COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Frank and Felton Argued at Chesapeake, Virginia

JAMES OSIAS SIMONE, JR. MEMORANDUM OPINION * BY v. Record No. 0551-04-1 JUDGE ROBERT P. FRANK MARCH 15, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Mark S. Davis, Judge S. Jane Chittom, Appellate Defender (Virginia Indigent Defense Commission, on briefs), for appellant. Eugene Murphy, Senior Assist ant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

James Osias Simone, Jr., appellant, was convi cted, in a bench trial, of four counts of possession of child pornography in violation of C ode § 18.2-374.1:1. On appeal, he contends the trial court erred in 1) finding that appellant knowingly possessed three images located in the Temporary Internet File (“cache”) of a com puter, along with one image displayed as the wallpaper; 2) finding that the images found in th e computer constituted four separate offenses; and 3) finding that appellant did not abandon the computer and the items contained therein. For the reasons that follow, we reverse and dismiss. 1

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 For purposes of res judicata, we remand solely for the purpose of co rrecting the date of the offenses in the final sentencing order from July 16, 2003 to June 29, 2002.- 2 - BACKGROUND For approximately two years prior to June 27, 2002, Alexandra and Mark Reed rented a converted garage to appellant as his residence. During the last week of March 2002, appellant gave the Reeds verbal notice that he was moving. At some point, appellant stopped paying rent

and the Reeds filed an unlawful detainer action to evict him. A court date was pending when the Reeds first entered the premises on June 27, 2002. Because the Reeds had seen no activity on th e premises “in a couple of weeks,” they entered the premises on June 27, 2002 to clean the apartment. Prior to entry, Mr. Reed found the apartment secured. The door was locked, but it was scratched and appeared to have been tampered with. The windows were locked as well, but the curtains were open. Upon entering, the Reeds found “a bunch of clothes,” magazine s, various paper items and an unplugged computer sitting on a table. A lthough the record does not indicat e when appellant moved out of the apartment, it is uncontroverted that appellant was no longer living in the apartment on June 27, 2002.

The Reeds left and returned on June 29 to cl ean the apartment. They intended to collect appellant’s property and either allo w him to pick it up or give it to his parents. They plugged in the computer “to see if it worked” and saw wa llpaper that contained the image of a “very young girl partially nude against a flag.” They called the police. Mr. Reed had seen appellant using the com puter on one prior occasion. During the time appellant had lived on the premises , no one else lived there. Mrs. Reed testified that nobody else was entitled to live there, to have a key to the premises or to go on the property unless as an invited guest of appellant.- 3 - The police seized the computer. Among other items seized were some adult pornographic magazines and a number of downloade d Internet images “relating to sexual incidents involving young females.” Virginia State Police Special Agent Rudy J ones, qualified as an expert in computer forensics, found files on appellant’s computer containing “numerous pictures of females in various state of undress, some of which may have been under the age of eighteen.” Police also found two hundred sixty files containing “sexuall y explicit content, text containing sexual content and/or photographs.” In the Windows directory, Special Agent J ones found a file entitled “Jess.bmp.” which contained the image displayed as the wallpaper. This image was introduced at trial. The other three images introduced at trial were rec overed from the “AOL 4.0 directory cache/user 00101.” 2 Agent Jones testified that all four images regist ered separate carryover dates and times. Agent Jones indicated he could not tell whether any of the dates and times were accurate since the battery which controlled the cloc k had expired. Each of the images was of young children in various poses and stages of undress. Agent Jones stated: It appeared looking at the hist ory that whoever was at the keyboard, that person was specifi cally looking for certain items, i.e. pictures of young persons under the age of eighteen. From what the agent saw, he opined “whoever wa s using that computer was searching for web sites or pictures or information about persons un der the age of eighteen.” That person had used and actually typed in search terms such as “Lol ita,” “pre-teen,” “teenagers,” “pre-teen pictures” and “pedophilia.” These were “the usual type search terms that you se e in cases involving persons checking for pictures of persons under the age of eighteen.”

2 Cache files are also referred to as Temporary Internet Files.- 4 - A pediatrician concluded that each of the four pictures portraye d children under the age

of 18. Appellant was indicted for four counts of possession of child por nography, all allegedly occurring on June 29, 2002. Appellant was only ch arged and convicted of possessing the images found on the “wallpaper” and in the cache file. 3 The trial court convicted appellant of all four counts, ruling that th e evidence showed beyond a reasonabl e doubt that appellant was in possession of all four items and that the eviden ce was sufficient to sustain four separate

convictions. The court stated: [T]he Court does not find any cr edence to the suggestion that it was abandoned at the apartment based upon the testimony regarding access to the apartmen t and the testimony regarding the fact that this computer had been seen by the Reeds in the apartment as being used and belonging to the defendant, and clearly as to Commonwealth’s Exhibit Number 6 [wallpaper], it was an item by all accounts that was manually dow nloaded onto the computer, and the computer was in the possession of the defendant at his apartment, no one else. There was no testimony suggesting anyone else lived there with him and, as a matter of fact, it was an item that popped up or appeared, rath er, on the screen when the computer was cut on, so the Court has absolutely no doubt that the defendant possessed that image with in the terms of the statute and so finds. In a following written op inion, the court stated:

The Internet searches conducted by the defendant, as revealed by Agent Jones, show that he was reaching out for images involving child pornography. As the testimon y revealed, one of his search terms was “Lolitas,” a common term in the search for child pornography according to the testimony. . . . These stories reveal the defendant’s interest in sexua l activity of juveniles. This evidence, in conjunction with th e defendant’s knowing possession of another child pornography image which had to be manually downloaded onto the wall paper of his computer and which was visible every time the computer was turned on, combines to show beyond a reasonable doubt that the defendant reached out for these images with the intent to cont rol and have dominion over them.

3 Appellant does not contest that th e content of the items was obscene.- 5 - The defendant acquired mastery of and had control of these images. The defendant’s Internet search terms, stories involving graphic juvenile sexual activity, and the child pornography image manually displayed on his computer wall paper, sufficiently answers any doubts raised by the defendant regarding the manner in which these three cache images found their way onto the temporary internet files on his comp uter. Defendant’s actions as a whole prove, beyond a reasonable doubt, that he reached out for and controlled the three images contained in his computer’s cache/temporary internet file. The court sentenced appellant to twelve mont hs in jail, with eight months suspended, on the misdemeanor conviction. On each felony convi ction, the court sentenced appellant to six years incarceration, with five year s and eight months suspended. Th e court ordered that all four sentences run concurrently, for a total peri od of incarceration of four months.

ANALYSIS

STANDARD OF REVIEW When the sufficiency of the evidence is cha llenged on appeal, we review the evidence “in the light most favorable to the Commonwealth, gr anting to it all reasonable inferences fairly deducible therefrom.” Bright v. Commonwealth , 4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1987). The trial court’s judgment will not be set aside unless plainly wrong or without evidence to support it. Josephs v. Commonwealth , 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) ( en banc ). “Circumstantial evidence is as competent a nd is entitled to as mu ch weight as direct evidence, provided it is sufficiently convinci ng to exclude every reasonable hypothesis except that of guilt.” Breeden v. Commonwealth , 43 Va. App. 169, 177, 596 S.E.2d 563, 567 (2004).

ABANDONED PROPERTY Appellant contends that because he had pr eviously abandoned the computer, he was not in possession of the computer or its contents on June 29, 2002. The Commonwealth responds

that there is no evidence in the record to suggest the appellant’ s intent to abandon the property. While appellant argues abandonment, the overridi ng issue is whether appellant possessed the- 6 - images contained within the computer on June 29, 2002, the date allege d in the indictment. 4 Appellant is not charged with possession on an earlier date. In order to convict a pers on of illegal possession of cont raband, “proof of actual possession is not required; proof of cons tructive possession will suffice.” Maye v.

Commonwealth , 44 Va. App. 463, 483, 605 S.E.2d 353, 363 ( 2004). To support a conviction based upon constructive possession, “the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other fact s or circumstances which tend to show that the defendant was aware of both the presence and ch aracter of the [contraband] and that it was subject to his dominion and c ontrol.” Drew v. Commonwealth , 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (citation omitted). Ownership or occupancy of the premises on which the contraband was found is a circumstance proba tive of possession. Ar cher v. Commonwealth , 26 Va. App. 1, 12, 492 S.E.2d 826, 832 (1997). However, “[t]he Commonwealth is not required to prove that there is no possibility that someone else may have planted, discarded, abandoned or placed the [contraband]” where the contraba nd is discovered. Br own v. Commonwealth , 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) ( en banc ). “To resolve the issue, the Court must consider the totality of the circumstances established by the evidence.” Williams v.

Commonwealth , 42 Va. App. 723, 735, 594 S.E.2d 305, 311 (2004). While we recognize that the tr ial court addressed the issue of abandonment, we note that the court addressed it only in reference to the time period when appellant occupied the apartment. Rather than focusing on whether or not appellant had abandoned the images on the computer on June 29, 2002, the date alleged in the indictment, the trial court determined that

4 While appellant cites no au thority, and we find none, to support the c ontention that abandonment is an absolute defense to possessi on, we recognize that facts and circumstances which might indicate an intent to abandon propert y are relevant considerations when analyzing constructive possession.- 7 - appellant had not abandoned th e computer during the time pe riod when the Reeds observed appellant using the computer. Th e trial court made no factual fi ndings whether or not appellant either abandoned or possessed the co mputer images on June 29, 2002. It is undisputed that appellant had vacated the premises sometime prior to June 29, 2002. Just as ownership or occupancy of the premis es on which contraband is found is a circumstance probative of possession, we consider Mrs. Reed’s testimony that “[ i]t looked like the tenant had left and I hadn’t seen any activity in a couple of weeks” as a si gnificant factor in considering appellant’s possession of the computer imag es on June 29, 2002. Although appellant left clothing, magazines, paperwork, and the unplugged computer in the apartment, there is nothing in the record to suggest that he exercised any control over the com puter images on June 29, 2002. There is no evidence that appellant, after vacating the premises, returned to exercise

dominion and control over th e computer or any other property left there. There is no evidence to suggest he made any effort to retrieve the com puter. There is no eviden ce appellant retained a key to the apartment.

Whenever “evidence leaves indifferent which of several hypotheses is true, or merely establishes only some finite probability in favor of one hypothesis, such evidence does not amount to proof of guilt beyond a reasonable doubt.” Pemberton v. Commonwealth , 17 Va. App. 651, 654, 440 S.E.2d 420, 422 (1994) (citation om itted). We are not prepared to rule that possession on an earlier date, without more , necessarily establis hes possession on a later date. We find that appellant, as a prior tenant , did not have sufficient dominion and control over the computer on June 29, 2002 to conclude that he possessed the images contained thereon on

that date.- 8 - KNOWING POSSESSION OF CHILD PORNOGRAPHY/MULTIPLE COUNTS Because we find that appellant did not posse ss the computer or the images therein on June 29, 2002, we need not address a ppellant’s remaining issues. Reversed, dismissed, and remanded.