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State v. Mucia

Court of Appeals of Nebraska

March 31, 2015

STATE OF NEBRASKA, APPELLEE,
v.
GREGORY M. MUCIA, APPELLANT

Page 90

Appeal from the District Court for Lancaster County: KAREN B. FLOWERS, Judge.

Sean J. Brennan for appellant.

Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.

IRWIN, INBODY, and PIRTLE, Judges.

OPINION

Page 91

[22 Neb.App. 822] 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 depiction" of child pornography. The charge was based on the identification of child pornography files on Mucia's computer, discovered by a Lincoln Police Department investigator, Corey Weinmaster.

At trial, Mucia did not dispute that evidence of child pornography 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 pornography, he deleted it. Mucia argued at trial that he had not knowingly

Page 92

possessed child pornography, because to do so would require him to have done so in a way that was not accidental or involuntary.

[22 Neb.App. 823] Weinmaster testified at trial that he investigates child pornography 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 software 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 identified computer also has a unique identification that can also be tracked.

According to evidence adduced at trial, Weinmaster's investigation was based on identifying persons using peer-to-peer (P2P) software, wherein users install publicly available software 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 sharing 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 pornography files. Weinmaster then completed an affidavit for search warrant. According to his affidavit, he reviewed the information 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 daughter incest xxx ora.mpg," " ! NEW ! (pthc) Veronika Nuevo 2 [22 Neb.App. 824] Nenas_all.mpg," and " (((KINGPASS))) (pthc) (dark studio) Dark Robbery.mpg."

Weinmaster reviewed the files in the law enforcement database 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 penetration; Weinmaster estimated that the children were approximately 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 penetration 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, approximately 12 to 14 years of age, exposing their breasts and vaginas and rubbing their vaginas.

Copies of these four videos were offered and received, over objection, at trial. Weinmaster testified that his software program indicated that the video files had been present on Mucia's computers, but

Page 93

that they were no longer present on the computers 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 computers 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.

[22 Neb.App. 825] In 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 ...


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