2024 N.H. 24, State v. Higgins

the brief and orally), for the defendant. Desmeules Olmstead & Ostler, of Norwich, Vermont (Cabot Teachout on

for the State. general (Audriana Mekula, assistant attorney general, on the brief and orally), John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Citation: State v. Higgins, 2024 N.H. 24 Case No. 2023 - 0258 Grafton

THE SUPREME COURT OF NEW HAMPSHIRE

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

terabyte.” I nvestigators identified “several hundred” torrent files on the and that the devices could store “potentially millions of photographs per devices collectively contained approximately twenty - four terabytes of memory from the defendant’s residence, investigators determined that the defendant’s [¶5] During the subsequent forensic examination of the devi ces seized

law enforcement would find child pornography on his computers. child pornography in the past, he did so unintentionally, and he denied that The defendant maintain ed that, if he had inadvertently viewed and downloaded computer through BitTorrent and claimed he was unaware that he could do so. pieces into a complete download. However, he denied sharing files from his takes pieces of files from various users’ computers and reassembles those understanding that BitTorrent was a peer - to - peer file - sharing networ k that computers. The defendant discussed his use of BitTorrent and conveyed his defendant claimed that he deleted any illicit and unwanted images from his the internet and by using a BitTorrent fi le - sharing network. Nonetheless, the defendant admitted that he had viewed child pornography in the past both on loveliness the purity,” but he claimed that he “never went into pedophilia.” T he interests as “paraphili a,” which he defined as an attraction to “the beauty the explained that he was interested in images of teenage models and described his risk - taker” but denied having an interest in child pornography. The defendant [¶4] During the interview, t he defendant stated that he is “a little bit of a

workplace and interviewed him at a nearby police station. of the search warrant, law enforcement contacted the defendant at his computers, memory cards, flash drives, and hard drives. During the execution defendant’s residence, where they seized approximately sixty devices including [¶3] In March p. 2 2018, law enforcement executed a search warrant at the

February p. 2 2018. image s download ed from the defendant’s IP address from December 2017 to address. James continu ed to observe both child erotica and child sexual abuse multiple dates,” James identified the defendant as the subscriber of the IP downloading “multiple images of child sexual abuse and child erotica over address associated with the defendant’s residence. In November 2017, after sexual abuse images from a BitTorrent account on an internet protoco l (IP) Grafton County Sheriff’s Office used investigative software to download child the following facts. Beginning in July 2017, Lieutenant James from the [¶2] The trial court could have found, or the record otherwise establishes,

convictions beyond a reasonable doubt. Accordingly, we affirm. conclude that there was sufficient evidence to support the defendant’s knowin gly possessed and distributed the files specified in the indictments. W e that the trial court erred in finding the evidence sufficient to prove that he p. 3 3

States v. Dillingham, p. 3 320 F. Supp. 3d 809 (E.D. Va. 2018). C l arke, 979 F.3d 82 (2d Cir. 2020); United States v. Fletcher, 946 F.3d 402 (8th Cir. 2019); United peer, file - sharing networks. For further discussion of BitTorrent, see generally United States v. Numerous federal circuit courts of appeals have discussed BitTorrent and other similar peer - to - 1

whether it be an image file, a video file, textual documents, and so on.” download any number of dif ferent files, and they could be any mix of type, files and that, “[b]y downloading a single torrent, a user could potentially expert also explained that any given torrent file could reference thousands of ref erences from other BitTorrent users to assemble a complete download. Th e BitTorrent, BitTorrent obtains the pieces of that torrent file and the files it torrent file and load s it into BitTorrent. After the user loads the torrent file into description that matches the user’s search criteria, the user download s the downloaded through BitTorrent. Once the user has found a torrent fi le with a content itself, acts as an “instruction set” that defines the content to be to search “indexing sites” on the internet. A torrent file, rather than containing must obtain a torrent file, which is generally acc omplished by using keywords downloading a peer - to - peer file - sharing program such as BitTorrent, a user obtain content through the network. According to the expert, after [¶8] The expert witness summarized the steps BitTorrent users follow to

speeds. they share those files with other users in order to facilitate faster download networks such as BitTorrent to function, users not only download files, but be come a source for those same files. He explained that, for file - sharing 1 through which users can download files from other BitTorrent users and then used in this case. The expert testified that BitTorrent is a file - sharing network expert witness testimony to explain BitTorrent and the investigative software [¶7] At the two - day bench trial in August 2022, the State presented

January 2018. from the defendant’s computers using investigative software from July 2017 to distribution charges were based on six images law enforcement downloaded sexual abuse images found on o ne of the defendant’s computers. The images. The possession charges were based on sixteen files containing child counts of possession and six counts of distribution of child sexual abuse [¶6] In November 2018, a grand jury indicted the defendant on sixteen

confirmed that a number of files constituted child sexual abuse image s. reviews of the files found on the defendant’s devices, law enforcement electronic magazine featuring “child erotica.” Based on automated and manual such as “12 - year - old” or “15 - year - old,” an d a “series” of images from a foreign Investigators also found files on the defendant’s computers with file names defendant’s devices with names consistent with child sexual abuse images. p. 4 4

reasonable conclusions based upon the evidence have been excluded. Id. consistent with innocence has been excluded, but, rather, whether all guilt. Id. The proper analysis is not wh ether every possible conclusion establish that the evidence does not exclude all reasonable conclusions except offense is solely circumstantial, a defendant challenging sufficiency must [¶13] When the evidence as to one or more elements of the charged

is de novo. Id. sufficiency of the evidence raises a claim of legal error, our standar d of review context of all the evidence, and not in isolation. Id. Because a challenge to the reasonably drawn therefrom. Id. We examine each evidentiary item in the well as from facts found as the result of other infer ences, provided they can be (2019). The trier of fact may draw reasonable inferences from facts proved as the light most favorable to the State. State v. Saintil - Brown, 172 N.H. 110, 117 doubt, considering all the evidence a nd all reasonable inferences therefrom in could have found the essential elements of the crime beyond a reasonable objectively review the record to determine whether any rational trier of fact [¶12] When considering a challenge to the sufficiency of the evidence, we

specified files without knowing their content or presence on his computer. maintains that he inadvertently downloaded and subsequently shared the distributed the child sexual ab use images specified in the indictments. He finding the evidence sufficient to establish that he knowingly possessed and [¶11] On appeal, the defendant argues that the trial court erred in

No vember 2022, the court denied his motion, and this appeal followed. defendant moved to set aside the verdicts and dismiss all charges. In possession and six counts of distribution of child sexual abuse images. The defendant’s motion and found the defendant guilty on all sixteen counts of child sexual abuse images. In Septem ber 2022, the court denied the prove, beyond a reasonable doubt, that he knowingly possessed or distributed twenty - two charges, arguing that the State presented insufficien t evidence to [¶10] At th e close of the State’s case, the defendant moved to dismiss all

distribution charges. and number of files associated with each torrent relating to each of the six time, associated IP address, torrent info hash, number of torrent file pieces, associated wit h any particular download. He then testified about the download file’s digital fingerprint), the defendant’s IP address, and how many files are connections to the defendant’s computer, the torrent file “info hash” (a torrent defendant’s computer. James explained that the logs documented his investigative software logs documenting files he downloa ded from the [¶9] The State also called James to testify at trial. He testified about p. 5 5

arrest, law enforcement conducted a forensic examination of Clark’s computer, his attempt to meet the fictitious juvenile. Clark, 1 p. 5 58 N.H. at 14. Following his juvenile via the internet, and the defendant was subsequently arrested during communicated with a detective whom he believed to be a fourteen - year - old (2008), to define the element of knowing possession. In Clark, the defendant [¶17] In its order, the trial court relied upon State v. Clark, 158 N.H. 13

drug and exercised dominion and control over it. Id. (quotation omitted). had knowledge of its presence in his vicinity; and (3) he had custody of the doubt that: (1) the defendant had knowledge of the nature of the drug; (2) he stated that RSA 318 - B:26 required the State to prove beyond a reasonable (Supp. 1977) of possessing a controlled drug. Fossett, 119 N.H. at 1 p. 5 56. We introduced sufficient evidence to convict the defendant under RSA 318 - B:26 Fossett, 119 N.H. 155 (1979). In Fossett, we considered whether the State had erred in refusing to apply the test for knowing possession set forth in State v. [¶16] As a preliminary matter, the defendant asserts that the trial court

doubt that the defendant possessed the charged images knowingly. that we need to determine is whether the State proved beyond a reasonable the indictments was assigned to the defendant. Thus, the only remaining issue RSA chapter 649 - A and that, at all times relevant, the IP address specified i n files identified in the indictments constitute child sexual abuse images under acted knowingly. See RSA 649 - A:3, I(a). At trial, the parties stipulated that the conduct,” specifically, the images described in each indictme nt, and that he control [led] a visual representation of a child engaging in sexually explicit had to prove beyond a reasonable doubt that the defendant “possess [ed] or t o convict the defendant of knowing possession of child pornography, the State nature or that such circumstances exist.” RSA 626:2, II(b) (2016). T herefore, a material element of an offense when he is aware that his conduct is of such “[a] person acts knowingly with respect to conduct or to a circ umstance that is visual representation of a child engaging in sexually explicit conduct.” Further, that “[n]o person shall knowingly . . . [b]uy, procure, possess, or control any evidence relating to the sixteen possession charg es. RSA 649 - A:3, I(a) states [¶1 p. 5 5] We first address the defendant’s challenge to the sufficiency of the

A. Possession Charges

item in the context of all of the evidence, not in isolation. Id. at 118. it in the light most favorable to the Stat e, and we examine each evidentiary circumstantial or involves both direct and circumstantial evidence, we consider differently. Id. at 117 - 18. Regardless of whether the evidence is solely conclusion other than guilt had the fact finder resolved credibility issues guilt beyond a reasonable doubt, even if the evidence would support a rational finder’s credibility determinations, is such that a rational trier of fact could find eviden ce, a sufficiency challenge must fail if the evidence, including the fact [¶14] By contrast, when the proof involves both direct and circumstantial p. 6 6

court “dispensed with Fossett ’s req uirement” that the State prove knowledge of [¶21] However, we disagree with the defendant ’s argument that the trial

control of the images.” the images is not dispositive given the evidence of his intentional acquiring and court erred by concluding that “[w]heth er in fact the defendant actually viewed thing possessed or distributed. Therefore, the defendant argues that the trial possess or distribute something, one must know the content or nature of the contained ch ild sexual abuse images. In his view, in order to knowingly State was required to prove, under Fossett, that he knew that those files of the sixteen charged images on his computer was not merely inadvertent, the [¶20] The defendant argues that, in addition to proving that the presence

n or accidental.” child sexual abuse found on the defendant’s computer was neither inadvertent the basis for the possession charges and that “the presence of these images of doubt that the defendant knowingly possessed the sixteen images that formed computer, the trial court found that the State prov ed beyond a reasonable statement[s],” as well as his intentional use of the software he installed on his Based upon the defendant’s “wide ranging and often incriminating found as a result of other inferences which were reasonably drawn therefrom. Clark, and it drew reasonable inferences from facts proved and inferences [¶19] Here, the trial court applied the mens rea analysis we adopted in

fact. Id. inadvertent. Id. at 20. We observed that this inquiry present s a question of over them, or whether the presence of the images on his computer was merely defendant knowingly possessed the images, in that he exerted some control regarding knowing possession of child sexual abuse images is whether a Id. at 19 - 20 (quotation omitted). W e explained that the relevant inquiry “remote and inaccessible parts of the computer” or otherwise had been deleted. no t under his knowing possession or control because the files were found in [¶18] W e rejected the defendant’s argument that the charged files were

indictment. Id. there was no evidence that he possessed it on the date alleged in the one of the images, Clark argued that the image had been deleted and therefore and, thus, that he did not knowingly possess those images. Id. With respect to images were the result of unsolicited “pop - ups” that he immediately deleted, submitted at trial, it was reasonable to conclude that the majority of the illicit h is computer. Id. at 19. Specifically, he alleged that, based upon the evidence images were located in either deleted files or in unallocated hard drive space on sufficient evidence that he knowingly possessed child pornography because the charges, and on appeal, he argued, in part, that the State had failed to present pornography charges against him. Id. Clark was convicted on t he possession which revealed ten images that formed the basis for the possession of child p. 7 7

demonstrated knowing possession.”). clearly indicative of child pornography and clicked on these files to start their downloads Commonwealth, 455 S.W.3d 390, 400 (Ky. 2014) (“The proof that Crabtree chose files with names history evidenced repeated accessing of site cont aining child pornography); Crabtree v. omitted)); United States v. Kain, 589 F.3d 945, 949 (8th Cir. 2009) (defendant’s internet browsing evidence that the user knowingly possessed child pornography.” (brackets and quotation terms specific to child pornography are found on a computer, it is persu asive circumstantial content. See, e.g., United States v. Johnson, p. 7 775 F. App’x 794, 800 (6th Cir. 2019) (“When search browser hi story, or file names may constitute circumstantial evidence of knowledge of a file’s For example, other courts have found that evidence of a defendant’s search terms, internet 2

BitTorrent and downloaded the sixteen charged files to his computer. content from BitTorrent, knowingly obtained child sexual abuse images from the defendant, by intentionally following the steps required to download Ba s ed on this explanation, there was evidence supporting the conclusion that BitTorrent; and (5) finally select a command to download the specific content. BitTorrent; (4) select the files referenced by the torrent to be downloaded by download that torrent file from the indexing site and then load it into (2) “selectively choose” a torrent file that “best matches the description”; (3) search terms to “search for desired co ntent through one of the indexing sites”; computer. Specifically, the expert testified that a user must: (1) use keyword then download the files (that are referenced by the torrent files) onto the user’s obtain and download torren t files, load those torrent files into BitTorrent, and explaining that BitTorrent users must take a series of affirmative steps to charged files. For example, the State’s expert provided extensive testimony a reasonable doubt, that the defendant knowingly possessed the sixteen not inadvertent, there was sufficient evidence for the trial court to find, b eyond files he downloaded to his computer and that the presence of those images was there was evidence that the defendant knew of the nature and contents of the [¶22] Turning to the evidence in this case, w e conclude that b ecause

knowing possession. we find no error in the trial court’s application of the legal standard for downloaded from BitTorrent contained child sexual abuse images. Therefore, circumstantial evidence to prove that the defendant knew that the files he upon Fossett, the trial court nonetheless found that there was sufficient question of his knowledge of their content. Although it did not explicitly rely 2 reasoned that whether the defendant viewed the images is not dispositive of the and acquire[d] the images identified by the State.” T he court correctly The court found that the defendant “knowingly reach[ed] out on the internet knew the content and nature of each of the files charged in the indictments. court’s order as finding sufficient circumstantial evidence that the def endant of the sixteen specific files as charged in the indictments. We read the trial proved beyond a reasonable doubt that the defendant knowingly acquired each N.H. 23 p. 7 7, 242 (2011). In its order, the trial court concluded that the evidence court order is a question of law, which we review de novo. State v. Kay, 162 the content and nature of the files in its order. Our interpretation of a trial p. 8 8

was curious to see “what i s out there,” and that he started “finding stuff” that He conceded that he returned to sites containing child pornography because he child pornography and that he had been addicted to pornography in the past. interview, the defendant admitted that he had on numerous occasions viewed defendant’s March 201 p. 8 8 interview with law enforcement. During that conclusion. At trial, the court admitted into evidence a recording of the had in the past viewed and downloaded child pornography supports our [¶26] In addition, the defendant’s admissi on to law enforcement that he

downloaded. evidence to prove that the defendant exerted control over the files he defendant viewed the images downloaded to his computer, there was sufficient charged in the indi ctments. Therefore, even without evidence that the that there was sufficient evidence that he knowingly possessed the files affirmatively acted to download the charged files to his computer, we conclude files were accessible to the defendant and because there was evidence that he evidence of his intentional acquiring and control of the images.” Becau se the fact the defendant actually viewed the images is not dispositive given the his knowing possession. T he trial court correctly reasoned that “[w]hether in that he accessed or viewed the charged files, there was insufficient evidence of [¶25] Further, we reject the defendant’s argument that, without evidence

that he knew the nature and content of the files he obtained from BitTorrent. while downloading large numbers of files, there was circumstantial evidence have been possible that the defendant downloaded child sexual abuse images exploitation files” on the defendant’s computers. Therefore, although it may “several hundred” torrent files with “names that were consistent with child obtained the charged files, but the forensic investigator testified that there we re downloading. The State did not present evidence regarding how the defendant hundred files, and that a user is presented with those file names before uncommon and that generally, torrent files referenc e between thirty and one number of different files.” However, he explained that this situation is that, “by downloading a single torrent, a user could potentially download any given torrent could actual ly reference thousands of files in one torrent,” and inadvertently downloaded illicit files. Indeed, t he State’s expert testified that “a reference hundreds or thousands of files, it was reasonable to conclude that he [¶24] T he defendant nonetheless argues that, because torrent files may

exerted control over the files he downloaded to his default download folde r. F.3d p. 8 853, 863 ( p. 9 9th Cir. 2006), neither party disputes that the defendant lacks access to and control over those files,” United States v. Kuchinski, 469 because a defendant “lacks knowledge about the. . . files, and c oncomitantly cases in which courts have found insufficient evidence of knowing possession does not dispute, that they were found in his default download folder. Unlike located on the defendant’s computer, the defendant maintains, and the State [¶23] Although there was no evidence regarding where the files were 9

anywhere from preteen girls to single digits, like 8, p. 9 9 - year - old females, and that old,” and a “series” from a forei gn magazine “that featured child erotica, abuse images. The investigator recalled files named “12 - year - old” or “15 - year files on the defendant’s computers with names consistent with child sexual [¶29] Here, the forensic investigator discovered “several hundred” torrent

Hardrick, 766 F.3d 1051, 1055 - 56 ( p. 9 9th Cir. 2014) (citing cases). States v. Morrow, 79 F.4th 1169, 1177 - 78 (10th Cir. 2023); United States v. probative of the defendant’ s in t ent, knowledge, and lack of mistake. See United other, uncharged child pornography files on a defendant’s computer is Clark, 158 N.H. at 20. Other courts have consistently held that evidence of possession of the child sexual abuse images specified in the charges. See saved on his computer’s hard drive, was further evidence of his k nowing acknowledged that the defendant’s possession of additional child pornography, that the defendant knowingly possessed child sexual abuse images, we Additionally, in Clark, when determ ining whether there was sufficient evidence images of child pornography in pursuit of adult pornography. See i d. defendant sought out child pornography and did not accidentally acquire a ccident. See id. We reasoned that the images were relevant to show that the the defendant’s computer were probative of the defendant’s lack of mistake or defendant acted knowingly. W e concluded that uncharged images found on child pornography on a defendant’s computer may be relevant to show that the [¶28] In Howe, 159 N.H. at 377, we also held that evidence of uncharged

knowingly possessed the si xteen charged files. child pornography in the past provided circumstantial evidence that he S imilarly, here, evidence of the defendant’s admissions that he had viewed repeatedly accessed websites containing child pornography. Id. at 376. probative of the defendant’s intent and knowledge because he soug ht out and 77. We reasoned that evidence found on the defendant’s computer was concluded that the record supported the court’s implicit findings. Id. at 376 with respect to the three pron gs for admissibility under Rule 404(b), we 404(b). Id. at 375 - 76. Although we noted that the trial court made no findings uncharged child pornography images under New Hampshire Rule of Evidence defendan t argued that the trial court erred by admitt ing evidence of additional, basis is relevant to show that the defendant acted knowingly. In Howe, the evidence that a defendant seeks out and views child pornography on a regular [¶27] In State v. Howe, 15 p. 9 9 N.H. 366, 376 - 77 (2009), we explained that

that’s probably it.” what you’re doing so when you showed up today I was thinking you know second. . . overnight it’s just floatin’ out there you know anybody could see files using BitTorrent overnight, and that “sometimes I think to myself wait a delete any unwanted or illegal content. He also admitted that he downloaded without looking at it, although he went through his downloads attempting to “hooked into” him. The defendant explained that he often downloaded content p. 10 10

abuse images.” permission or knowledge and download its contents, including child sexual same software to remotely access his computer files at any time without his aware that his use of BitTorrent “permitted other computer users with the court found that the State presented sufficient evidence that the defendant was shared by default is insufficient to establish knowing distribution. The trial that the presence of child pornography in a default download folder that is making files on his computer available to others through BitTorrent. H e argues to prove tha t he knew that he was distributing child sexual abuse images by defendant similarly argues that the State failed to introduce evidence sufficient [¶32] In challenging the sufficiency of the evidence of this offense, the

files described in each indictmen t alleging distribution. the age of eighteen years engaged in sexually explicit conduct,” specifically, the “exchanged or otherwise transferred a visual representation of a child under pornography, the State was required to prove that the defendant knowingly sexually explicit conduct.” To convict the defendant of distribution of child trans fer any visual representation of a child engaging in or being engaged in otherwise transfer, or possess with intent to sell, exchange, or otherwise A:3 - a, I(a) provides that no person shall “[k]nowingly sell, exchange, or to convict him of knowing ly distributing child sexual abuse images. RSA 649 - [¶31] The defendant also challenges the sufficie ncy of the evidence used

B. Distribution Charges

indictments. defendant of knowingly possessing the sixteen files specified in the See id. Accordingly, the record includes sufficient evidence to convict the we conclude that the evidence excluded all reasonable con clusions except guilt. reasonable inferences drawn therefrom in the light most favorable to the State, See Saintil - Brown, 172 N.H. at 117. Thus, viewing the evidence and all have found the elements of knowing possession beyond a reasonable doubt. out child pornography, we cannot conclude that no rational finder of fact would folder, and because there was evidence that the defendant knowingly sought defend ant exercised control of the files he downloaded to his default downloads Because the State presented sufficient circumstantial evidence that the downloaded from his computer as charged in the indictments, we disagree. have found that he was unaware that there were unlawful files on or [¶30] Although the defendant argues th at the trial court could reasonably

downloads contained child pornography. material.” This evidence was probative of the defendant’s knowledge that his not [necessarily] illegal child exploitation material up to child sexual abuse investigator concluded that the defendant’s files “kind of ran the gamut from ranged from anywhere from in bathing suits, to lingeries, to nude.” The p. 11 11

Supp. 3d 809 (E.D. Va. 2018), which, he asse r ts, is factually analogous to the networks. Nonetheless, he relies upon United States v. Dillingham, 320 F. majority view on the issue of “passive distribution” by way of file - sharing [¶36] T he defendant acknowledges that Shaffer and Chiaradio state the

taken, distribution has occu rred.” Chiaradio, 684 F.3d at 282. consciously makes files available for others to take and those files are in fact that, regarding the element of knowing distribution, “[w]hen an individual as BitTorrent, we too are persuaded by the reasoning in Shaffer. We agree sexual abuse images in the context of a peer - to - peer file - sharing network such [¶35] Although we have not yet addressed knowing distribution of child

61 (Colo. App. 2012). v. State, 816 S.E.2d 796, 802 (Ga. Ct. App. 2018); People v. Rowe, 318 P.3d 57, State, 203 A.3d 23, 31 - 33 (Md. Ct. Spec. App. 2019) (collecting cases); Maddox 2017), as have appellate courts in our sister states, s ee, e.g., Redkovsky v. 82, 94 - 95 (2d Cir. 2020); United States v. Stitz, 877 F.3d 533, 537 - 38 (4th Cir. adopted the reasoning in Shaffer, s ee, e.g., United States v. Clarke, 979 F.3d from his shared folder. Id. at 1224. Numerous federal courts of appeals have enforcement that he knew other people had downloaded child pornography not select a folder that was kept pr ivate and that he had admitted to law affirmed the defendant’s conviction based upon evidence that the defendant did gas station is to do just that.” Shaffer, 472 F.3d at 12 23 - 2 4. The court is in the busines s of ‘ distributing ’. . . gasoline; the raison d’etre of owning a serve, or . . . passive, we do not doubt for a moment that the gas station owner a self - serve gas station, explaining that “[j] ust because the operation is self - Circ uit in Shaffer analogized passive distribution over a peer - to - peer network to [¶34] In an opinion authored by then - J udge Neil Gorsuch, the Tenth

child pornography to an undercover law enforcement officer. See i d. to support the district court’s finding that the defendant knowingly transmitted files available for sharing, the court concluded that the evidence was sufficient downloaded LimeWire, a peer - to - peer file - sharing network, and chose to make those files is irrelevant.” Id. Based upon evidence that the defendant explained that “[t] he fact that the defendant did not actively elect to transmit are in fact taken, distribution has occurred.” Id. at 282. The Chiaradio C ourt individual consciously makes files available for others to take and those files Shaffer, 472 F.3d p. 12 1219 (10th Cir. 2007), the court held tha t, “[w]hen an 2252(a)(2). Relying on the Tenth Circuit’s reasoning in United States v. defendant knowingly distributed child pornography under 18 U.S.C. § Circuit considered w hether there was sufficient evidence to prove that the 265, 281 - 82 (1st Cir. 2012), the United States Court of Appeals for the First downloaded by others. For example, in United States v. Chiaradio, 684 F.3d folder is guilty of knowingly distributing child pornography when those files are whether a defendant who places files containing child pornography in a shared [¶33] Numerous federal courts of appeals have addressed the issue of 12

and the possession count was dismisse d. Id. at 811. 2252(a)(4)(b), the government decided to dismiss that particular count immediately before trial defendant was originally indicted with possession of child pornography in violation of 18 U.S.C. § United States v. Dillingham, 320 F. Supp. 3d 809, 814 - 15 (E.D. V a. 2018). Although the point he knowingly possessed the child pornography that he was charged with distributing. In his motion, Dillingham acknowledged that the evidence was sufficient to prove that at some 3 network, functions by obtaining pieces of files from its users, and, thus, that from his computer, he agreed with James that BitTorrent, as a file - sharing his own computer. In addition, a lthough the defendant denied shar ing files download files and obtain faster download speeds, he agreed to share files from some evidence that the defendant understood that, by using BitTorrent to download. Although his statements are not entirely clear, the State presented BitTorrent takes pieces of files from users to assemble a complete file sharing files from his computer. The defendant repeatedly explained that defendant had an adequate understanding of BitTorrent to realize that he was [¶38] Here, as in Dillingham, the State presented evidence that the

those files to others once they were downloaded.” Id. at 818. uTorrent software were accessible to others . .. and could therefore ‘ distribute ’ that the defendant knew “that files on his computer downloaded through of the defenda nt’s familiarity with uTorrent for a juror to reasonably conclude uTorrent. See i d. Ultimately, the court ruled that there was sufficient evidence his part or whether he was agreeing with law enforcement’s explanation of defendant understood that sharing could occur without affirmative action on uTorrent, although the court acknowledged that it was not clear whe ther the defendant’s statements that he understood that files could be shared through defendant’s understanding of uTorrent, the Dillingham C ourt relied upon the accessible to others. Id. at 817 - 18. I n re aching its conclusion regarding the sufficient to prove that the defendant knew that files in his shared folder were one most germane here, the court found that the government’s evidence was [¶37] However, with respect to the second sufficiency inquiry, and the

the defendant’s conviction for knowing distribution of child porno graphy. Id. distribution conviction were child pornography and, on that basis, it set aside reasonable doubt that the defendant knew that the files at issue in h is concluded that the government’s evidence was insufficient to prove beyond a available to others. Id. at 815 - 18. As to the first inquiry, the district court that uTorrent, a peer - to - peer file - sharing sof tware, made his shared files knowingly possessed the images that were allegedly distributed, and (2) knew considered the sufficiency of the evidence regarding whether the defendant: (1) 2252(a)(2). Dillingham, 320 F. Supp. 3d at 815 - 18, 828. The court separately 3 pornography that he was charged with distributing in violation of 18 U.S.C. § reasonable doubt that the defendant knew that he possessed the child that the prosecution had failed to produce evidence that established beyond a granted the defendant’s motion to set aside his convictions after concludin g case at hand. His reliance is misplaced. In Dillingham, a federal district court p. 13 13

herself and did not participate in further review of the case. HANTZ MARCONI, J., sat for oral argument but subsequently disqualified M AC DONALD, C.J., and BASSETT and COUNTWAY, JJ., concurred;

guilt. See Saintil - Brown, 172 N.H. at 117. establish that the evidence does not exclude all reasonable conclusions except most favorable to the State, we conclude that the defendant has failed to considering all of the evidence and taking inferences therefrom in the light scienter for knowing distribution. See Chiaradio, 684 F.3d at 282. Thus, concluded beyond a reasonable doubt that the defendant had the required [¶41] Based on this evidence, the trial c ourt could rationally have

folder and subsequently shared files from that folder with other users. knowingly downloaded child sexual abuse images into his shared downloads From this e vidence, a reasonable fact finder could conclude that the defendant that was located in a torrent folder called “Asian girls [Y.T.] nine - year - old.” in July 2017, for example, he downloaded a file from the defendant’s computer interview. In reviewing his investigative software records, James testified that, sexual abuse images as recently as a few weeks before the March 20 18 images during the summer of 2017, and he suggested that he had seen child internet and through BitTorrent, he estimated that he came across such the defendant did not recall precisely when he viewed these images on the that he had viewed child pornography aligned with this time period. Although 2018. The defendant’s admissions during his interview with law enforcement investigative software on numerous occasions between July 2017 and March downloaded child sexual abuse images from the defendant’s computer using that he shared files by using BitTorrent, James testified that he successfully [¶40] In addition to evidence regarding the defendant’s understanding

downloads folder that then were available to others to dow nload. defendant affirmatively downloaded files from BitTorrent into his shared sufficient evidence such that a rational finder of fact could conclude that the content that then immediately b ecomes available to others. Thus, there was BitTorrent involves a series of affirmative steps, which include s downloading witness explained that the process by which a user obtains content through act ually uploading content or sharing content to other users.” The expert “indicators within the interface of the BitTorrent client to show that you’re sharing content back out onto the network.” He also testified that there are licensing agreement clearly states that “by use of this program, you will be BitTorrent is to share content with other users and that the BitTorrent user [¶39] Further, the State’s expert explained that the primary purpose of

noted this recognition “may be self - incriminating for me.” smart conc lusion” and that “that’s probably how it works,” although he then its users share files from their own computers. He agreed that “that’s [a] very