, Weinmaster located 14 other files in the recycle bin. He
testified that files in the recycle bin were still accessible and
can be restored and that the recycle bin can be used as “another
storage container” on the computer.
Weinmaster testified that the location of files located on
the computer required a series of steps to download the
P2P software program, to install it, and to set it up and
specify the download location to be somewhere other than
a default location. He also testified that other P2P software
programs on the computers included data files that tracked
activity and showed a history of files consistent with child
pornography. He also testified about Internet history located
on the computers showing files that had been accessed and
including terms consistent with child pornography, as well
as thumbnail images on the computers that fit the criteria for
child pornography.
Weinmaster testified he found evidence of files being
accessed on the computers that were associated with “LS
models” (which Weinmaster testified was a term prevalent in
child pornography) and “p-t-h-c” (another term prevalent in
child pornography) and that included phrases such as “rub-
bing eight y-o to orgasm” and “PTHC, five-year-old Kate, dad,
ecstasy, hyphen, Katie . . . getting a mouthful of my cum, dot,
link.” He testified that he could tell that the files were accessed
and downloaded, but could not determine whether video files
were watched.
On cross-examination, Weinmaster testified that Mucia had
indicated that he used the P2P programs to search for pornog-
raphy, but indicated that he had not been looking for child
pornography. Weinmaster testified that Mucia indicated that
if he saw child pornography, he deleted it. He also testified
that a P2P user can conduct a batch download, highlighting
a long block of items and downloading them without reading
filenames first.
On cross-examination, Weinmaster testified that the four
files he located which had been saved on either of the comput-
ers were the four videos of which a portion was played for the
court and that everything else either was located in the recycle
Decisions of the Nebraska Court of Appeals
826 22 NEBRASKA APPELLATE REPORTS
bin or was indicated only through residual evidence of having
been accessed at some point in time. He testified that the four
videos he initially identified through hash values, leading to
the search warrant and seizure of the computers, were not on
the computers after he seized them. When asked to confirm
that he found “no evidence of them anywhere” after seizing the
computers, he acknowledged there was “[n]one.”
Mucia testified in his own defense. He acknowledged
installing and using P2P software on his computers to obtain
music, movies, and pornography. He testified that he never
intentionally obtained child pornography and never searched
for child pornography. He acknowledged that he had, on occa-
sion, obtained images or videos that he suspected were child
pornography, but he testified that when this happened, he had
deleted the files because he “didn’t want anything to do with
child pornography.” He testified that he had searched for “‘teen
porn’” in an attempt to locate pornography involving girls that
were ages 19 to 24.
Mucia testified that he had engaged in “‘batch download-
ing’” of files, during which he downloaded a large number of
files and then returned later to “see what it was.”
Mucia testified that he was unaware that there was any child
pornography on his computers.
On cross-examination, Mucia testified that downloaded files
had to be opened to be able to see their content. He acknowl-
edged seeing content in 2011 that he believed was child
pornography. He agreed that the titles of files discovered by
Weinmaster were consistent with child pornography.
On cross-examination, Mucia acknowledged that it was
“possible” that he had visited a Web site related to “Preteen
Models and Young Models” in September 2011, but testified
that he was not “aware of” it. He testified that it was possible
he had “click[ed] on a link of a link, but when — if [he] did go
there, [he] would immediately get out, but [he] wasn’t intend-
ing to go there.”
Mucia also presented evidence from another computer
forensics expert who had conducted a forensic examination
of the computers in this case. The expert testified that he was
often called upon to search for evidence of a user’s intent. He
Decisions of the Nebraska Court of Appeals
STATE v. MUCIA 827
Cite as 22 Neb. App. 821testified that in doing so, he looked for the overall context in
which data resides, including how organized any child pornog-
raphy might be, whether it is relabeled or put into subfolders
and subdirectories, and whether it is saved on external drives
or encrypted into hidden areas. He testified that in this case
he found no signs of any organization, no encryption, and no
external copies or storage.
Mucia’s expert testified that “‘teen porn’” is a common
search term for pornography that would be age appropriate for
someone Mucia’s age.
Mucia’s expert testified that his analysis of the computers
and the evidence was consistent with Mucia’s denial of hav-
ing knowingly possessed child pornography. He testified that
“searches for adult pornography were conducted, and in casting
this large net across a body of water of unknown material . . .
the unintended consequences of child pornography existed and
. . . most of it had been deleted.”
On cross-examination, Mucia’s expert acknowledged that
there was evidence of child pornography on the computers.
In fact, he testified that he located two videos consistent with
child pornography on one of the computers that Weinmaster
had not found.
After the bench trial, the court found that the State had met
its burden of proof and found Mucia guilty of knowingly pos-
sessing child pornography. The court sentenced Mucia to 3
years’ probation. This appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Mucia has assigned two errors. First, he asserts
that the State failed to adduce sufficient evidence to dem-
onstrate that he “knowingly” possessed child pornography.
Second, he asserts that the district court erred in receiving into
evidence the four videos identified by Weinmaster but not actu-
ally found on his computers.
IV. ANALYSIS
1. K nowing Possession
[1] Mucia was charged with possession of child pornogra-
phy under § 28-813.01. That statute provides that “[i]t shall be
Decisions of the Nebraska Court of Appeals
828 22 NEBRASKA APPELLATE REPORTS
unlawful for a person to knowingly possess any visual depic-
tion of sexually explicit conduct . . . which has a child . . .
as one of its participants or portrayed observers.” (Emphasis
supplied.)
On appeal, as at trial, Mucia does not argue that there was
insufficient evidence to establish that he had possessed child
pornography or that child pornography was found on his
computers. Rather, he focuses his argument on asserting that
the State failed to sufficiently demonstrate that his possession
was knowing. He argues that “[t]he State failed to present
evidence to refute Mucia’s and [his expert’s] testimony that
Mucia received the child pornography unintentionally while
conducting batch downloads of legal adult pornography and
that he was not in knowing possession of it.” Brief for appel-
lant at 7.
[2-4] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact. State v. Hansen, 289 Neb. 478, 855 N.W.2d 777(2014). See, also, State v. Schuller, 287 Neb. 500, 843 N.W.2d
626 (2014). The relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. Id. A conviction will be affirmed, in the absence of
prejudicial error, if the evidence admitted at trial, viewed and
construed most favorably to the State, is sufficient to support
the conviction. State v. Collins, 281 Neb. 927, 799 N.W.2d
693 (2011).
[5-7] On appeal, appellate courts give penal statutes a
sensible construction, considering the Legislature’s objec-
tive and the evils and mischiefs it sought to remedy. See
State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Absent a statutory indication to the contrary, we give words
in a statute their ordinary meaning; but we strictly construe
penal statutes and do not supply missing words or sentences
to make clear that which is indefinite or not there. See id.Decisions of the Nebraska Court of Appeals
STATE v. MUCIA 829
Cite as 22 Neb. App. 821Ambiguities in a penal statute are resolved in the defendant’s
favor. Id.We have been unable to locate any prior cases in Nebraska
where either the Nebraska Supreme Court or this court have
had occasion to make a determination about whether the term
“knowingly” as used in § 28-813.01 requires a showing that
the defendant had the specific intention of possessing child
pornography or merely the general intention of possessing
material that is, in fact, child pornography, and the parties have
cited us to no authority on point. Nonetheless, we find that
the Nebraska Supreme Court’s discussion in State v. Schuller,
supra, sheds some light on the subject.
In State v. Schuller, supra, a defendant was convicted
in a bench trial of possession of child pornography under
§ 28-813.01. The Supreme Court addressed whether the term
“possess” in § 28-813.01 included constructive possession, as
well as actual possession, and concluded that constructive pos-
session was included in the statute’s prohibition. The evidence
in that case did not create an appealable issue concerning
whether the defendant had knowingly possessed the child por-
nography at issue, as the uncontested evidence demonstrated
that the defendant had searched the Internet for child pornog-
raphy, had downloaded child pornography, had watched child
pornography, and had then deleted the child pornography; the
defendant had engaged in this behavior several times. Thus,
the Supreme Court noted that the evidence was sufficient to
support finding that the defendant had knowingly possessed
child pornography.
The Supreme Court addressed the defendant’s argument
that he had not possessed the child pornography files at issue
because he had merely viewed them. In rejecting this argu-
ment, the Supreme Court distinguished the factual context
of the case from a hypothetical scenario in which an office
worker intentionally seeks out child pornography and views
and manipulates child pornography images, and then an inno-
cent coworker who happens to go into the office sees the
images on the computer screen. The Supreme Court noted that
in the hypothetical scenario, the innocent coworker would not
have affirmatively sought out the images and had not had the
Decisions of the Nebraska Court of Appeals
830 22 NEBRASKA APPELLATE REPORTS
ability to control or manipulate them, and that therefore, the
coworker would not have knowingly possessed them.
The Supreme Court concluded that the defendant in State
v. Schuller, 287 Neb. 500, 843 N.W.2d 626 (2014), had not
merely viewed the child pornography files at issue. “Instead,
he repeatedly searched for, downloaded, viewed, and then
deleted child pornography. He did this intentionally and with
the specific purpose to do so, and he used file-sharing software
to achieve his ends. This constitutes knowing possession—not
mere viewing.” Id. at 514, 843 N.W.2d at 636.
The Supreme Court also noted that if a person legally
browses adult pornography and mistakenly clicks on a link
leading him to a child pornography site, which he immediately
closes, the person would not be guilty of knowingly possessing
child pornography. State v. Schuller, supra. The Supreme Court
noted that, even though in such a situation child pornography
would be downloaded to a computer’s “‘cache’” folder as a
temporary Internet file, the person would not have downloaded
the files knowingly or constructively possessed them. Id. at
514, 843 N.W.2d at 636.
[8] The Supreme Court’s discussion in State v. Schuller,
supra, is illustrative and suggests that knowingly possessing
child pornography, as prohibited by § 28-813.01, requires a
specific intention to possess child pornography. The Supreme
Court’s emphasis on the defendant in that case having acted
“intentionally and with the specific purpose” to locate and
view child pornography is more consistent with a specific
intent requirement than a general intent to possess files
that, unbeknownst to the defendant, turn out to be child
pornography.
We thus agree with Mucia that § 28-813.01 requires suf-
ficient proof that he had the specific intent to possess child
pornography, and not merely a general intent to download files
that, unbeknownst to him, turned out to be child pornography.
In this case, the trial court did not make any specific find-
ings about whether it was applying a specific or general intent
requirement to the term “knowingly.” After counsel made
closing arguments, the court inquired whether Mucia’s engag-
ing in batch downloads knowing that batch downloads could
Decisions of the Nebraska Court of Appeals
STATE v. MUCIA 831
Cite as 22 Neb. App. 821result in illegal content being retrieved would be sufficient to
demonstrate knowing possession, and Mucia’s counsel argued
to the court that a specific intent would be required. The court
then took the matter under advisement, and when the court
announced its verdict, the court did not make a specific finding
on the relative intent required, but it did note that it had con-
sidered the arguments of counsel and had concluded that the
State met its burden of proof. The record on appeal does not
include the written verdict of the court.
[9,10] A trial judge sitting without a jury is not required to
articulate findings of fact or conclusions of law in criminal
cases. State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992).
Further, it has long been the law in Nebraska that in a jury-
waived criminal trial, the trial judge is presumed to be famil-
iar with and to have applied the proper rules of law, unless
it clearly appears otherwise. See State v. Tucker, 278 Neb.
935, 774 N.W.2d 753 (2009); State v. Keup, 265 Neb. 96, 655
N.W.2d 25 (2003); State v. Franklin, supra; State v. Cowan,
204 Neb. 708, 285 N.W.2d 113 (1979).
[11,12] In such a case, the conviction will be affirmed if
the properly admitted evidence, viewed and construed most
favorably to the State, is sufficient to support the conviction.
See State v. Keup, supra. The relevant question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Id.Thus, the question we must resolve, in determining whether
there was sufficient evidence to support the court’s conviction
in this bench trial, is whether the evidence admitted at trial,
viewed and construed most favorably to the State, is sufficient
to support a conclusion that Mucia intentionally possessed
child pornography.
Although we acknowledge that the amount of child pornog-
raphy found on Mucia’s computers was slight, we nonethe-
less conclude that the conviction must be affirmed. Viewed
in a light most favorable to the State, the evidence adduced
at trial indicated that the four videos initially identified by
Weinmaster as being on Mucia’s computer and available for
downloading by other P2P users had been present on Mucia’s
Decisions of the Nebraska Court of Appeals
832 22 NEBRASKA APPELLATE REPORTS
computer at one point in time, even though they were no
longer present when the computers were seized. Those four
videos had file names including terms such as “11 yo FUCK!,”
“pedo,” “reelkiddymov underage illegal lolita daughter incest,”
and “pthc.” Weinmaster testified that each was a video file
depicting children engaged in sexual conduct, including pre-
pubescent females and males engaged in masturbation and
sexual penetration.
The evidence, viewed and construed most favorably to the
State, indicated that four other video files were located in a
specific user account, which had to be specified as a down-
load location and would not have automatically been created
through the P2P program’s setup, and that the location of files
found on the computers required a series of steps to download
the P2P program, install it, and set it up and specify the down-
load location.
The evidence, viewed and construed most favorably to the
State, indicated that P2P software programs on the computers
included data files and tracked activity showing a history of
files consistent with child pornography, including temporary
files and thumbnail images. The files included terms consistent
with child pornography, such as “LS models” and “p-t-h-c,”
and included phrases such as “rubbing eight y-o to orgasm”
and “PTHC, five-year-old Kate, dad, ecstasy, hyphen, Katie
. . . getting a mouthful of my cum.” The evidence indicated
that these files were accessed and downloaded.
Although the State was unable to adduce direct evidence
that Mucia intentionally sought out child pornography files
and although Mucia presented evidence that he had engaged
in batch downloads that might have inadvertently returned
child pornography files, the evidence circumstantially sup-
ports a conclusion that Mucia knowingly possessed child por-
nography. The question presented on appeal is not whether
it would have been reasonable for the finder of fact to have
reached a different conclusion, but whether any rational finder
of fact could have reached the conclusion that was reached by
the trial court. Viewed in a light most favorable to the State,
the circumstantial evidence supports a conclusion that child
pornography files had to be selected from P2P searches to be
Decisions of the Nebraska Court of Appeals
STATE v. MUCIA 833
Cite as 22 Neb. App. 821downloaded and some of the files were downloaded to a spe-
cific location that required specific steps by the user that a fact
finder could find inconsistent with Mucia’s claim of inadvert­
ence or accidental possession.
On appeal, we do not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact. State v. Hansen, 289 Neb.
478, 855 N.W.2d 777 (2014). See, also, State v. Schuller, 287
Neb. 500, 843 N.W.2d 626 (2014). The relevant question for us
is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. Id. Even though the evidence adduced in this case was
such that a rational trier of fact could have accepted Mucia’s
assertion that his possession was only inadvertent or reck-
less, it was also such that a rational trier of fact could have
concluded that it was knowing. Because we do not reweigh
the evidence or resolve such conflicts, we find the evidence
sufficient to support the conviction, and we find no merit to
Mucia’s assignment of error.
2. Admission of Videos
Mucia also asserts that the district court erred in admit-
ting into evidence four videos. The videos were the four
files initially identified by Weinmaster through the presence
of hash values consistent with child pornography and which
Weinmaster testified were not located on the computer after it
was seized and searched.
Mucia argues on appeal that the State failed to demonstrate
that the videos were true and accurate copies of any file that
had actually ever been on his computers, because the only
connection between the videos and his computers was the tes-
timony regarding hash values.
The State argues on appeal that Mucia failed to preserve any
objection to the admission of the video files, because although
he did object to their admission into evidence, he failed to
specify any grounds for the objection. See State v. Muse, 14
Neb. App. 13, 721 N.W.2d 661 (2006) (to preserve claimed
error in admission of evidence, litigant must make timely
Decisions of the Nebraska Court of Appeals
834 22 NEBRASKA APPELLATE REPORTS
objection which specifies ground of objection and may not
assert different ground on appeal).
In this case, Mucia’s objection at trial did not specify any
ground for the objection. It is not apparent from the record
that his objection was based on the reliability of hash value
evidence or based on asserting that the videos were not true
and accurate copies of videos that have ever appeared on
the computer.
Indeed, as noted above, Mucia’s defense at trial—specifi-
cally indicated to the trial court before any testimony was
received—was unrelated to any challenge to whether child
pornography or any particular child pornography had been on
Mucia’s computer or possessed by him. Mucia’s defense was
entirely premised on challenging whether his possession was
“knowing.” To the extent that Mucia did not challenge the
State’s assertion that he actually possessed child pornography,
it is hard to discern how admission of these video files could
have prejudiced Mucia. Moreover, there was other evidence
presenting graphic depictions of the videos that was admitted
without objection; and there was substantial evidence of other
child pornography on Mucia’s computers that was admitted
without objection.
We find no merit to Mucia’s assertion that the court erred
in admitting the video files. Mucia did not specify a basis for
objecting to the files’ admission and thus waived the right
to assert the basis for objecting which was being asserted on
appeal. Moreover, any error in admission would have been
harmless in the context of this prosecution.
V. CONCLUSION
We find no merit to Mucia’s assignments of error, and we
affirm.
Affirmed.