Rehearing Denied November 20, 2019
Page 197
APPEAL
FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-17-295],
HONORABLE JOHN HOMER WRIGHT, JUDGE
Ben
Motal, for appellant.
Leslie
Rutledge, Atty Gen., by: Chris R. Warthen, Asst Atty Gen.,
for appellee.
OPINION
BRANDON
J. HARRISON, Judge
A
Garland County Circuit Court jury found Gerald Lee Groomes
guilty of twenty counts of distributing, possessing, or
viewing matter depicting sexually explicit conduct involving
a child. On appeal, he argues that some of the images do not
depict sexually explicit conduct, that there was insufficient
evidence that he knowingly viewed or possessed prohibited
material, and that his convictions violate constitutional
prohibitions on double jeopardy and cruel and unusual
punishment. We affirm.
In May
2017, Groomes was charged with thirty counts of distributing,
possessing, or viewing matter depicting sexually explicit
conduct involving a child.[1] At a jury trial in May 2018,
Special Agent Michael Hendrix, an employee of the Arkansas
Attorney Generals Office Special Investigations Division,
testified that he works in the cybercrimes unit and primarily
investigated child-exploitation cases. He explained that as
an investigator, he has specialized tools that monitor
peer-to-peer networks, which allow the transfer of digital
files over the internet from one computer to another. These
tools focus on anyone who offers to participate in the
sharing of child-exploitation material and makes such files
public. The system identifies that users IP address, which
can provide the users geolocation, service provider, and
physical address or name assigned to the account.
Hendrix testified that on 5 October 2016, he connected with
IP address 99.43.27.24; that user was offering to participate
in the sharing of child pornography. Hendrixs computer
connected with that users computer and was able to download
185 files of alleged child-exploitation material between
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October 5 and 8 January 2017. On 19 March 2017, Hendrix
connected with the same IP address and downloaded one
additional file of alleged child pornography. At that point,
Hendrix assigned the case to another agent to initiate the
legal process of obtaining a subpoena for that users service
provider and to proceed with the case.
On
cross-examination, Hendrix confirmed that the IP address he
had connected with belonged to Groomess home computer. He
also said that Groomes used a program called uTorrent to
download and share the images. Hendrix agreed that he cannot
tell if a person opened a file on his or her own computer,
but he can show that a file was downloaded and stored in a
shared folder.
Drew
Evans testified that in January 2017, he had been a special
agent with the Arkansas Attorney Generals Office and worked
in the cybercrimes unit. Evans took over Hendrixs
investigation and identified approximately 280 files
containing suspected child pornography in the files he
received from Hendrix. Evans personally viewed each image and
identified it as sexual-exploitation material. He subpoenaed
AT & T to obtain the subscriber information for the IP
address; the subscriber was identified as Gerald Groomes. On
1 March 2017, Evans and Agent Jeremiah Terrell went to
Groomess address and confirmed that Groomes had lived there
by himself since 2011. On March 19, with Groomess computer
still actively sharing child-exploitation material, Evans
began drafting a search warrant. The warrant was executed on
March 23, and agents seized Groomess computer and hard
drive. Special Agent Chris Cone, a computer-forensics expert,
examined the evidence at the scene and confirmed the presence
of explicit images, so Groomes was arrested.
Cone
testified that agents found a desktop computer that was
powered off in Groomess residence. Cone explained that he
removed the side panel, disconnected the power and
data-connection cables on the back of the hard drive, and
connected them to his own laptop, which allowed him to read
the information contained on the hard drive. He was able to
quickly determine that file-sharing software was installed on
the hard drive and that there were "files of interest to
this investigation" on the hard drive. He then stopped
his examination and transported the hard drive to his lab in
Little Rock, where he created an "acquired forensic
image," meaning a copy, of the hard drive so he could
work from the copy without jeopardizing the original. Cone
applied a filter that allowed him to view all the still
images or videos containing child pornography regardless of
where those images were stored on the hard drive. Cone also
determined that the hard drives current Windows operating
system had been installed on 1 March 2017, twenty-two days
before the search warrant was executed, and contained one
user-created account named "great." Cone confirmed
the presence of file-sharing software, ...