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.
Though the relevant facts are summarized below, greater detail may be found in the Court of Appeals' opinion.
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
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 file-sharing programs to download multiple pornographic images 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."
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."
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.
The meaning of a statute is a question of law, on which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.
In both the State's brief and at oral argument, the State places great emphasis on the classification of the violation of § 28-813.01 as a "general intent" or "specific intent" crime. The State argues that violation of § 28-813.01 is a "general intent" crime and that the Court of Appeals inaccurately classified it as a "specific intent" crime.
We do not believe the classification of the violation of § 28-813.01 as a "general intent" or "specific intent" crime is helpful in determining what the statute requires. These terms have been the source of considerable confusion, perhaps because of the inconsistent definitions given to these terms over time.
We return to the language of § 28-813.01(1), which provides: "It shall be unlawful for a person to knowingly possess any visual depiction of sexually explicit conduct . . . which has a child . . . as one of its participants or portrayed observers." The issue faced by the Court of Appeals, and the issue we face today, is the meaning of the phrase "knowingly possess."
In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.
Section 28-813.01 makes no reference to the intentional seeking of child pornography, and the State mischaracterizes the Court of Appeals' opinion as "interpreting
In reaching the conclusion that a conviction under § 28-813.01 requires proof of the "specific intention to possess child pornography," the Court of Appeals stated it was unable to locate any Nebraska cases on the question but found State v. Schuller
In Schuller, this court found that the evidence was sufficient to support a finding that the defendant had knowingly possessed child pornography. The defendant admitted to purposefully searching the Internet for child pornography, downloading child pornography, and watching child pornography before deleting it. Despite the defendant's efforts to delete the files, remnants of the files remained on his hard drive at the time it was confiscated.
We applied the common-law principle of constructive possession, which "may be proved by mere ownership, dominion, or control over contraband itself, coupled with the intent to exercise control over the same,"
We acknowledged there was "no question that [the defendant] knowingly possessed those files,"
In response to the defendant's argument in Schuller, that downloading alone could not be sufficient evidence of possession, we said:
We then explained that such was not the case in Schuller.
We have previously said that the meaning of "knowingly" in a criminal statute commonly imports a perception of facts required to make up the crime.
Accordingly, we hold that a person knowingly possesses child pornography in violation of § 28-813.01 when he or she knows of the nature or character of the material and of its presence and has dominion or control over it. The means or methods of exercising dominion or control over an electronic image may well differ from those typically applicable to physical contraband. But we need not address such questions in the case before us.
We note that Mucia does not challenge the Court of Appeals' conclusion that there was sufficient circumstantial evidence to support a finding that Mucia knowingly possessed child pornography. We therefore do not question that finding.
Our holding is consistent with the Court of Appeals' opinion, and we therefore affirm.
AFFIRMED.
Stacy, J., not participating.
Connolly, J., concurring.
I agree with the majority's implicit conclusion that under Neb.Rev.Stat. § 28-813.01 (Cum.Supp. 2014), a person knowingly possesses child pornography on a computer when the person exercises dominion or control over the computer or any external component containing the images; knows that the images are stored on the computer or external component; and knows that they depict sexually explicit conduct involving a child.
It is true that the distinction between general and specific intent is sometimes confusing. And the answer is not always obvious. But the distinction was clearly
I acknowledge that this is a difficult issue, primarily because of a paucity of published opinions deciding this issue.
In Thurman, we rejected the defendant's argument that because his convictions for first degree sexual assault and false imprisonment were general intent crimes, they could not be the predicate offense underlying his conviction for use of a weapon to commit a felony. We acknowledged that we have held an unintentional crime cannot be the predicate offense.
Perhaps we could have been more explicit. But we implicitly meant that for general intent crimes, the State is only required to prove that a defendant intended to commit the acts proscribed by statute and that this intent is shown by proving that the defendant did commit those acts.
In support of our conclusion that false imprisonment—which has a "knowledge" mens rea component
In sum, in Thurman, we rejected the defendant's argument that false imprisonment could not be the predicate offense for use of a weapon to commit a felony because the "knowingly" component of § 28-314 showed it was a general intent crime; as such, the defendant must have intended to commit the acts that the statute proscribed. That conclusion is consistent with other cases in which we have discussed the distinction between general and specific intent crimes.
For example, in State v. Tucker,
Thurman and Tucker illustrate that the distinction between general and specific intent crimes is frequently a relevant consideration. And our case law seems to be generally consistent with the explanation in Tucker of these terms.
In contrast, when a statute simply proscribes specified conduct, the statute sets forth a general intent crime and the State only needs to show that the defendant knew what he was doing—i.e., understood the nature of his acts—and intended to commit the acts that constitute the crime. The State does not have to prove that the defendant intended to cause a proscribed result or to violate a specific statute.
It is true that in Bailey, the U.S. Supreme Court stated that the distinction between general and specific intent crimes has been a source of confusion because, historically, courts have not consistently used the terms to mean the same thing.
But the Court acknowledged that even under the Model Penal Code's hierarchy, the distinction between the mental states of knowledge and purpose remains the most significant and esoteric; it pointed out that for some crimes, that distinction remains important.
In particular, the distinction between general and specific intent is important when a defendant claims that his or her diminished capacity should be a defense to a crime, because that defense is irrelevant to general intent crimes.
So, I do not think we should imply that the general/specific intent dichotomy is archaic or irrelevant. Instead, we should focus on the more important issue that the U.S. Supreme Court discussed in Bailey: whether a required mental state applies to
As stated, the Court of Appeals concluded that under § 28-813.01, a defendant must have a 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. I agree that the statute does not criminalize the downloading of electronic files with child pornography unless the evidence establishes that the defendant knew the files contained child pornography. A person cannot knowingly possess contraband unless he or she knows the nature of the material.
Contrary to the State's argument, this conclusion does not require the State to prove that a defendant intentionally sought out files depicting child pornography. The Legislature did not proscribe knowingly receiving child pornography; it proscribed knowingly possessing it.
Because this is a general intent statute, the State is only required to show that Mucia knowingly possessed child pornography, not that he purposefully possessed it. And I do not think this is a case in which the distinction between purposeful and knowing possession is irrelevant. For example, if a fact finder determines that a defendant had dominion or control over a computer and knew that child pornography was stored on it, the defendant would be guilty of knowingly possessing child pornography even if the defendant allowed access to another person who had downloaded the materials to the computer.
The Legislature's intent in prohibiting the possession of child pornography is clearly to stop activities that perpetuate the sexual exploitation of children.
In sum, contrary to the tenor of the majority opinion, I believe that the distinction between general and specific intent continues to have relevance in criminal law and that it has relevance under § 28-813.01.
