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State v. Barger

    Brief Fact Summary.

    Law enforcement searched Barger’s (Defendant) computer and found images of child pornography in the temporary internet cache. Defendant was convicted and appealed.

    Synopsis of Rule of Law.

    Evidence that an individual searched for and viewed child pornography on the internet is not sufficient to support a conviction for possessing or controlling digital images of child pornography

    Facts.

    Defendant was accused of sexually abusing a child. During the investigation, the police searched his computer. Law enforcement found images of child pornography in the temporary internet cache, where web pages visited by the user are stored. The images were not found anywhere on the computer’s hard drive. Defendant moved for acquittal at the end of the State’s case. The motion was denied, he was convicted of possessing child pornography and appealed. 

    Issue.

    Is evidence showing an individual searched for and viewed web sites showing child pornography enough to support a conviction for possessing or controlling child pornography?

    Held.

    (Dyke, J.) No. Evidence that an individual searched for and viewed child pornography on the internet is not sufficient to support a conviction for possessing or controlling digital images of child pornography. The statute requires more than accessing and viewing child pornography to be considered to possess or control it. There was no evidence that images of child pornography were copied and saved to the hard drive. Most computer users would not know how to access the temporary internet cache. The unexercised ability to manipulate, direct, or influence an image does not constitute constructive possession. If the ability to cause an item to appear on a computer screen was enough to establish control or possession, any person able to use the Internet would be guilty of this crime. The statute does not criminalize obtaining or viewing child pornography. The acts in this case are not the ones the legislature intended to criminalize. The Defendant’s motion for a judgement of acquittal should have been granted. Reversed.

    Discussion.

    The court held that the act of accessing a web page on the Internet and intentionally bringing up images of child pornography did not constitute possession or control over those images as prohibited by the statute. The ability to access prohibited images did not equal constructive possession.

     


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