State v. John E. Sowin

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 23, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP647-CR Cir. Ct. No. 2016CF194

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN E. SOWIN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Calumet County:
JEFFREY S. FROEHLICH, Judge. Affirmed.

Before Reilly, P.J., Gundrum and Davis, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP647-CR

¶1 PER CURIAM. A jury found John E. Sowin guilty of fifteen
counts of possession of child pornography. We reject his contentions that his
motions to suppress the fruits of the search warrant leading to the discovery of the
pornography should have been granted and that the evidence should have been
excluded at trial as irrelevant or more prejudicial than probative. We also disagree
that the evidence was insufficient to support the verdict. We affirm the judgment.

¶2 The Appleton Police Department received three “cybertips” from the
National Center for Missing and Exploited Children (NCMEC) regarding possible
computer possession of child pornography.1 The cybertips were passed to
NCMEC from “Omegle,” a video-based chat room that allows users to upload
images to share with other users and captures suspicious images from webcams
used during chats. Omegle reported images from a particular internet protocol
(IP) address depicting an approximately six-year-old female performing oral sex
on an adult male. See 18 USC § 2258A (2020). A subpoena to Time Warner
Cable determined that the IP address transmitting the images belonged to Sowin at
his residential address; two other cybertips of similar child pornography also
originated from IP addresses belonging to Sowin.

¶3 Appleton police detective Matt Kuether, a sex-offender registry
specialist and sensitive-crimes investigator, filed an affidavit in support of a search
warrant of Sowin’s residence. The court found that the affidavit stated at least a
minimum standard of probable cause because there was “a substantial basis” of “a
fair probability that a search would uncover evidence of wrongdoing.” Looking to

1
The cybertip first went to the Kaukauna police department. Given Sowin’s residential
address, the information was relayed to Appleton police.

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No. 2019AP647-CR

State v. Silverstein, 2017 WI App 64, 378 Wis. 2d 42, 902 N.W.2d 550, the court
found that, like Tumblr.com, the electronic service provider in Silverstein, Omegle
was the equivalent of an identifiable citizen informant, as it is a named, traceable
entity that is reporting a crime in furtherance of public safety, and gains nothing
from making the tip. See id., ¶¶2, 19.

¶4 A forensic analysis of a computer seized from Sowin’s secluded
personal home office accessible only through a heavy bookcase door revealed no
viewable images of child pornography; however, fifteen “thumbnail databases”
were among the data examined. Sowin moved to exclude them. He alleged that
the affidavit in support of the search warrant failed to establish probable cause that
evidence of child pornography would be found in his residence or to establish
either Omegle’s credibility as a “tipster” or the reliability of the information. He
contended that, due to the thumbnails’ manner of storage and microscopic size,
they could not be accessed or viewed without additional software not present on
his computer so that it was not possible to determine whether he ever saw, opened,
viewed, accessed, or even knew about the images.

¶5 After additional briefing and a hearing on the relevance motion, the
court was persuaded that, under the broad “or other recording” language of WIS.
STAT. § 948.12(1) (2017-18),2 the thumbnails were akin to undeveloped film and
found them relevant and not unfairly prejudicial.

2
Under WIS. STAT. § 948.12,

(1m) Whoever possesses, or accesses in any way with the intent to view, any
undeveloped film, photographic negative, photograph, motion picture, videotape, or other
recording of a child engaged in sexually explicit conduct under all of the following circumstances
may be penalized under sub. (3)

(continued)

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No. 2019AP647-CR

¶6 Using software not found on Sowin’s computer, Stacey Sadoff, a
Wisconsin Department of Justice (DOJ) digital forensic analyst, was able to
produce the fifteen images allegedly meeting the definition of child pornography
under WIS. STAT. §§ 948.12(1m) and 948.01(7) and put them on a flash drive.
Sowin went to a jury trial on fifteen counts of child pornography possession. The
jury viewed the flash drive images and found Sowin guilty. This appeal followed.

Probable Cause for Search Warrant

¶7 Sowin first contends his motion to suppress should have been
granted because the affidavit supporting the search warrant was not supported by
probable cause to believe that evidence of possession of child pornography would
be found in his home. He argues that the information in the affidavit is too
attenuated, as it depended upon Kaukauna Police Lieutenant Graf’s3 information,
which depended upon NCMEC’s, which originated from Omegle, the credibility
and reliability of which was not set forth.

¶8 “Our review of an order granting or denying a motion to suppress
evidence presents a question of constitutional fact.” State v. Robinson, 2010 WI
80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463 (citation omitted). When presented

(a) The person knows that he or she possesses or has accessed the material.

(b) The person knows, or reasonably should know, that the material that is possessed or
accessed contained depictions of sexually explicit conduct.

(c) The person knows or reasonably should know that the child depicted in the material
who is engaged in sexually explicit conduct has not attained the age of 18 years.

All references to the Wisconsin Statutes are to the 2017-18 version unless noted.
3
The Kaukauna lieutenant’s name is spelled both “Graf” and “Graff” in the record.

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No. 2019AP647-CR

with a question of constitutional fact, we first deferentially review the circuit
court’s findings of historical fact, upholding them unless they are clearly
erroneous, then independently apply constitutional principles to those facts. Id.

¶9 Appellate courts “accord great deference to the warrant-issuing
judge’s determination of probable cause and that determination will stand unless
the defendant establishes that the facts are clearly insufficient to support a finding
of probable cause.” State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d
24 (1991). The court issuing the warrant must “make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before it,
there is a fair probability that contraband or evidence of a crime will be found in a
particular place.” State v. Multaler, 2002 WI 35, ¶8, 252 Wis. 2d 54, 643 N.W.2d
437. The test is not whether the inference drawn is the only reasonable inference
but whether it is a reasonable one. State v. Ward, 2000 WI 3, ¶29, 231 Wis. 2d
723, 604 N.W.2d 517.

¶10 According to the warrant affidavit, Graf received a cybertip from
NCMEC, filed by Omegle. The cybertip stated that twice in December 2013 and
again twice in February 2014, images containing suspected child pornography
were reported from IP addresses verified as registered to Sowin and included his
home address, home email address, and his telephone number. Per Omegle, all of
the images depicted juvenile females performing fellatio on adult males.

¶11 Sowin argues that, despite similarities, the trial court erred in
analogizing his case to Silverstein. In Silverstein, electronic service provider
“Tumblr” provided information regarding alleged child pornography to NCMEC,
which in turn provided it to police. Silverstein, 378 Wis. 2d 42, ¶¶6-8. The
affidavit there described how the tip was provided to and processed by law

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No. 2019AP647-CR

enforcement; we upheld the denial of Silverstein’s warrant challenge, concluding
that the Tumblr tip was properly viewed as having come from an identified citizen
informant and thus was reliable. Id., ¶2. By contrast, Sowin asserts, Kuether’s
affidavit simply presumed Omegle’s reliability.

¶12 We disagree. “[C]ourts recognize the importance of citizen
informants and accordingly apply a relaxed test of reliability that shifts from a
question of ‘personal reliability’ to one of ‘observational reliability.’” State v.
Kolk, 2006 WI App 261, ¶13, 298 Wis. 2d 99, 726 N.W.2d 337 (citation omitted).
The Kuether affidavit outlined three specific cybertips based on Omegle’s
discovery of actual images in its chat room depicting child pornography which,
like other internet services providers, required disclosure. See id., ¶¶5, 19. The
affidavit provided the IP addresses belonging to Sowin and subscriber information
registered to him at his home address with his email address and telephone
number. The affidavit also referenced WIS. STAT. § 948.12, supporting an
inference that Sowin knowingly possessed images of child pornography. The trial
court found that Omegle basically is “an identical entity to Tumblr … that’s
traceable … that does not gain anything from making the tip, and [as] … a
mandated reporter to NCMEC … is basically a citizen informant.” Circumstances
set forth in the affidavit allowed a reasonable inference that evidence of a crime
would be found. We conclude the warrant was supported by probable cause.

Admission of Thumbnail Databases

¶13 Sowin next contends that, as additional necessary software was not
present on his computer when police executed the search, it was not possible to
determine whether he ever saw, opened, viewed, accessed, or even knew about the
thumbnail databases. He argues that the databases thus were irrelevant to the issue

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No. 2019AP647-CR

of knowing possession, see WIS. STAT. 948.12(1m), but, even if relevant, they
should have been excluded as more prejudicial than probative.

¶14 The trial court’s decision to admit or exclude evidence is reviewed
for an erroneous exercise of discretion, State v. Wilson, 2015 WI 48, ¶47, 362
Wis. 2d 193, 864 N.W.2d 52, that is, whether the court’s decision comported with
accepted legal standards and with the facts of record, State v. Stinson, 134 Wis. 2d
224, 232, 397 N.W.2d 136 (Ct. App. 1986).

¶15 Evidence is relevant if it tends to make the existence of any fact of
consequence more or less probable that it would be without the evidence. WIS.
STAT. § 904.01. If relevant, the evidence generally is admissible. WIS. STAT.
§ 904.02. But even if relevant, evidence may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” WIS. STAT. § 904.03.

¶16 The State had to show Sowin knowingly possessed sexually explicit
images of children. As used in WIS. STAT. § 948.12(1m), “know” “requires only
that the actor believes that the specified fact exists.” WIS. STAT. § 939.23(2).
Knowledge and intent are closely related: “When criminal intent is an element of
a crime … such intent is indicated by the term ‘intentionally’, the phrase ‘with
intent to’, the phrase ‘with intent that’, or some form of the verbs ‘know’ or
‘believe.’” Sec. 939.23(1); see also WIS JI – CRIMINAL 2146A. The presence of
the thumbnails on Sowin’s computer constitutes legitimate circumstantial and
inferential evidence from which the jury could decide whether Sowin knowingly
possessed the images. See, e.g., State v. Spraggin, 77 Wis. 2d 89, 105, 252
N.W.2d 94 (1977).

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No. 2019AP647-CR

¶17 The thumbnails are relevant because, at trial, the State reasonably
could anticipate that Sowin would dispute that he knowingly possessed the
pornographic images. DOJ forensic analyst Sadoff testified that Sowin’s office
computer contained thumbnails of suspected child pornography and that, whether
“downloaded or viewed or moved from another device,” “at some point …
[s]omething was done to have the operating system create [them]” and that a
“savvy user of computers” would know how to download software to erase the
actual images. She also testified about other things found on Sowin’s computer: a
“peer-to-peer sharing” program called “Ares” and evidence that child pornography
was downloaded on Ares to his computer; a browser called “Tor” that can be used
to search and view child pornography on the computer; and an internet history
revealing more than 100,000 search terms frequently seen in child pornography
investigations.

¶18 Sowin’s wife testified that Sowin was “very smart technologically,”
that he had built computers, and that his computer was located in a “private office
space” with a large bookcase for a door, and she and the children used a computer
in another room.

¶19 Defense expert Peyton Engel testified that thumbnail images could
be present on the hard drive only if someone previously downloaded or viewed the
images on that computer. Engel also testified that: to open the thumbnail cache
file, a piece of free software not present on Sowin’s computer was needed but
obtaining and downloading it was not difficult; as the user ID on the computer was
“John5,” there was “no dispute” that Sowin was a user of the computer; the
thumbnails of child pornography were in a folder that was in “one way or another
accessed on the computer” “not inconsistent” with someone viewing the images; a
sophisticated user of a computer “can cover their tracks pretty well”; a “good way

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No. 2019AP647-CR

of not leaving traces of your browsing activity” is to use Tor; evidence that
someone had installed Tor, built a computer, or installed hard drives “would be
consistent with someone having a bit more understanding” of computers than the
average person; searching the internet was “evidence of interest in the thing being
searched for,” such that a search for child pornography shows an intent to locate or
find it “[a]t the time you did that search[]”; and the search for child pornography
on Sowin’s computer was “consistent with the subject matter of the images in the
thumbcache database.”

¶20 In State v. Mercer, 2010 WI App 47, 324 Wis. 2d 506, 782 N.W. 2d
125, this court considered whether pornographic images found by monitoring
software in Mercer’s computer’s temporary cache files were relevant to knowing
possession of child pornography. Id., ¶¶17–23. Despite no digital images of child
pornography on Mercer’s computer hard drive, we concluded that “an individual
knowingly possesses child pornography when he or she affirmatively pulls up
images of child pornography on the Internet and views those images knowing that
they contain child pornography. Whether the proof is hard drive evidence or
something else … should not matter because both capture a ‘videotape’ of the
same behavior.” Id., ¶31. The thumbnail images found on Sowin’s computer thus
were relevant and admissible to prove that he knowingly possessed child
pornography.

¶21 Here, there is additional evidence that tends to show that the
computer user sought out child pornography. “John5” performed searches using
child pornography terms, many conducted in close proximity to searches related to
medical and radiology terms—Sowin is a radiologist—allowing the jury to infer
that Sowin conducted the searches. The Appleton police investigation report
describes in over thirteen pages the extensive internet searches using child

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No. 2019AP647-CR

pornography terms that the forensic analysis of Sowin’s computer uncovered. The
existence of the thumbnail images of child pornography is relevant to the issue of
knowing possession of child pornography, particularly in conjunction with the
evidence leading to a reasonable inference that Sowin used his computer to search
for child pornography on multiple occasions.

¶22 We agree with the trial court that the broad language of WIS. STAT.
§ 948.12(1m) (“or other recording”) further supports the conclusion that Sowin
was in violation of the statute by virtue of his possession of the pornographic
thumbnail images. Whether or not there was a viewer on Sowin’s computer at the
time police seized it, the jury could infer that the thumbnail images were “other
recordings” created as a result of the user possessing child pornography. The jury
heard testimony that the software was free and easily obtainable and that being
computer savvy, Sowin would know how to download the viewing software and
cover his tracks by using other software to hide his online activity. This evidence
was not only probative but central to the State’s case and permitted the jury to
reasonably infer that Sowin would know how to install and remove software so as
to view the thumbnail images. Unless the danger of unfair prejudice “substantially
outweigh[s]” the evidence’s probative value, “the bias, then, is squarely on the
side of admissibility. Close cases should be resolved in favor of admission.”
State v. Marinez, 2011 WI 12, ¶41, 331 Wis. 2d 568, 797 N.W.2d 399 (citation
omitted). Sowin’s claim that the evidence is “highly prejudicial” fails in light of
its significant probative value.

¶23 Further, The child pornography thumbnails found on Sowin’s
computer were relevant to the State’s burden of proving knowing possession and
their probative value far outweighed any prejudice.

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No. 2019AP647-CR

Sufficiency of the Evidence

¶24 Finally, Sowin argues that the physical evidence presented at trial
was insufficient to find him guilty of possession of child pornography. Once
again, he reiterates the lack of the thumbnail viewer software on his computer.

¶23 Sowin’s claim that the circumstantial evidence does not support the
verdicts is not persuasive. The State bears the burden of proof to prove beyond a
reasonable doubt every essential element of the crime charged. State v.
Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). The test is not
whether this court is convinced of the defendant’s guilt, but whether we can
conclude that, acting reasonably, the evidence could so convince the trier of fact
and we must view it in the light most favorable to the finding. Id. at 503-04. This
standard applies equally to circumstantial evidence. Id. at 502. On review, we
may overturn a verdict on grounds of insufficiency of the evidence only if the trier
of fact could not possibly have drawn the appropriate inferences from the evidence
adduced at trial. State v. Watkins, 2002 WI 101, ¶68, 255 Wis. 2d 265, 647
N.W.2d 244.

¶24 Throughout this opinion we have described the evidence, albeit
circumstantial, that supports the jury’s inferences that Sowin knowingly possessed
child pornography. We need not recite it again. The evidence was sufficient to
support the verdicts.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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