DANIEL KLOSKY, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-09-1571] HONORABLE CHARLES E. CLAWSON, JR., JUDGE
John Wesley Hall, Jr., and Sarah M. Pourhosseini, for appellant.
Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.
JIM HANNAH, Chief Justice
Following a bench trial, the Faulkner County Circuit Court convicted appellant, Daniel Klosky, Jr., of thirty-eight counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child, in violation of Arkansas Code Annotated section 5-27-602(a)(1) (Repl. 2006). He was sentenced to forty-eight months' imprisonment on each count, with all sentences to be served concurrently. Klosky filed a written motion to dismiss at the close of all the evidence, and the State filed a written response to the motion. In a letter order filed January 15, 2013, the circuit court found Klosky guilty on all counts. Klosky originally appealed that order to the Arkansas Court of Appeals, which recommended certification to this court because the case involved an issue of first impression and a significant issue requiring development of the law. This court accepted certification, and our jurisdiction is proper pursuant to Arkansas Supreme Court Rule 1-2(b)(1), (5) (2014). We affirm.
Klosky's sole argument on appeal is that the circuit court erred in denying his motion to dismiss because the State failed to prove thirty-eight counts of knowing receipt of child pornography for the purpose of distribution. Specifically, he contends that
[a] consideration of all the evidence in the case shows that this case of alleged knowing receipt of child pornography for the purpose of distribution, how it is charged, does not rise above speculation and conjecture that defendant knew that he had this child pornography on his computer on or about December 21, 2009 for the purpose of redistribution. . . . The defendant is charged with having files for redistribution to others. All we have, however, is the [Faulkner County Sheriff's Office] going into his computer and taking them. We have utterly no idea that the files were there for redistribution to others.
Klosky's challenge to the sufficiency of the evidence is premised on a misunderstanding of the statute. Arkansas Code Annotated section 5-27-602(a)(1) states that
[a] person commits the offense of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child if the person knowingly:
Receives for the purpose of selling or knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers, or agrees to offer through any means, including the Internet, any photograph, film, videotape, computer program or file, video game, or any other reproduction or reconstruction that depicts a child or incorporates the image of a child engaging in sexually explicit conduct.
(Emphasis added.) See also AMI Crim. 2d 2701.
A review of the plain language of the statute reveals that "knowing receipt for the purpose of distribution" is not among the elements that the State must prove to sustain a charge of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child. Accordingly, we affirm the circuit court's denial of Klosky's motion to dismiss.
Baker, Goodson, and Hart, JJ., ...