April 9, 2010 – In the case of State v. Mercer, (2008AP1763-CR, Mar. 31. 2010), the court of appeals clarified when an individual knowingly possesses images of child pornography for the purposes of violations of Wis. Stat.   section 948.12(1m).

Benjamin W. Mercer was employed as the human resources director for the city of Fond du Lac, which installed monitoring software on its employees’ computers that collected information about employees’ key strokes and other information about what they did on their computers.

As a result of this monitoring software, the city’s IT employees began getting regular alerts about Mercer’s computer use. It suggested a pattern of Mercer surfing the Internet for possible adult pornographic Web sites and pornographic Web sites involving children.

In June 2004, one of the IT employees met with a police officer to review and recreate the content in the software logs for Mercer’s computer use. It included searches for words such as “preteens,” “preteen super models,” “preteen hardcore,” “Lolita” and “Lolidus,” on Yahoo!, Google, and MSN search engines that occurred on 50 different days since 2002. In addition, the software tracked Mercer’s clicks through to sites generated by those searches, which included websites that contained child pornography.

On October 2007, Mercer was charged with 14 counts of possession of child pornography in violation of section 948.12(1m), and the case was tried to a jury. The state’s case was based significantly on the testimony of the monitoring software’s co-founder, who provided detailed evidence about Mercer’s activities on the Internet, including repeatedly viewing images that were of child pornography. In addition, the state provided testimony that Mercer took steps to delete the cache on his computer hard drive, thereby attempting to erase any traces of where he navigated to on the Internet.

Mercer testified in his own defense, denying he was looking at the images or searching for child pornography, but admitting that he “may have” searched with terms like “Lolita” that are associated with child pornography. The jury found Mercer guilty on all 14 counts. Mercer appealed, challenging the sufficiency of the evidence and the trial court’s instruction on the meaning of “possession.”

Standard for knowing possession

The standard of review on sufficiency of the evidence for the court of appeals is to view the evidence in the light most favorable to the trier of fact’s finding. The court may overturn a verdict on grounds of insufficiency of the evidence only if the trier of fact could not possibly have drawn the appropriate inferences from the evidence adduced at trial. See Mercer ¶13.

The issue Mercer raises is one of law – the application of a statute to a particular set of facts – whether Mercer can “knowingly possess” child pornography if it was not found on his computer hard drive.

The statute states that, “Whoever possesses any undeveloped film, photographic  negative, photograph, motion picture, videotape or other recording of a child engaged in sexually explicit conduct under all of the following circumstances [is guilty of a class D felony]: (a) The person knows that he or she possesses the material.” See Id. ¶¶ 14-15.

This concept is sometimes referred to as “constructive possession,” which describes the “circumstances that are sufficient to support an inference that the person exercised control over, or intended to possess, the item in question.” See Id. ¶ 16.

While the meaning of knowing possession has been addressed by the court of appeals and other courts, in all the other cases digital images were recovered from the defendant’s hard drive. In this case, there is no forensic evidence that the images were in Mercer’s hard drive – a fact that Mercer asserts makes all the difference in his case.  The issue then for the court was whether a person can knowingly possess images of child pornography he or she views while browsing the Internet if there is no evidence that the images viewed were in the computer hard drive. See Id. ¶ 17.

The court determined that none of the previous cases have explicitly held that hard drive evidence “is the sine qua non of a knowing possession case.” The court continued by noting that some of the cases discuss possession in terms of what a user can do to control the images, including attaching them to an email, printing, or placing on a web site. See Id. ¶ 20.

The court further analyzed previous case law and determined that in several instances, courts found that evidence that showed repeated actions to seek and obtain child pornography over the Internet and manipulation and control of the images by clicking on them – in other words, the defendants’ affirmative actions to reach out for and obtain child pornography and the ability or actions taken to control the images – were sufficient.   See Id. ¶ 26.

Other cases have found that when a defendant purposefully searched child pornography out on the Internet and intentionally viewed it, they could knowingly control it. The conduct of purposefully viewing child pornography is control “because the viewer may, inter alia, manipulate, download, copy, print, save or email the images.” [Emphasis in original.] See Id. ¶ 28.

The court summarized its analysis by stating that, “courts are more concerned with how the defendants got to the website showing child pornography, than what the defendants actually did with the images. In all of the cases, the defendant reached out for the images. This fits with the definition of constructive possession.” [Emphasis in original.] See Id. ¶ 28.

The evidence presented at trial showed that Mercer, on at least 50 different days, searched with terms associated with child pornography and looked at images and text stories. He did not click on a Web site, see a child pornography image, and exit the Web site (indicating a mistake). Instead, he clicked to view the images, and then returned and pulled up many more images time and time again.

The court, therefore, affirmed the judgment of the circuit court and held that an individual knowingly possesses child pornography when he or she affirmatively pulls up images of child pornography on the Internet and views those images knowing that they contain child pornography. See Id. ¶ 30.