Minnesota court affirms CP conviction over argument the crimes were presented as strict liability crimes, reverses possession charges as lesser-included offenses

In State v. McCauley, No. A11-0606 (Minn. Ct. App. 2012), the Minnesota Court of Appeals reversed two convictions for possession of child pornography because they were lesser-included offenses of dissemination convictions. However, the court affirmed otherwise over an argument that the crimes were erroneously presented as strict liability crimes to the jury.

After observing that a Limewire user had downloaded what appeared to be child pornography, a local police officer obtained a search warrant to search the defendant's home. During the execution of the warrant, 63 images of child pornography were found, most of which were in his Limewire Shared folder. The defendant was convicted on two counts of dissemination of child pornography and 22 counts of possession.

On appeal, one of the defendant's arguments was that the possession and dissemination charges were presented as strict liability crimes to the jury. For the possession statute, the "knowing" requirement is placed on the "content and character" of the work rather than the actual possession. However, the court considered it implied - you cannot knowingly be aware of the content if you do not knowingly possess it, they reasoned. With the dissemination counts, however, the court held that a "knowing" requirement could not be similarly implied for dissemination. The court held, "[T]he state must prove that a defendant knew he was disseminating child pornography." However, it was not plain error nor did the court "believe the verdict would have been different." Thus, the defendant lost on his mens rea argument.

The defendant won, however, on an argument that two of his possession convictions were lesser-included offenses of the respective dissemination convictions. The possession convictions "corresponded to the two dissemination convictions" on the same dates.

Thus, the court affirmed the two dissemination convictions and twenty of the possession convictions, while reversing two.

As an aside, the appellate court made a point to mention (based on testimony at trial) that the defendant's computer had CCleaner installed on it and that "users often use CCleaner to get rid of illicit files, such as those containing child pornography." The statement seems akin to saying something like "a shredder is often used to illegally destroy evidence" during a trial for obstruction of justice. The blanket statement is both unhelpful and prejudicial. The notion that only criminals try to protect their sensitive data is one that our courts need to quickly overcome.