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State v. Mucia

Supreme Court of Nebraska

October 30, 2015


Petition for further review from the Court of Appeals, IRWIN, INBODY, and PIRTLE, Judges, on appeal thereto from the District Court for Lancaster County, KAREN B. FLOWERS, Judge.

Sean J. Brennan for appellant.

Douglas J. Peterson and Jon Bruning, Attorneys General, and Melissa R. Vincent for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, AND CASSEL, JJ. Stacy, J., not participating. Connnnolly, J., concurring.


Page 222

[292 Neb. 2] McCorMack, J.


We granted further review of the Nebraska Court of Appeals' opinion that affirmed the conviction of appellant, Gregory M. Mucia, of possession of child pornography.[1] The issue raised in the State's petition concerns the meaning of the phrase " knowingly possess" as used in Neb. Rev. Stat. § 28-813.01 (Cum. Supp. 2014), which makes it illegal to " knowingly possess any visual depiction" of child pornography.


Though the relevant facts are summarized below, greater detail may be found in the Court of Appeals' opinion.[2]

In 2011, Mucia was 23 years old and living with his younger brother in an apartment in Lincoln, Nebraska. On October 24, a search warrant for that apartment was issued after law enforcement software had detected 10 files suspected to

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be child pornography " available for sharing" from an Internet protocol address linked to the apartment. The next day, Corey Weinmaster, a Lincoln Police Department investigator, executed the warrant and lawfully seized Mucia's two laptop computers.

A forensic search of the computers produced evidence of child pornography. Most notably, four videos of child pornography were located in a folder created by a file-sharing program; that folder had been placed within a " Music" folder. In addition to the four videos in that folder, Weinmaster found 14 files in the recycle bin on Mucia's computer, which Weinmaster later testified were still accessible and able to be restored. Weinmaster also recovered a number of incomplete files, files recovered from the browser cache, and link files, which Weinmaster testified were related to child pornography.

At his 2-day bench trial, Mucia admitted to using filesharing programs to download multiple pornographic images [292 Neb. 3] and videos at once, i.e., " 'batch downloading'" pornography. Mucia testified that he intended to obtain adult pornography and that he never intentionally searched for or intentionally obtained child pornography.

Mucia admitted there were times he suspected some of the files he downloaded contained child pornography. But Mucia testified that when he saw or suspected that an image or video depicted a child in a sexually explicit manner, he would delete the file because he " didn't want anything to do with child pornography" and " wasn't interest[ed] in it at all." Mucia testified he was unaware that the four videos found by Weinmaster were on his computer.

The trial court found Mucia guilty of possession of child pornography, age 19 and over, which is a Class IIA felony, and sentenced him to 3 years' probation. Mucia's conviction also caused him to be subject to the Nebraska Sex Offender Registration Act.

Mucia appealed his conviction to the Court of Appeals. Of relevance to this review, Mucia assigned that the trial court erred in finding that the State adduced sufficient evidence to demonstrate Mucia " knowingly" possessed child pornography. Mucia argued that the evidence showed he did not knowingly save illegal files, but " unintentionally received illegal files and subsequently deleted them whenever he discovered their presence." [3] He asserted that the " few undeleted files that remained were not knowingly possessed," [4] and the State did not present evidence to overcome that defense.

In the Court of Appeals' opinion, it determined that " § 28-813.01 requires sufficient proof that [Mucia] had the specific intent to possess child pornography, and not merely a general intent to download files that, unbeknownst to him, turned out to be child pornography." [5] After finding such proof [292 Neb. 4] and resolving all other issues, the Court of Appeals affirmed Mucia's conviction.

In response to the Court of Appeals' interpretation of § 28-813.01, the State timely filed a petition for further review, which was granted.


In its petition for further review, the State assigns that " [t]he Court of Appeals erred in finding that knowing possession of child pornography in violation of Neb. Rev. Stat. § 28-813.01

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(Cum. Supp. 2010) is a specific intent crime that requires the State to prove the defendant intentionally sought out files depicting child ...

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