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Kelley v. Commonwealth

Supreme Court of Virginia

April 16, 2015

DAVID KELLEY
v.
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA.

Affirmed.

W. Andrew Harding (Convy & Harding, on briefs), for appellant.

John W. Blanton, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, and Powell, JJ., and Koontz, S.J.

OPINION

ELIZABETH A. McCLANAHAN, JUSTICE

A jury convicted David Kelley of two counts of distributing child pornography in violation of Code § 18.2-374.1:1. Kelley contends the evidence was insufficient to prove distribution because the peer-to-peer software[1]

Page 673

he used to access and download child pornography automatically placed the child pornography files into a shared folder accessible to other users of the software. We will affirm the judgment of the Court of Appeals upholding the convictions.

I. BACKGROUND

Special Agent Chad Morris is employed by the Virginia State Police and assigned to the Northern Virginia/D.C./Metro Area Internet Crimes Against Children (ICAC) Task Force. In connection with his work on the ICAC Task Force, Morris utilizes Ares, a peer-to-peer file-sharing program, to identify the Internet Protocol (IP) addresses of computers with files believed to contain child pornography available to share.

As explained by Morris in his testimony given in this case, Ares is free software that, once installed on a computer, allows the exchange of files through the Internet.[2] Upon initiating Ares, the user enters search terms to identify files of other peer-to-peer users online that meet the search criteria. Ares then displays a list of files available from other computers, and the user may select specific files to download. As the files are downloaded, they are placed into a shared folder generally designated on the user's computer directory as " My Shared Files." This folder is accessible to other peer-to-peer users unless the settings are changed by the user to preclude access. According to Morris,

the whole basic concept of peer-to-peer, is you borrow or download files from other folks and you now possess those, but also share it with the rest of the community, otherwise you're not really much use to your other peers. So you use peer-to-peer software to download files from other users and share files with those same common users.

On April 25, 2012, in the course of using Ares to investigate distribution of child pornography on the Internet by persons in the Harrisonburg area, Morris identified an IP address with 38 files believed to contain child pornography available to share on the Ares network. Upon sending a request to the identified computer to share two of these files, Morris was permitted to download both files, which ...


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