In the Missouri Court of Appeals 

Eastern District

DIVISION ONE 

STATE OF MISSOURI, ) No. ED105824

 )

Respondent, ) Appeal from the Circuit Court of 

 ) St. Charles County

vs. ) 

 ) 

DONALD A. FODRINI JR., ) Honorable Daniel G. Pelikan

 )

Appellant. ) Filed: March 12, 2019 

 

Opinion

Donald A. Fodrini Jr. (“Fodrini”) appeals from the judgment of the Circuit Court of St. 

Charles County following a bench trial in which he was convicted of one count of promoting child 

pornography in the second degree and twenty-four counts of possession of child pornography. On 

appeal, Fodrini only contests his conviction for promoting child pornography in the second degree. 

Fodrini argues the circuit court erred in finding him guilty of this offense because the court did not 

require the State to prove Fodrini’s culpable mental state when he unintentionally and 

unknowingly provided child pornography to a police officer. We affirm.

Factual and Procedural History

Viewed in the light most favorable to the circuit court’s judgment, the following evidence 

was presented at trial. See State v. Chaney, 460 S.W.3d 13, 14 (Mo. App. E.D. 2014).

In November 2014, Sergeant Adam Kavanaugh (“Sergeant Kavanaugh”) of the St. Louis 

County Police Department identified a computer that was offering to distribute child pornography 
2

over the internet by means of a peer-to-peer file-sharing program called Ares. Sergeant Kavanaugh 

successfully downloaded three images from the computer, two of which he determined were child 

pornography. After investigating the internet protocol (or “IP”) address associated with the 

computer, police confirmed the IP address was located at Fodrini’s residence. 

Based on this evidence, on February 3, 2015, detectives with the St. Charles County Cyber 

Crime Task Force executed a search warrant at Fodrini’s residence. The detectives informed 

Fodrini that they were investigating the possession and distribution of child pornography, and were 

looking for electronic devices in his home. During the search, the detectives seized Fodrini’s 

personal computer as well as a thumb drive he had hidden in a nightstand. After agreeing to speak 

with the detectives, Fodrini admitted installing the Ares program on his computer, and using Ares 

to search for and download files containing child pornography. However, Fodrini stated he did not 

realize that Ares was a file-sharing program, or that other Ares users could access and download 

child pornography from his computer. Fodrini stated he had since deleted Ares from his computer 

because he “tried it” and “didn’t really understand it.” Fodrini could not recall when he deleted 

Ares, though, he stated he had the program for four or five months. The detectives subsequently 

arrested Fodrini.

A forensic examination of Fodrini’s computer revealed he had previously installed Ares 

and downloaded files containing child pornography from other Ares users. While the Ares program 

and the files had since been deleted from Fodrini’s computer, police were able to recover evidence 

of complete and incomplete downloads of child pornography as well as the graphic names of the 

files. Police also recovered the search terms Fodrini used to search for child pornography within 

Ares. Additionally, police found various terms Fodrini used to search Google for child 

pornography as well as bookmarked images depicting child pornography. Moreover, a forensic 
3

examination of the thumb drive revealed it contained 4,200 images1 and approximately twentyseven videos of child pornography.

The State charged Fodrini with one count of promoting child pornography in the second 

degree, in violation of Section 573.035 RSMo 2000 (Cum. Supp. 2009),2 and twenty-four counts 

of possession of child pornography, in violation of Section 573.037 RSMo 2000 (Cum. Supp. 

2013). A bench trial was held. The State presented evidence that the purpose of the Ares program 

is to download and share files with other Ares users. Once Ares is installed, files downloaded 

through the program are automatically transferred to a “shared” folder on the user’s desktop and, 

by default, are made available to other Ares users to download. Although the user has the option 

to change the default settings to prevent file sharing, in this case, Fodrini did not change the 

settings, which made the files in his “shared” folder available to other Ares users, and allowed

Sergeant Kavanaugh to access and download the images of child pornography. By contrast, 

Fodrini’s theory of defense was that he was unaware of Ares’s default settings or that it was a filesharing program, and, therefore, he could not have knowingly provided child pornography to 

Sergeant Kavanaugh.3

Prior to entering judgment, the circuit court asked the parties for additional briefing to 

address the issue of “how the use of a peer-to-peer file sharing network in this particular case 

complies with promoting, possession with intent to promote, and/or to promote child 

pornography.” After the parties submitted their briefs, the circuit court found Fodrini guilty on all 

counts. At the sentencing hearing, the circuit court stated, “The facts in the trial were thin on 

 1 The thumb drive contained over 12,000 pornographic images, 4,200 of which were identifiable child pornography 

as they showed genitalia. A majority of the remaining images were a mixture of child erotica and images of children 

in various stages of undress.

2 All further statutory references are to RSMo (2000), unless otherwise indicated.

3 A more detailed description of the Ares program as well as additional relevant facts will be set forth as needed in the 

Discussion section of this Opinion.
4

promoting but . . . it was resolved by reference to case law and statute.” The circuit court sentenced 

Fodrini to concurrent terms of one year imprisonment for promoting child pornography, and ten 

years’ imprisonment for each count of possession of child pornography. This appeal follows. 

Standard of Review

In reviewing the sufficiency of the evidence in a court-tried case, an appellate court’s role 

is limited to determining whether the State presented sufficient evidence from which a trier of fact 

could have reasonably found the defendant guilty. State v. Brooks, 446 S.W.3d 673, 674 (Mo. banc 

2014). This Court accepts as true all evidence favorable to the State, including all favorable 

inferences drawn therefrom, and disregards all evidence and inferences to the contrary. State v. 

Wurtzberger, 265 S.W.3d 329, 335 (Mo. App. E.D. 2008). Circumstantial evidence is given the 

same weight as direct evidence in considering the sufficiency of the evidence. State v. Cerna, 522 

S.W.3d 373, 378 (Mo. App. E.D. 2017).

“When reviewing the sufficiency of evidence supporting a criminal conviction, the Court 

does not act as a ‘super juror’ with veto powers, but gives great deference to the trier of fact.” State 

v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011) (quoting State v. Chaney, 967 S.W.2d 47, 52 (Mo. 

banc 1998)). Further, “this Court will not weigh the evidence anew since ‘the fact-finder may 

believe all, some, or none of the testimony of a witness when considered with the facts, 

circumstances and other testimony in the case.’” State v. Freeman, 269 S.W.3d 422, 425 (Mo. 

banc 2008) (quoting State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002)).

Discussion

In his sole point on appeal, Fodrini argues the circuit court erred in finding him guilty of 

promoting child pornography in the second degree because the court did not require the State to 
5

prove Fodrini’s culpable mental state when he unintentionally and unknowingly provided child 

pornography to a police officer. We disagree.

A person commits the offense of promoting child pornography in the second degree “if 

such person possesses with the intent to promote or promotes child pornography of a minor under 

the age of eighteen or obscene material portraying what appears to be a minor under the age of 

eighteen.” Section 573.035.1. Here, the State charged Fodrini with violating Section 573.035 

based on the allegation that Fodrini, “knowing its content and character, promoted child 

pornography by providing to another person, images that consisted of a visual depiction of two 

digital images showing a minor under the age of eighteen years as a participant in sexually explicit 

conduct by a lascivious exhibition of their genitals[.]” 

The term “promote” is defined by statute to mean “to manufacture, issue, sell, provide, 

mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or 

advertise, or to offer or agree to do the same, by any means including a computer[.]” Section 

573.010(15) RSMo 2000 (Cum. Supp. 2007). Additionally, while not statutorily defined, the 

dictionary defines “provide” as “to make ready” or “to supply for use.” WEBSTER’S THIRD NEW 

INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1827 (2002).

At the outset, we note the parties contest whether Section 573.035 requires the State to 

prove Fodrini acted with a culpable mental state when he provided child pornography to Sergeant 

Kavanaugh. Fodrini argues Section 573.035.1 does not expressly require proof of a culpable 

mental state, and, therefore, the circuit court should have imputed a mental state of “purposely or 

knowingly,” pursuant to Section 562.021.3. 4 As such, Fodrini maintains the circuit court 

 4 Section 562.021.3 provides, in relevant part: “[I]f the definition of any offense does not expressly prescribe a culpable 

mental state for any elements of the offense, a culpable mental state is nonetheless required and is established if a 

person acts purposely or knowingly; but reckless or criminally negligent acts do not establish such culpable mental 

state.”
6

misapplied Section 573.035 when it failed to require the State prove he purposely or knowingly

promoted child pornography. By contrast, the State argues that, because the legislature assigned a 

mental state to the penalty enhancement provision in Section 573.035.2, 5 as well as the first 

alternative in Section 573.035.1 (possession with intent to promote), but not to the second 

alternative of actual promotion, the legislature did not intend for the State to have the burden of 

proving Fodrini acted knowingly.

While we acknowledge the parties’ arguments, we need not address this issue to resolve 

the case. Assuming without deciding that the State was required to prove Fodrini acted with a 

culpable mental state, we find there was sufficient evidence from which the circuit court could 

have found Fodrini knowingly provided child pornography to Sergeant Kavanaugh in that he 

understood how to operate Ares, was aware of its file-sharing capabilities, and used the program 

in a way that made child pornography readily available to other users to download. See State v. 

Tremaine, 315 S.W.3d 769, 773 (Mo. App. W.D. 2010) (similarly declining to resolve the issue of 

whether proof of defendant’s knowledge was necessary to sustain a conviction for promoting child 

pornography in the first degree because there was sufficient evidence that defendant was aware he 

was making child pornography available to others through a peer-to-peer file-sharing program).

We begin our analysis with a brief description of how the Ares program works. Ares is a 

peer-to-peer file-sharing program that allows users to share digital files, such as pictures, videos, 

or documents, with one another. A user begins by downloading the program onto his computer 

from the Ares website. During the installation process, Ares walks the user through a step-by-step 

set-up process, which provides information about the file-sharing program and requires the user to 

agree to certain terms. Once the program is installed, an Ares user wishing to search for available 

 5 Section 563.035.2 provides, in relevant part: “Promoting child pornography in the second degree is a class C felony 

unless the person knowingly promotes such material to a minor, in which case it is a class B felony.” (emphasis added).
7

files enters a search term in the dialogue box. Then, Ares compiles a list of files fitting the search 

term that are available for download from other users’ computers. When the user clicks on a 

desired file, it is downloaded from the computers of other users who currently have the Ares 

program open and have authorized the sharing of such files. Once the download is complete, the 

file is automatically transferred to a “shared” folder on the user’s desktop. By default, Ares makes 

downloaded files in the “shared” folder available to other users to download. However, a user can 

manually change the default settings to turn off file sharing altogether and prevent other users from 

downloading the files. 

Here, while Fodrini concedes he downloaded child pornography using Ares, he argues the 

record is void of any indication that he knowingly provided child pornography to Sergeant 

Kavanaugh. Fodrini maintains he was unaware of the default file-sharing feature, and, because the 

default settings require Ares users to share downloads without their permission, he never 

consciously allowed Sergeant Kavanaugh to access and download child pornography from his 

“shared” folder. Had he known about the default settings and Ares’s intricate file-sharing 

capabilities, Fodrini contends “he obviously would have changed them to protect himself from 

criminal prosecution.” We find Fodrini’s argument unpersuasive.

Missouri cases involving the promotion of child pornography through the use of a peer-topeer file-sharing program are sparse. However, we find instructive the decisions of the Western 

District in State v. Tremaine, 315 S.W.3d 769 (Mo. App. W.D. 2010), and the Eighth Circuit in 

United States v. Durham, 618 F.3d 921 (8th Cir. 2010). In Tremaine, detectives downloaded 

images of child pornography from an IP address associated with Tremaine’s residence. Tremaine, 

315 S.W.3d at 771. When detectives executed a search warrant, Tremaine admitted downloading

child pornography using a peer-to-peer file-sharing program called LimeWire. A forensic 
8

examination of Tremaine’s computer revealed the existence of the LimeWire program as well as 

numerous files containing child pornography, all of which were located in a folder labeled 

“Incomplete.” Id. Tremaine’s computer was set to permit the sharing of files located in his 

“Incomplete” and “Shared” folders with other LimeWire users. 6 A jury subsequently found 

Tremaine guilty of promoting child pornography in the first degree by offering to disseminate 

obscene material. Id. 

On appeal, the Western District affirmed Tremaine’s conviction, concluding that the 

evidence was sufficient for the jury to find Tremaine knowingly operated his computer in a way 

that made child pornography available to other LimeWire users. Id. at 773. The appellate court 

found the fact that Tremaine was aware he downloaded child pornography from other LimeWire 

users supported an inference that he also knew the files he possessed would be available for 

sharing. Id. at 773–74. Additionally, evidence was presented that Tremaine had a working 

knowledge of LimeWire because he set up the program on his computer, admitted he first found 

child pornography through the program “a little bit less than a year” ago, and demonstrated he 

knew how the program worked. Id. at 774. Although Tremaine had the option to turn off the filesharing feature, he actively enabled the sharing of files in his “Incomplete” and “Shared” folders. 

Id. Further, the jury heard evidence of Tremaine’s inconsistent statements made prior to and during 

trial regarding his familiarity with LimeWire, and how the program and child pornography ended 

up on his computer. Id. at 775. The Western District found the jury was entitled to disbelieve 

Tremaine’s efforts at trial to minimize his knowledge of LimeWire and involvement in 

 6 LimeWire is similar to the Ares program. When a user downloads a file through LimeWire, the file is initially 

downloaded into an “Incomplete” folder on the requesting user’s computer. Id. at 773. Once a complete file is 

assembled, it is automatically transferred to a “Shared” folder. Unlike Ares, however, files in the “Incomplete” and 

“Shared” folders are not, by default, shared with other users. Rather, LimeWire users must actively enable the sharing 

of files in order to make them available to download. Id. at 773–74. 
9

downloading child pornography, and the jury’s rejection of this testimony provided additional 

evidence to support the verdict. Id. at 776. 

That same year, in Durham, the Eighth Circuit addressed a similar issue as Tremaine, but 

this time in the context of a sentence enhancement for the distribution of child pornography under 

federal sentencing guidelines. There, police found Durham’s IP address offering to participate in 

the distribution of child pornography through LimeWire. Durham, 618 F.3d at 923. Although 

police did not actually download files from Durham’s “shared” folder, they believed the file names 

were consistent with child pornography. After police executed a search warrant, Durham admitted 

using LimeWire to download child pornography. Id. A forensic examination of Durham’s 

computer revealed his default LimeWire settings had been changed to enable the sharing of files 

from different folders. Id. The examination also revealed the “shared” folder no longer contained 

child pornography files. Durham subsequently pleaded guilty to the federal offense of knowingly 

receiving child pornography. Id. At the sentencing hearing, the district court applied a two-level 

distribution enhancement, finding Durham was “very knowledgeable” about LimeWire’s 

downloading capabilities, which led the court to conclude he also was knowledgeable about the 

program’s uploading capabilities. Id.7

Ultimately, and relevant to the present case, the Eighth Circuit reversed the application of 

the sentence enhancement, finding there was no evidence in the record that Durham was a 

sophisticated user of LimeWire. Id. at 928–29. The appellate court found there was little evidence 

demonstrating Durham knew how to operate LimeWire. Durham’s brother testified he was more 

knowledgeable than Durham about computers, and Durham “wasn’t real sure how to use” 

 7 We note that different burdens of proof are required to support a sentence enhancement and a conviction. To support 

a federal sentence enhancement, the government is only held to a preponderance of the evidence standard, see id. at 

924, whereas, the State has the burden of proving a defendant’s guilt beyond a reasonable doubt, see Tremaine, 315 

S.W.3d at 771.
10

LimeWire. Id. Durham also was not responsible for installing LimeWire on his computer. Rather, 

Durham’s brother installed and set up the program so Durham’s daughter could download music. 

Id. at 928. Accordingly, while there was direct evidence that Durham knew how to download files 

through LimeWire, there was no evidence that he knew he was distributing child pornography. Id. 

at 929. The Eighth Circuit found this evidence contradicted the district court’s finding that Durham 

was “very knowledgeable” about LimeWire’s capabilities. Id. Additionally, the appellate court 

concluded Durham’s use of a peer-to-peer file-sharing program alone was not a sufficient basis to 

impose a distribution enhancement. Id. at 931.

In applying Tremaine and Durham to the facts and circumstances of the present case, we 

find sufficient evidence was presented from which the circuit court could reasonably conclude 

Fodrini was a sophisticated user of Ares and was knowledgeable about its file-sharing capabilities. 

As in Tremaine, Fodrini admitted installing Ares on his computer, and using the program for four 

or five months to search for and download files containing child pornography. This admission was 

supported by the forensic examination of Fodrini’s computer, which recovered evidence of

complete and incomplete downloads of child pornography from other Ares users. Police also 

recovered the numerous search terms Fodrini used to search for child pornography within Ares. 

Moreover, unlike in Durham, where the defendant neither had a sophisticated understanding of 

computers nor personally downloaded LimeWire, here, in addition to downloading and using Ares 

for several months, police found evidence of various terms Fodrini used to search Google for child 

pornography as well as bookmarked images depicting child pornography. A forensic examination 

of the thumb drive seized from Fodrini’s residence further revealed 4,200 images of identifiable 

child pornography as well as approximately twenty-seven videos of child pornography, which 

supported a reasonable inference of sophistication. 
11

Additionally, Sergeant Kavanaugh testified that “even a novice” can understand that Ares 

is a file-sharing program, and that its purpose is to download and share files with other Ares users. 

Specifically, Sergeant Kavanaugh testified that when an Ares user performs a search, the program 

“will start searching the Ares network of people to see if anybody has those files that you’re 

looking for, and then [the user] would click on those individual files to download what you’re 

trying to obtain.” Given Fodrini’s working knowledge of Ares, including the fact that he repeatedly 

used the program to search for and download child pornography, it is reasonable to infer that 

Fodrini knew the child pornography files he downloaded came from the computers of other Ares 

users, and, therefore, that his own files would likewise be available for sharing. See Tremaine, 315 

S.W.3d at 774.

Furthermore, the evidence demonstrates Fodrini had the option to change the file-sharing 

settings to keep the downloaded files in his “shared” folder private. However, Fodrini chose not to 

adjust the settings, which made the child pornography readily available to other Ares users. While 

we acknowledge the Ares program, by default, automatically shares files, Sergeant Kavanaugh

testified that Ares clearly walks the user through a step-by-step installation process, which 

provides information about the program’s file-sharing features and requires the user to agree to 

certain terms. Through this process, the user is informed of the program’s default settings, and 

how to manually change the settings to turn off the file-sharing feature. Here, unlike in Durham, 

it was Fodrini, and no one else, who installed and set up Ares on his computer. There also was no 

evidence, unlike in Durham, that anyone other than Fodrini either used his personal computer or 

accessed his Ares account. As such, the circuit court could reasonably conclude that Fodrini 

voluntarily chose not to change the default file-sharing settings and, thus, knowingly allowed other 

Ares users to access the child pornography in his “shared” folder. See id. at 775.
12

In support of his argument that he was not a sophisticated user of Ares, Fodrini points to 

the statements he made to detectives in which he repeatedly denied knowing Ares was a filesharing program. However, the circuit court heard all the evidence at trial, including Fodrini’s 

denials, and clearly found his statements not credible. Per our standard of review, we give great 

deference to the circuit court’s determinations of credibility and weight of the evidence. State v. 

Donovan, 539 S.W.3d 57, 66 (Mo. App. E.D. 2017). This Court does not act as a “super juror” 

with veto powers, nor will we reweigh the evidence anew. See Nash, 339 S.W.3d at 509. Moreover, 

the State presented evidence of the false statements Fodrini made to the detectives regarding his 

use of Ares and familiarity with downloading child pornography. “When proven false, exculpatory 

statements evidence a consciousness of guilt.” State v. Farris, 125 S.W.3d 382, 389 (Mo. App. 

W.D. 2004). “Guilt may be inferred when an accused attempts to deceive the police, as in making 

a false exculpatory statement.” State v. Buchli, 152 S.W.3d 289, 297 (Mo. App. W.D. 2004).

Initially, Fodrini denied knowing how Ares worked, and told the detectives he only used Ares to 

download movies and music, and look at adult pornography. Fodrini denied ever looking at child 

pornography. However, when Fodrini was presented with evidence of the child pornography 

search terms found on his computer and the thumb drive, Fodrini admitted lying to the detectives, 

and confessed to using Ares, as well as other internet websites, to search for and download child 

pornography. Therefore, like in Tremaine, the circuit court could reasonably infer Fodrini’s guilt 

based on his attempt to deceive the detectives, which provides additional evidence supporting his 

conviction. See Tremaine, 315 S.W.3d at 776.

Fodrini also argues that his mere use of a file-sharing program is insufficient to establish 

guilt for promoting child pornography. Although we recognize Fodrini’s argument, the 

incriminating evidence in this case goes well beyond Fodrini’s use of Ares alone. Based on the 
13

foregoing evidence, a rational trier of fact could reasonably conclude Fodrini installed and set up 

the Ares program on his computer, knew he was downloading child pornography files from other 

Ares users, chose not to change the file-sharing features of the “shared” folder, and was aware that 

by doing so other Ares users could access and download child pornography from his computer. 

Accordingly, we find this evidence is sufficient to support Fodrini’s conviction for promoting child 

pornography in the second degree. Point denied.

Conclusion

We affirm the judgment of the circuit court.

_______________________________

 Angela T. Quigless, J. 

Roy L. Richter, P.J., and 

Robert M. Clayton III, J., concur.