JOHN R. FONE
STATE OF MARYLAND
Deborah S., Arthur, Wilner, Alan M. (Senior Judge, Specially
Deborah S., J.
in the Circuit Court for Montgomery County convicted John R.
Fone, the appellant, of ten counts of distribution of child
pornography. The court sentenced him to five years for each
count, with the sentences to run concurrently, and suspended
the sentences in favor of a five-year term of supervised
appellant presents four questions for review, which we have
condensed and rephrased as three:
I. Did the circuit court err by denying his motion to
suppress from evidence pornographic images of children seized
in a search of his laptop computer in his townhouse?
II. Did the trial court err or abuse its discretion by
permitting the State's expert witness to opine about
certain activity on the appellant's laptop computer
immediately before and after pornographic images of children
III. Was the evidence legally sufficient to support the
following reasons, we shall affirm the judgments of the
Child Exploitation Unit ("CEU") operates within the
Special Victims Investigations Division ("SVID") of
the Montgomery County Police Department ("MCPD").
On January 2, 2015, the CEU received information from the
National Center for Missing and Exploited Children
("NCMEC") that an image of child pornography had
been attached to an email on a gmail account with the address
CaptainJRF@gmail.com, accessed from an Internet Protocol
("IP") address in Germantown. The NCMEC had
received that information from Google, which operates gmail.
Detective Louvenna Pallas, who was working in the CEU,
investigated the information and on March 18, 2015, applied
for and obtained a search warrant for the appellant's
townhouse in Germantown. That same day, she and MCPD
Detective Robert Onorio went to the townhouse to execute that
search warrant. They knocked on the door and the appellant
answered. They asked if they could come inside and speak to
him, and he consented.
detectives sat down with the appellant at his dining room
table and talked to him for over an hour. With the
appellant's consent, Detective Pallas audio recorded
their conversation. The appellant told them he was married
with two adult children, neither of whom lived at home. His
wife had been diagnosed with Alzheimer's disease six
years earlier, and he was her primary caregiver. She was
upstairs sleeping during the interview.
Pallas and Onorio asked the appellant if he had a gmail
account; he replied that he did. He identified his email
address as "CaptainJRF6969@gmail.com." They asked
if he had any other email accounts, such as an account with
an address of CaptainJRF@gmail.com. He replied that he
"might have had that."
detectives inquired about the appellant's internet usage.
He acknowledged having pornography on his computer but denied
having any "inappropriate images of children." He
primarily used a Gateway laptop computer
("laptop"), which he kept in the basement of the
townhouse. He said he spent a couple of hours each day in
online chatrooms and also spent time on Yahoo! Messenger,
which is an instant messaging program. He had an account with
Flickr, an online photo storage site, under the name
Onorio asked the appellant whether they could search his
laptop and he agreed. Detective Onorio accompanied the
appellant to the basement of the townhouse to retrieve the
laptop. While the interview continued, Detective Onorio
inspected the contents of the laptop. He received permission
from the appellant to run a computer program to scan the
laptop for child pornography. That program did not work,
however, so Detective Onorio carried out a manual search of
the laptop. The appellant told the detectives he engaged in
"fantasy chats" on the laptop about sexual activity
with children. He denied ever having exchanged any child
pornography images or videos. He said that on one occasion
the previous year a "guy" had sent him two images
that he had looked at for "about 10 seconds" and
then deleted. One image depicted an infant and the other
image depicted "a child in pain."
appellant said he "d[id] it all" in caring for his
wife. His sister had taken care of his wife "once,
" when he was out of town, but that time he had
"left [his wife] at [his] sister's house." His
son lived in Seattle. A "good friend" who lived in
Phoenix also had taken care of his wife for him.
Onorio located images of what the CEU calls "child
erotica" on the laptop. "Child erotica" are
images of children in "sexually exploitative positions
and dress" that do not meet the definition of child
pornography. He asked the appellant if it was "fair to
say [he had] a sexual attraction to children in a fan[tasy]
component?" The appellant replied, "Not to
children, well yeah." Detective Onorio inquired about
the appellant's "age of attraction, " noting
that his internet searches suggested he was attracted to
children from infancy through their teenage years. The
appellant replied, "Yeah." He claimed there was no
chance that he had child pornography on his laptop, however.
continued his manual search of the laptop, Detective Onorio
located an image he believed to be child pornography. At that
point, he stopped the interview and advised the appellant
that the detectives had a search warrant for his house. The
detectives seized the laptop and an external hard drive for
it that was in the basement where the laptop had been. They
also seized a computer tower for a desktop computer that was
in the master bedroom. The appellant was not placed under
arrest at that time.
Onorio made copies of the hard drives from the devices seized
at the appellant's townhouse and provided the copies to
the MCPD Electronic Crimes Unit ("ECU"). Detective
William Heverly, with the ECU, analyzed the digital copies.
From the appellant's laptop, he located ten images of
child pornography and numerous internet searches, websites
visited, and chat sessions that were associated with child
pornography. The ten images had been sent by the appellant to
an unknown third party on August 24, 2014.
September 24, 2015, the appellant was arrested and charged
with ten counts of possession of child pornography and ten
counts of distribution of child pornography. He later filed a
pre-trial motion to suppress the evidence seized from his
April 8, 2016, the court held a suppression hearing. Among
other things, the appellant argued that the search warrant
was issued based upon information that was stale and
therefore did not give rise to probable cause. The court
denied the suppression motion, rejecting the staleness
argument and ruling, in the alternative, that even if
probable cause was lacking the detectives relied upon the
warrant in good faith. The appellant filed a motion for
reconsideration, which was denied.
trial, the State entered a nolle prosequi on the
day jury trial commenced on May 2, 2016. The State called
Detective Pallas, Detective Onorio, and Detective Heverly,
who was accepted as an expert in digital forensic analysis.
The audio recording of the appellant's March 18, 2015
interview with the police was played for the jury, with minor
Heverly testified that there were two user accounts
associated with the appellant's laptop: one under the
name "John" and one under the appellant's
wife's name. The appellant's wife's account was
password protected and had been accessed just 7 times, with
the last access in January 2013. The "John" account
was not password protected and had been accessed 2, 937
times. The ten images of child pornography that formed the
basis for the charges had been accessed from the
"John" account on the laptop and sent to an unknown
third party via Yahoo! Messenger on August 24, 2014, between
3:41 p.m. and 3:47 p.m.
Heverly determined that fifteen minutes before that
six-minute Yahoo! Messenger session, a user of the
"John" account had accessed the Flickr account the
appellant identified as his during the police interview and
the CaptainJRF6969@gmail.com gmail account, which the
appellant also had identified as his. Five minutes after the
end of the Yahoo! Messenger session, a user of the
"John" account had accessed that same gmail
account. A user of the "John" account also had
accessed a particular chatroom before and after the Yahoo!
Messenger session. Detective Heverly further testified that
the external hard drive seized from the appellant's
townhouse had been plugged into the laptop before and after
the Yahoo! Messenger session and images from it had been
case, the appellant presented his own digital forensic
analysis expert, Patrick Siewart, who testified that it was
possible that a user other than the appellant had uploaded
and sent the ten child pornography images. He further
testified that laptops are portable, and therefore the images
in question could have been sent when the appellant's
laptop was outside of Montgomery County or outside of
Maryland. He suggested that the MCPD should have subpoenaed
the IP address logs for the appellant's internet service
provider ("ISP") for August 24, 2014, to determine
whether the laptop was connected to the internet at the
appellant's townhouse on that date.
appellant's motion for judgment of acquittal at the close
of all the evidence was denied.
conviction and sentencing, the appellant noted a timely
appeal. We shall include additional facts in our discussion
of the issues.
of the Motion to Suppress
pre-trial motion to suppress the evidence the police seized
from his townhouse, the appellant argued that the warrant was
lacking in probable cause for several reasons, including, as
pertinent here, that the affidavit in support of the warrant
application "fail[ed] to state the date of the events
relied upon to show probable cause . . . [making it
impossible] to determine the remoteness in time between the
facts observed and the issuance of the warrant, rendering the
probable cause stale." In other words, the appellant
maintained that because the warrant application did not
disclose when the image of child pornography was attached to
the CaptainJRF@gmail.com account, that event was not shown to
be close enough in time to the date of the warrant
application not to be stale.
suppression hearing, the warrant application was introduced
into evidence by joint stipulation. No testimony or other
evidence was introduced.
warrant application was sworn out by Detective Pallas on
March 18, 2015, and the warrant was issued and executed that
same day. In the affidavit, Detective Pallas detailed her
experience, identified the ...