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Fone v. State

Court of Special Appeals of Maryland

June 6, 2017

JOHN R. FONE
v.
STATE OF MARYLAND

          Eyler, Deborah S., Arthur, Wilner, Alan M. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Eyler, Deborah S., J.

         A jury 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 probation.

         The 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 were shared?
III. Was the evidence legally sufficient to support the appellant's convictions?

         For the following reasons, we shall affirm the judgments of the circuit court.

         FACTS AND PROCEEDINGS

         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.

         MCPD 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.

         The 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.

         Detectives 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."[1]

         The 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 "NudistJohn6969."

         Detective 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."

         The 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.

         Detective 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.

         As he 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.

         Detective 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.

         On 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 townhouse.

         On 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.

         Before trial, the State entered a nolle prosequi on the possession counts.

         A four 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 redactions.

         Detective 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.

         Detective 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 accessed.

         In his 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.

         The appellant's motion for judgment of acquittal at the close of all the evidence was denied.

         After conviction and sentencing, the appellant noted a timely appeal. We shall include additional facts in our discussion of the issues.

         DISCUSSION

         I.

         Denial of the Motion to Suppress

         In his 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.[2]

         At the suppression hearing, the warrant application was introduced into evidence by joint stipulation. No testimony or other evidence was introduced.

         The 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 ...


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