Allen v. State

Cite as 2016 Ark. App. 264

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-15-546

OPINION DELIVERED MAY 18, 2016

THOMAS FLETCHER ALLEN APPEAL FROM THE WHITE
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2014-105]
V.
HONORABLE ROBERT EDWARDS,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

ROBERT J. GLADWIN, Chief Judge

Thomas Fletcher Allen was convicted in the White County Circuit Court on thirty

counts of possessing child pornography and three counts of computer exploitation of a child.

His sole argument on appeal is that the State failed to present sufficient evidence to support

his conviction. We affirm.

I. Statement of Facts

On March 25, 2014, Allen was charged by felony information with thirty counts of

distributing, possessing, or viewing matter depicting sexually explicit conduct involving a

child, in violation of Arkansas Code Annotated section 5-27-602 (Repl. 2013), and three

counts of second-degree computer exploitation of a child, in violation of section 5-27-605

(Repl. 2013). At a jury trial on those charges held December 9, 2014, Chad Meli, a special
Cite as 2016 Ark. App. 264

agent for the Arkansas Attorney General’s Office, testified that he specialized in computer-

related investigations and that he was given information about Allen’s computer IP address.

Meli was able to connect to Allen’s computer from a remote location and download

a shared folder from that particular IP address. Meli conducted five downloads between

October 31, 2013, and November 17, 2013. The downloaded files contained depictions of

children being sexually assaulted. Meli testified regarding the specific contents of the

downloaded files, and he explained that, from his remote connection, he discovered the IP

address belonged to Allen, whose physical address was in Beebe. After Allen’s identity had

been discovered and his address had been located, surveillance was conducted on his

residence.

A search warrant was issued, and it was executed on Allen’s apartment on December

19, 2013. Meli testified that Allen was the sole occupant of the apartment and answered

the door to police. Meli also stated that he never saw anyone other than Allen come and

go from the apartment during the surveillance. He said that there was no evidence that

anyone other than Allen lived at the apartment. Meli described the circumstances regarding

the search as follows:

We identify ourselves, who we work with. We secure the person, cleared the
apartment. I go back out and make a bit more detail with Mr. Allen. I told him I
had a search warrant for the residence and to look for computer evidence related to
a cyber-crimes investigation. It was at that time when I was explaining that to him,
going through my normal speech, where he leans over quickly to his right where
there’s a laptop computer and grabs some cables out of the computer. It appeared to

2
Cite as 2016 Ark. App. 264

be a USB. To prevent him from destroying evidence I grabbed him by the arm and
his shirt, took him to the ground and secured him. 1

Pursuant to the warrant, police found evidence that included a Toshiba laptop

computer, a Western Digital external hard drive—which was the device from which Allen

removed the cables at the time of his arrest—a desktop personal computer, an Hitachi hard

drive, and an ACER laptop computer. The items seized were taken to the forensic lab.

There, technicians discovered three of the pictures recovered from one device had been

manufactured by “taking the face of a child known to the suspect and then placing that face

on the body of another image, an illegal sexual image of a child.” Meli’s investigation led

him to discover that the child known to Allen was his granddaughter, and Allen’s daughter

verified that information.

Allen’s daughter also testified that she was not aware of anyone else living with her

father. However, she stated that a man named Steve, who had passed away shortly after “all

this” began, had stayed “in and out” of her father’s apartment. She said that she was not

aware of anyone besides Steve who had access to her father’s apartment.

Chris Cone, a special agent with the Arkansas Attorney General’s Office, testified

that he was involved in executing the search warrant on Allen’s apartment and that no one

else was at home at the time and there was no evidence that anyone else was living there.

He said that he conducted on-site previews of the evidence found, which included the

Toshiba laptop computer, the Western Digital external hard drive, and the Hitachi hard

1
Special Agent Chris Cone testified that if an encrypted hard drive is disconnected
from a computer in the manner described, the hard drive becomes encrypted, and, without
the password key to unlock it, the contents become inaccessible.
3
Cite as 2016 Ark. App. 264

drive. He said that the Hitachi and Toshiba were found to contain a number of still images

and videos depicting child sexual exploitation.

Jeff Shackelford, another special agent with the attorney general’s office, testified that

he prepared a report with the findings on the evidence gathered pursuant to the search

warrant. His report covered well over fifty gigabytes of actual evidentiary data discovered

on the computers and hard drives. He found that the Western Digital hard drive was

encrypted, but he was able to decode the passwords. He testified that he had found hidden

folders on the devices containing child pornography. He said that there was an excessive

number of files and videos that he found hidden, totaling 52.9 gigabytes of data. His

testimony was that there were well over 1000 files of a graphic nature, and of those,

hundreds were videos. He said that in preparation for his court appearance, he pulled out

a “representative sample” of thirty photos or videos to match each of the counts with which

Allen was charged.

Shackelford stated,

This is an unbelievably large amount of data, it would take some period of time to
download and store. It’s not something that you are going to accrue or collect in a
few days’ time even if you were to sit down and do nothing but try to acquire that
with the most high speed internet you could get. You’re not going to accrue that on
multiple devices with multiple time stamps that show up a great span, over a year’s
worth of activity. . . . One of the exhibits show that eMule folder having partial
downloads . . . . It appears that over a certain amount of time that files were
downloaded with eMule, off loaded from the main computer over to this
encrypted external hard drive and then erased from the laptop computer. We see a
small amount in there now and we see the collection, a large collection on that. It
was password protected with the same password, the user account found on another
computer in the defendant’s home. That computer also had evidence of eMule
activity and child pornography, the same type of filenames we’ve seen in the Counts
and elsewhere, that’s all that was being downloaded. We located child pornography
or remnants of child pornography on the cell phone, two laptop computers, the
4
Cite as 2016 Ark. App. 264

hard drive out of the desktop computer, the random hard drive found lying on a
shelf, everything but the Micro SD card from the digital camera. The common
denominator to all these devices is Thomas Allen.

After the trial court denied Allen’s motion for directed verdict, the jury convicted

Allen on all counts and recommended that he be sentenced to ten years consecutively on

each count. The trial court sentenced Allen to consecutive sentences on fifteen counts and

concurrent sentences on eighteen counts, giving him a net prison term in the Arkansas

Department of Correction of 150 years. A timely notice of appeal was filed, and this appeal

followed.

II. Applicable Law and Standard of Review

Pursuant to Arkansas Code Annotated section 5-27-602,

(a) A person commits distributing, possessing, or viewing of matter depicting sexually
explicit conduct involving a child if the person knowingly:

(1) 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;
or
(2) Possesses or views through any means, including on the Internet, any photograph,
film, videotape, computer program or file, computer-generated image, video game,
or any other reproduction that depicts a child or incorporates the image of a child
engaging in sexually explicit conduct.

When the sufficiency of the evidence is challenged, we consider only the evidence

that supports the verdict, viewing the evidence in the light most favorable to the State. Steele

v. State, 2014 Ark. App. 257, 434 S.W.3d 424. The test is whether there is substantial

evidence to support the verdict, which is evidence that is of sufficient force and character

5
Cite as 2016 Ark. App. 264

that it will, with reasonable certainty, compel a conclusion one way or another. Id. Witness

credibility is an issue for the fact-finder, who is free to believe all or a portion of any witness’s

testimony and whose duty it is to resolve questions of conflicting testimony and inconsistent

evidence. Id. “A jury need not lay aside its common sense in evaluating the ordinary affairs

of life, and it may infer a defendant’s guilt from improbable explanations of incriminating

conduct.” Walley v. State, 353 Ark. 586, 594, 112 S.W.3d 349, 353 (2003).

III. Sufficiency Argument

Allen argues that there was insufficient evidence to show that he possessed child

pornography. He contends that, while he was present at the scene when the police executed

the search warrant, there was no evidence that he was in exclusive use of the property. In

Steele, supra, this court considered the same argument—that there was insufficient evidence

that the child pornography was the appellant’s because other people had access to his

computer. We stated,

In cases involving constructive possession of child pornography on a computer,
where joint access is alleged, the Eighth Circuit has required “ownership, dominion
or control over the [pornographic material] itself, or dominion over the premises in
which the [pornographic material] is concealed.” See, e.g., United States v. Acosta,
619 F.3d 956, 961 (8th Cir. 2010) (alteration in original) (citation omitted).

Steele, 2014 Ark. App. 257, at 7, 434 S.W.3d at 429.

Allen argues that his daughter, who testified for the State, said that there was a man

named Steve who was also at the apartment and could have had access to the computers.

Allen contends that there was no testimony that he created, modified, accessed, or

downloaded the pornographic images onto the computers. He claims that there was no

6
Cite as 2016 Ark. App. 264

evidence that he exercised dominion and control over the contraband. Thus, he argues that

there was insufficient evidence presented to allow the case to go to the jury.

The State claims that substantial evidence supports Allen’s convictions on all counts.

We agree. As in Steele, supra, even assuming that there was joint access as alleged by Allen,

the evidence was sufficient to show that Allen exercised dominion and control over the

various computers and hard drives that held over a thousand images and videos of child

pornography. The evidence was that agents from the attorney general’s office suspected

that Allen was in possession of child pornography and investigated the crime. After

surveillance work satisfied officers that Allen lived alone, a search warrant was executed on

his apartment, and the computers and hard drives were seized. Allen attempted to prevent

officers from finding evidence on one hard drive by unplugging cables from the device, thus

encrypting the information contained on it. After gaining access by determining the correct

password, agents found that the computer contained “an unbelievably large amount” of

child pornography. The jury may regard a defendant’s efforts to conceal a crime as evidence

of consciousness of guilt. E.g., Williams v. State, 2015 Ark. 316, 468 S.W.3d 776.

Considering the evidence in the light most favorable to the verdict, substantial evidence

supports Allen’s convictions.

Affirmed.

KINARD and GRUBER, JJ., agree.

David Dunagin, for appellant.

Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.

7