PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, and 

Powell, JJ., and Koontz, S.J. 

DAVID KELLEY 

 OPINION BY 

v. Record No. 140837 JUSTICE ELIZABETH A. McCLANAHAN 

 April 16, 2015 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 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 software1

 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 

 

1

 "Peer-to-peer file-sharing software enables a communal 

network which exist[s] – as the name 'file-sharing' suggests – 

for users to share, swap, barter, or trade files between one 

another." United States v. Wheelock, 772 F.3d 825, 832 n.4 

(8th Cir. 2014)(internal quotation marks and citation omitted). 
2

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 

 

2

 See Ares Free, What is Ares? 

http://www.aresfree.net/what-is-ares (last visited March 20, 

2015). 
3

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 were confirmed by 

him to contain child pornography. The IP address was 

subsequently traced to Kelley's home. 

 On May 18, 2012, at approximately 6:15 a.m., members of 

the ICAC Task Force and the Harrisonburg Police Department 

executed a search warrant upon Kelley's home. Investigator 

Greg Miller, accompanied by another investigator, both with the 

Harrisonburg Police Department, spoke to Kelley in his bedroom. 

Kelley acknowledged he was familiar with file-sharing software 

and Ares in particular. Kelley told Miller he uses Ares "for 

music," explained "how it worked," and said the files he stored 

were "on a shared folder located on his desktop." 

 When Miller informed Kelley that child pornography was 

found on his computer, Kelley said he was in the process of 

downloading child pornography onto his laptop when they arrived 

and initially claimed that "[j]ust now when you all knocked on 

the door was the first time I've downloaded anything in the 

folder," adding that they would find the videos in his shared 

folder. Kelley directed Miller to his laptop computer, which 
4

was found in his bedroom closet, in a backpack underneath some 

clothing. 

 Kelley ultimately admitted he had used Ares on previous 

occasions to download child pornography. When asked about the 

specific date on which Special Agent Morris accessed the two 

videos from Kelley's computer, Kelley responded, "You would 

know." When Miller asked Kelley how long he had been "dealing 

child pornography," Kelley said "maybe four years." Kelley 

repeatedly told Miller that he did not share the files but 

downloaded them and "just deleted [the files] out of the share 

folder." 

 At trial, Kelley called Daniel Reefe to testify as an 

expert in computer forensics. Reefe confirmed that Ares 

creates the "My Shared Files" folder as a default option upon 

installation of the program. Therefore, when using Ares, files 

selected will automatically download into the shared folder 

unless the user chooses to place the files elsewhere to prevent 

sharing by other users. 

 Kelley was convicted by the jury of two counts of 

distribution of child pornography and ten counts of possession 

of child pornography in violation of Code § 18.2-374.1:1.3

 The 

 

3

 Investigator Christopher O'Neill, a computer forensics 

expert with the Harrisonburg Police Department, performed a 

preliminary examination on Kelley's laptop computer. O'Neill 
5

Court of Appeals, by a per curiam order, denied Kelley's 

petition for appeal. 

II. ANALYSIS 

 On appeal, Kelley argues that the evidence was 

insufficient "to prove distribution of child pornography based 

upon the presence and automatic actions of a peer-to-peer 

program on Kelley's computer." 

 When the sufficiency of evidence is challenged on appeal, 

we review the evidence in the "light most favorable" to the 

Commonwealth, as the party prevailing at trial. Commonwealth 

v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This 

principle requires us to "discard the evidence of the accused 

in conflict with that of the Commonwealth, and regard as true 

all the credible evidence favorable to the Commonwealth and all 

fair inferences to be drawn therefrom." Parks v. Commonwealth, 

221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis, 

internal quotation marks and citation omitted). We will not 

 

found ten files containing child pornography in the shared 

folder on Kelley's laptop. Special Agent Hugh Thatcher, Jr., a 

member of the Electronic Crimes Task Force of the United States 

Secret Service, performed a full forensic examination on 

Kelley's laptop computer and confirmed O'Neill's findings. 

These ten files formed the basis of indictments against Kelley 

on ten charges of possession of child pornography. Kelley's 

convictions on these charges are not before us on appeal. 
6

set aside the trial court's judgment unless it is "plainly 

wrong or without evidence to support it." Code § 8.01-680; 

Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 

(2005). 

 Kelley was convicted of two counts of distribution of 

child pornography in violation of Code § 18.2-374.1:1(C)(i). 

This statute provides, in pertinent part, that any person who 

"reproduces by any means, including by computer, sells, gives 

away, distributes, [or] electronically transmits" child 

pornography shall be guilty of violating said statute. 

 The evidence is undisputed that Kelley downloaded the Ares 

software onto his laptop and used Ares to search for and 

download the child pornography files that were accessed by 

Morris from Kelley's shared folder. As Morris explained, the 

whole purpose of Ares is to facilitate sharing of files among 

the network of users. 

By downloading Ares, which is a peer-to-peer 

file-sharing software, it's inherent that . . . 

peer-to-peer users know that they're sharing 

files amongst their peers. And by having those 

in a shared folder available for me to view and 

not changing the settings or having the settings 

so that [Kelley] would download or make available 

to share those [Kelley] essentially allowed me 

[access]. 

Thus, in downloading the child pornography files into his 

shared folder, Kelley made the files available for sharing with 

Morris. 
7

Kelley could have prevented other Ares users, including 

Morris, from downloading those files from Kelley's computer, 

but he did not do so. According to Morris, 

I searched like any other user would, identified 

that he had those [files] to share and downloaded 

those. Some folks, which was not the case here, 

can actually stop and interrupt that download. 

They often times do that. In this particular 

case I was able to download two complete files 

without interruption or without [Kelley] stopping 

that or prohibiting that share. 

 We reject Kelley's contention that the evidence was 

insufficient to prove distribution because the files were 

shared "without any volition on the part of Kelley." Kelley 

chose to download the Ares software onto his laptop computer by 

which he voluntarily participated in peer-to-peer file-sharing 

of child pornography. Whether Kelley's shared folder 

containing the child pornography was created as a default 

option by the software or by Kelley himself, the child 

pornography files were, in fact, downloaded by Kelley into his 

shared folder and, thereby, made available to other users of 

Ares. 

Although Kelley could have changed the settings on his 

laptop to preclude sharing of his downloaded files or prevented 

Morris from downloading the files from Kelley's shared folder, 

he chose not to do so. Kelley was familiar with the operation 

of the software, having used it before to download music, and 
8

he even explained to Miller "how it worked." Therefore, 

reasonable jurors could conclude that Kelley, by his own 

volition, shared the child pornography files with Morris. 

Accordingly, the evidence was sufficient for the jury to find 

that Kelley reproduced by any means, including by computer, 

sold, gave away, electronically transmitted or distributed 

child pornography in violation of Code § 18.2-374.1:1(C)(i). 

III. CONCLUSION 

 For the foregoing reasons, we will affirm the judgment of 

the Court of Appeals. 

Affirmed.