Decisions of the Nebraska Court of Appe

STATE v. MUCIA 821

Cite as 22 Neb. App. 821

State of Nebraska, appellee, v

Gregory M. Mucia, appellant

___ N.W.2d ___

Filed March 31, 2015. No. A-14-070.

1. Criminal Law. Neb. Rev. Stat. § 28-813.01 (Cum. Supp. 2014) provides that 

it shall be unlawful for a person to knowingly possess any visual depiction of 

sexually explicit conduct which has a child as one of its participants or portrayed observers.

2. Criminal Law: Evidence: Appeal and Error. In reviewing a sufficiency of the 

evidence claim, whether the evidence is direct, circumstantial, or a combination 

thereof, the standard is the same: An appellate court does not resolve conflicts in 

the evidence, pass on the credibility of witnesses, or reweigh the evidence; such 

matters are for the finder of fact.

3. ____: ____: ____. The relevant question for an appellate court reviewing a sufficiency of the evidence claim is whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.

4. Convictions: Evidence: Appeal and Error. A conviction will be affirmed, in 

the absence of prejudicial error, if the evidence admitted at trial, viewed and 

construed most favorably to the State, is sufficient to support the conviction.

5. Criminal Law: Statutes: Legislature: Intent: Appeal and Error. On appeal, 

appellate courts give penal statutes a sensible construction, considering the 

Legislature’s objective and the evils and mischiefs it sought to remedy.

6. Criminal Law: Statutes: Words and Phrases: Appeal and Error. Absent a 

statutory indication to the contrary, an appellate court gives words in a statute 

their ordinary meaning; but an appellate court strictly construes penal statutes and 

does not supply missing words or sentences to make clear that which is indefinite 

or not there.

7. Criminal Law: Statutes. Ambiguities in a penal statute are resolved in the 

defendant’s favor.

8. Criminal Law: Intent. Knowingly possessing child pornography, as prohibited 

by Neb. Rev. Stat. § 28-813.01 (Cum. Supp. 2014), requires a specific intention 

to possess child pornography.

9. Criminal Law: Trial: Judges. A trial judge sitting without a jury is not required 

to articulate findings of fact or conclusions of law in criminal cases.

10. Criminal Law: Trial: Judges: Presumptions. In a jury-waived criminal trial, 

the trial judge is presumed to be familiar with and to have applied the proper 

rules of law, unless it clearly appears otherwise.

11. Convictions: Evidence: Appeal and Error. A conviction will be affirmed if the 

properly admitted evidence, viewed and construed most favorably to the State, is 

sufficient to support the conviction.

12. ____: ____: ____. When reviewing a criminal conviction for sufficiency of the 

evidence to sustain the conviction, the relevant question for an appellate court is 
Decisions of the Nebraska Court of Appe

822 22 NEBRASKA APPELLATE REPORTS

whether, after viewing the evidence in the light most favorable to the prosecution, 

any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.

Appeal from the District Court for Lancaster County: Kare

B. Flowers, Judge. Affirme

Sean J. Brennan for appellant.

Jon Bruning, Attorney General, and Melissa R. Vincent for 

appellee.

Irwin, Inbody, and Pirtle, Jud

Irwin, Judge

I. INTRODUCTION

Gregory M. Mucia appeals his conviction for possession 

of child pornography. On appeal, Mucia asserts that the State 

failed to adduce sufficient evidence to show that he knowingly 

possessed the child pornography and challenges the court’s 

admission of four video files into evidence. We find no merit 

to Mucia’s assertions on appeal, and we affirm.

II. BACKGROUND

Mucia was charged by information with violating Neb. 

Rev. Stat. § 28-813.01 (Cum. Supp. 2014), which makes it 

“unlawful for a person to knowingly possess any visual depiction” of child pornography. The charge was based on the identification of child pornography files on Mucia’s computer, discovered by a Lincoln Police Department investigator, Corey 

Weinmaster.

At trial, Mucia did not dispute that evidence of child pornography was found on two of his computers. His defense was 

that he had not knowingly possessed child pornography; that 

he had not intended to access child pornography; and that if he 

located child pornography while searching for adult pornography, he deleted it. Mucia argued at trial that he had not knowingly possessed child pornography, because to do so would 

require him to have done so in a way that was not accidental 

or involuntary.
Decisions of the Nebraska Court of Appe

STATE v. MUCIA 823

Cite as 22 Neb. App. 821

Weinmaster testified at trial that he investigates child pornography cases for the Lincoln Police Department, including 

conducting forensic examinations of computers. He testified 

that he uses a software program that, through the Internet, 

searches “IP” addresses of computers using file-sharing software and locates files that have previously been identified 

as potentially depicting child pornography. He testified that 

when the program identifies a file, the file is, at that time, 

actually on the hard drive of the identified computer and 

available for sharing through a file-sharing software program. 

He testified that when the software program identifies such 

a file, the file-sharing program being used by the identified computer also has a unique identification that can also 

be tracked.

According to evidence adduced at trial, Weinmaster’s investigation was based on identifying persons using peer-to-peer 

(P2P) software, wherein users install publicly available software that facilitates the trading of digital files. Through such 

programs, users are able to search for digital files available 

on other computers and are able to select specific files to be 

downloaded to the user’s computer. The P2P software uses an 

algorithm to create a “hash” value, which is a digital signature 

that allows an investigator to determine “with a precision that 

exceeds 99.9999 percent certainty” that two files are identical. 

The hash value of files identified as being available for sharing through P2P software can then be compared with files in 

a database of known child pornography to determine whether 

files available for sharing are child pornography.

In October 2011, Weinmaster ran the software program 

“and identified an IP address that had listed 10 files available 

for sharing” that had hash values and titles consistent with 

files in a law enforcement database of known child pornography files. Weinmaster then completed an affidavit for search 

warrant. According to his affidavit, he reviewed the information associated with four of the hash values and identified 

files named “r@ygold_boyandgirl 11 yo FUCK!3.26(PTHC 

KIDSEX}.mpg,” “Best Vicky BJ & Handjob with sound 

(r@ygold pedo reelkiddymov underage illegal lolita daughter incest xxx ora.mpg,” “! NEW ! (pthc) Veronika Nuevo 2 
Decisions of the Nebraska Court of Appe

824 22 NEBRASKA APPELLATE REPORTS

Nenas_all.mpg,” and “(((KINGPASS))) (pthc) (dark studio) 

Dark Robbery.mpg.”

Weinmaster reviewed the files in the law enforcement database that had the unique hash values identified with the four 

files. Each was a video file depicting children engaged in 

sexual conduct. One video involved a prepubescent female and 

a prepubescent male and depicted masturbation and sexual penetration; Weinmaster estimated that the children were approximately 9 to 11 years of age. One video involved a prepubescent 

female, approximately 9 to 11 years of age, performing oral 

sex on an adult male. One video involved two prepubescent 

females, approximately 7 to 9 years of age, and depicted penetration of one’s vagina with a foreign object, as well as a 

female approximately 10 to 11 years of age performing oral sex 

on an adult male. One video involved three females, approximately 12 to 14 years of age, exposing their breasts and vaginas and rubbing their vaginas.

Copies of these four videos were offered and received, over 

objection, at trial. Weinmaster testified that his software program indicated that the video files had been present on Mucia’s 

computers, but that they were no longer present on the computers after they were seized and forensically examined.

Through identification of the IP address associated with 

the identified files, Weinmaster was able to identify that the 

Internet account holder was Mucia’s brother. When executing 

a search warrant, Weinmaster seized two computers, both from 

Mucia’s room at the residence. Weinmaster then ran forensic 

examinations on both computers.

Weinmaster testified that he found evidence of a variety of 

files, both in and out of the “recycle bin,” on one of the computers that merited further investigation. He testified that four 

of the files that were not in the recycle bin were video files 

that had been downloaded through a P2P software program 

and placed in a specific user account that had to be specified 

as the download location. He testified that he viewed the four 

videos and that they constituted child pornography. Portions of 

the four videos were played for the court. As the portions were 

played for the court, there was no description or indication of 

what was being seen by the court.
Decisions of the Nebraska Court of Appe

STATE v. MUCIA 825

Cite as 22 Neb. App. 821

In addition to the 4 files found out of the computer’s recycle 

bin, Weinmaster located 14 other files in the recycle bin. He 

testified that files in the recycle bin were still accessible and 

can be restored and that the recycle bin can be used as “another 

storage container” on the computer.

Weinmaster testified that the location of files located on 

the computer required a series of steps to download the 

P2P software program, to install it, and to set it up and 

specify the download location to be somewhere other than 

a default location. He also testified that other P2P software 

programs on the computers included data files that tracked 

activity and showed a history of files consistent with child 

pornography. He also testified about Internet history located 

on the computers showing files that had been accessed and 

including terms consistent with child pornography, as well 

as thumbnail images on the computers that fit the criteria for 

child pornography.

Weinmaster testified he found evidence of files being 

accessed on the computers that were associated with “LS 

models” (which Weinmaster testified was a term prevalent in 

child pornography) and “p-t-h-c” (another term prevalent in 

child pornography) and that included phrases such as “rubbing eight y-o to orgasm” and “PTHC, five-year-old Kate, dad, 

ecstasy, hyphen, Katie . . . getting a mouthful of my cum, dot, 

link.” He testified that he could tell that the files were accessed 

and downloaded, but could not determine whether video files 

were watched.

On cross-examination, Weinmaster testified that Mucia had 

indicated that he used the P2P programs to search for pornography, but indicated that he had not been looking for child 

pornography. Weinmaster testified that Mucia indicated that 

if he saw child pornography, he deleted it. He also testified 

that a P2P user can conduct a batch download, highlighting 

a long block of items and downloading them without reading 

filenames first.

On cross-examination, Weinmaster testified that the four 

files he located which had been saved on either of the computers were the four videos of which a portion was played for the 

court and that everything else either was located in the recycle 
Decisions of the Nebraska Court of Appe

826 22 NEBRASKA APPELLATE REPORTS

bin or was indicated only through residual evidence of having 

been accessed at some point in time. He testified that the four 

videos he initially identified through hash values, leading to 

the search warrant and seizure of the computers, were not on 

the computers after he seized them. When asked to confirm 

that he found “no evidence of them anywhere” after seizing the 

computers, he acknowledged there was “[n]one.”

Mucia testified in his own defense. He acknowledged 

installing and using P2P software on his computers to obtain 

music, movies, and pornography. He testified that he never 

intentionally obtained child pornography and never searched 

for child pornography. He acknowledged that he had, on occasion, obtained images or videos that he suspected were child 

pornography, but he testified that when this happened, he had 

deleted the files because he “didn’t want anything to do with 

child pornography.” He testified that he had searched for “‘teen 

porn’” in an attempt to locate pornography involving girls that 

were ages 19 to 24.

Mucia testified that he had engaged in “‘batch downloading’” of files, during which he downloaded a large number of 

files and then returned later to “see what it was.”

Mucia testified that he was unaware that there was any child 

pornography on his computers.

On cross-examination, Mucia testified that downloaded files 

had to be opened to be able to see their content. He acknowledged seeing content in 2011 that he believed was child 

pornography. He agreed that the titles of files discovered by 

Weinmaster were consistent with child pornography.

On cross-examination, Mucia acknowledged that it was 

“possible” that he had visited a Web site related to “Preteen 

Models and Young Models” in September 2011, but testified 

that he was not “aware of” it. He testified that it was possible 

he had “click[ed] on a link of a link, but when — if [he] did go 

there, [he] would immediately get out, but [he] wasn’t intending to go there.”

Mucia also presented evidence from another computer 

forensics expert who had conducted a forensic examination 

of the computers in this case. The expert testified that he was 

often called upon to search for evidence of a user’s intent. He 
Decisions of the Nebraska Court of Appe

STATE v. MUCIA 827

Cite as 22 Neb. App. 821

testified that in doing so, he looked for the overall context in 

which data resides, including how organized any child pornography might be, whether it is relabeled or put into subfolders 

and subdirectories, and whether it is saved on external drives 

or encrypted into hidden areas. He testified that in this case 

he found no signs of any organization, no encryption, and no 

external copies or storage.

Mucia’s expert testified that “‘teen porn’” is a common 

search term for pornography that would be age appropriate for 

someone Mucia’s age.

Mucia’s expert testified that his analysis of the computers 

and the evidence was consistent with Mucia’s denial of having knowingly possessed child pornography. He testified that 

“searches for adult pornography were conducted, and in casting 

this large net across a body of water of unknown material . . . 

the unintended consequences of child pornography existed and 

. . . most of it had been deleted.”

On cross-examination, Mucia’s expert acknowledged that 

there was evidence of child pornography on the computers. 

In fact, he testified that he located two videos consistent with 

child pornography on one of the computers that Weinmaster 

had not found.

After the bench trial, the court found that the State had met 

its burden of proof and found Mucia guilty of knowingly possessing child pornography. The court sentenced Mucia to 3 

years’ probation. This appeal followed.

III. ASSIGNMENTS OF ERROR

On appeal, Mucia has assigned two errors. First, he asserts 

that the State failed to adduce sufficient evidence to demonstrate that he “knowingly” possessed child pornography. 

Second, he asserts that the district court erred in receiving into 

evidence the four videos identified by Weinmaster but not actually found on his computers.

IV. ANALYSIS

1. Knowing Possess

[1] Mucia was charged with possession of child pornography under § 28-813.01. That statute provides that “[i]t shall be 
Decisions of the Nebraska Court of Appe

828 22 NEBRASKA APPELLATE REPORTS

unlawful for a person to knowingly possess any visual depiction of sexually explicit conduct . . . which has a child . . . 

as one of its participants or portrayed observers.” (Emphasis 

supplied.)

On appeal, as at trial, Mucia does not argue that there was 

insufficient evidence to establish that he had possessed child 

pornography or that child pornography was found on his 

computers. Rather, he focuses his argument on asserting that 

the State failed to sufficiently demonstrate that his possession 

was knowing. He argues that “[t]he State failed to present 

evidence to refute Mucia’s and [his expert’s] testimony that 

Mucia received the child pornography unintentionally while 

conducting batch downloads of legal adult pornography and 

that he was not in knowing possession of it.” Brief for appellant at 7.

[2-4] In reviewing a sufficiency of the evidence claim, 

whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does 

not resolve conflicts in the evidence, pass on the credibility of 

witnesses, or reweigh the evidence; such matters are for the 

finder of fact. State v. Hansen, 289 Neb. 478, 855 N.W.2d 777 

(2014). See, also, State v. Schuller, 287 Neb. 500, 843 N.W.2d 

626 (2014). The relevant question for an appellate court is 

whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable 

doubt. Id. A conviction will be affirmed, in the absence of 

prejudicial error, if the evidence admitted at trial, viewed and 

construed most favorably to the State, is sufficient to support 

the conviction. State v. Collins, 281 Neb. 927, 799 N.W.2d 

693 (2011).

[5-7] On appeal, appellate courts give penal statutes a 

sensible construction, considering the Legislature’s objective and the evils and mischiefs it sought to remedy. See 

State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014). 

Absent a statutory indication to the contrary, we give words 

in a statute their ordinary meaning; but we strictly construe 

penal statutes and do not supply missing words or sentences 

to make clear that which is indefinite or not there. See id.
Decisions of the Nebraska Court of Appe

STATE v. MUCIA 829

Cite as 22 Neb. App. 821

Ambiguities in a penal statute are resolved in the defendant’s 

favor. Id.

We have been unable to locate any prior cases in Nebraska 

where either the Nebraska Supreme Court or this court have 

had occasion to make a determination about whether the term 

“knowingly” as used in § 28-813.01 requires a showing that 

the defendant had the specific intention of possessing child 

pornography or merely the general intention of possessing 

material that is, in fact, child pornography, and the parties have 

cited us to no authority on point. Nonetheless, we find that 

the Nebraska Supreme Court’s discussion in State v. Schuller, 

supra, sheds some light on the subject.

In State v. Schuller, supra, a defendant was convicted 

in a bench trial of possession of child pornography under 

§ 28-813.01. The Supreme Court addressed whether the term 

“possess” in § 28-813.01 included constructive possession, as 

well as actual possession, and concluded that constructive possession was included in the statute’s prohibition. The evidence 

in that case did not create an appealable issue concerning 

whether the defendant had knowingly possessed the child pornography at issue, as the uncontested evidence demonstrated 

that the defendant had searched the Internet for child pornography, had downloaded child pornography, had watched child 

pornography, and had then deleted the child pornography; the 

defendant had engaged in this behavior several times. Thus, 

the Supreme Court noted that the evidence was sufficient to 

support finding that the defendant had knowingly possessed 

child pornography.

The Supreme Court addressed the defendant’s argument 

that he had not possessed the child pornography files at issue 

because he had merely viewed them. In rejecting this argument, the Supreme Court distinguished the factual context 

of the case from a hypothetical scenario in which an office 

worker intentionally seeks out child pornography and views 

and manipulates child pornography images, and then an innocent coworker who happens to go into the office sees the 

images on the computer screen. The Supreme Court noted that 

in the hypothetical scenario, the innocent coworker would not 

have affirmatively sought out the images and had not had the 
Decisions of the Nebraska Court of Appe

830 22 NEBRASKA APPELLATE REPORTS

ability to control or manipulate them, and that therefore, the 

coworker would not have knowingly possessed them.

The Supreme Court concluded that the defendant in State 

v. Schuller, 287 Neb. 500, 843 N.W.2d 626 (2014), had not 

merely viewed the child pornography files at issue. “Instead, 

he repeatedly searched for, downloaded, viewed, and then 

deleted child pornography. He did this intentionally and with 

the specific purpose to do so, and he used file-sharing software 

to achieve his ends. This constitutes knowing possession—not 

mere viewing.” Id. at 514, 843 N.W.2d at 636.

The Supreme Court also noted that if a person legally 

browses adult pornography and mistakenly clicks on a link 

leading him to a child pornography site, which he immediately 

closes, the person would not be guilty of knowingly possessing 

child pornography. State v. Schuller, supra. The Supreme Court 

noted that, even though in such a situation child pornography 

would be downloaded to a computer’s “‘cache’” folder as a 

temporary Internet file, the person would not have downloaded 

the files knowingly or constructively possessed them. Id. at 

514, 843 N.W.2d at 636.

[8] The Supreme Court’s discussion in State v. Schuller, 

supra, is illustrative and suggests that knowingly possessing 

child pornography, as prohibited by § 28-813.01, requires a 

specific intention to possess child pornography. The Supreme 

Court’s emphasis on the defendant in that case having acted 

“intentionally and with the specific purpose” to locate and 

view child pornography is more consistent with a specific 

intent requirement than a general intent to possess files 

that, unbeknownst to the defendant, turn out to be child 

pornography.

We thus agree with Mucia that § 28-813.01 requires sufficient proof that he had the specific intent to possess child 

pornography, and not merely a general intent to download files 

that, unbeknownst to him, turned out to be child pornography.

In this case, the trial court did not make any specific findings about whether it was applying a specific or general intent 

requirement to the term “knowingly.” After counsel made 

closing arguments, the court inquired whether Mucia’s engaging in batch downloads knowing that batch downloads could 
Decisions of the Nebraska Court of Appe

STATE v. MUCIA 831

Cite as 22 Neb. App. 821

result in illegal content being retrieved would be sufficient to 

demonstrate knowing possession, and Mucia’s counsel argued 

to the court that a specific intent would be required. The court 

then took the matter under advisement, and when the court 

announced its verdict, the court did not make a specific finding 

on the relative intent required, but it did note that it had considered the arguments of counsel and had concluded that the 

State met its burden of proof. The record on appeal does not 

include the written verdict of the court.

[9,10] A trial judge sitting without a jury is not required to 

articulate findings of fact or conclusions of law in criminal 

cases. State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992). 

Further, it has long been the law in Nebraska that in a jurywaived criminal trial, the trial judge is presumed to be familiar with and to have applied the proper rules of law, unless 

it clearly appears otherwise. See State v. Tucker, 278 Neb. 

935, 774 N.W.2d 753 (2009); State v. Keup, 265 Neb. 96, 655 

N.W.2d 25 (2003); State v. Franklin, supra; State v. Cowan, 

204 Neb. 708, 285 N.W.2d 113 (1979).

[11,12] In such a case, the conviction will be affirmed if 

the properly admitted evidence, viewed and construed most 

favorably to the State, is sufficient to support the conviction. 

See State v. Keup, supra. The relevant question is whether, 

after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. Id.

Thus, the question we must resolve, in determining whether 

there was sufficient evidence to support the court’s conviction 

in this bench trial, is whether the evidence admitted at trial, 

viewed and construed most favorably to the State, is sufficient 

to support a conclusion that Mucia intentionally possessed 

child pornography.

Although we acknowledge that the amount of child pornography found on Mucia’s computers was slight, we nonetheless conclude that the conviction must be affirmed. Viewed 

in a light most favorable to the State, the evidence adduced 

at trial indicated that the four videos initially identified by 

Weinmaster as being on Mucia’s computer and available for 

downloading by other P2P users had been present on Mucia’s 
Decisions of the Nebraska Court of Appe

832 22 NEBRASKA APPELLATE REPORTS

computer at one point in time, even though they were no 

longer present when the computers were seized. Those four 

videos had file names including terms such as “11 yo FUCK!,” 

“pedo,” “reelkiddymov underage illegal lolita daughter incest,” 

and “pthc.” Weinmaster testified that each was a video file 

depicting children engaged in sexual conduct, including prepubescent females and males engaged in masturbation and 

sexual penetration.

The evidence, viewed and construed most favorably to the 

State, indicated that four other video files were located in a 

specific user account, which had to be specified as a download location and would not have automatically been created 

through the P2P program’s setup, and that the location of files 

found on the computers required a series of steps to download 

the P2P program, install it, and set it up and specify the download location.

The evidence, viewed and construed most favorably to the 

State, indicated that P2P software programs on the computers 

included data files and tracked activity showing a history of 

files consistent with child pornography, including temporary 

files and thumbnail images. The files included terms consistent 

with child pornography, such as “LS models” and “p-t-h-c,” 

and included phrases such as “rubbing eight y-o to orgasm” 

and “PTHC, five-year-old Kate, dad, ecstasy, hyphen, Katie 

. . . getting a mouthful of my cum.” The evidence indicated 

that these files were accessed and downloaded.

Although the State was unable to adduce direct evidence 

that Mucia intentionally sought out child pornography files 

and although Mucia presented evidence that he had engaged 

in batch downloads that might have inadvertently returned 

child pornography files, the evidence circumstantially supports a conclusion that Mucia knowingly possessed child pornography. The question presented on appeal is not whether 

it would have been reasonable for the finder of fact to have 

reached a different conclusion, but whether any rational finder 

of fact could have reached the conclusion that was reached by 

the trial court. Viewed in a light most favorable to the State, 

the circumstantial evidence supports a conclusion that child 

pornography files had to be selected from P2P searches to be 
Decisions of the Nebraska Court of Appe

STATE v. MUCIA 833

Cite as 22 Neb. App. 821

downloaded and some of the files were downloaded to a specific location that required specific steps by the user that a fact 

finder could find inconsistent with Mucia’s claim of inadvertence or accidental possession.

On appeal, we do not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such 

matters are for the finder of fact. State v. Hansen, 289 Neb. 

478, 855 N.W.2d 777 (2014). See, also, State v. Schuller, 287 

Neb. 500, 843 N.W.2d 626 (2014). The relevant question for us 

is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable 

doubt. Id. Even though the evidence adduced in this case was 

such that a rational trier of fact could have accepted Mucia’s 

assertion that his possession was only inadvertent or reckless, it was also such that a rational trier of fact could have 

concluded that it was knowing. Because we do not reweigh 

the evidence or resolve such conflicts, we find the evidence 

sufficient to support the conviction, and we find no merit to 

Mucia’s assignment of error.

2. Admission of V

Mucia also asserts that the district court erred in admitting into evidence four videos. The videos were the four 

files initially identified by Weinmaster through the presence 

of hash values consistent with child pornography and which 

Weinmaster testified were not located on the computer after it 

was seized and searched.

Mucia argues on appeal that the State failed to demonstrate 

that the videos were true and accurate copies of any file that 

had actually ever been on his computers, because the only 

connection between the videos and his computers was the testimony regarding hash values.

The State argues on appeal that Mucia failed to preserve any 

objection to the admission of the video files, because although 

he did object to their admission into evidence, he failed to 

specify any grounds for the objection. See State v. Muse, 14 

Neb. App. 13, 721 N.W.2d 661 (2006) (to preserve claimed 

error in admission of evidence, litigant must make timely 
Decisions of the Nebraska Court of Appe

834 22 NEBRASKA APPELLATE REPORTS

objection which specifies ground of objection and may not 

assert different ground on appeal).

In this case, Mucia’s objection at trial did not specify any 

ground for the objection. It is not apparent from the record 

that his objection was based on the reliability of hash value 

evidence or based on asserting that the videos were not true 

and accurate copies of videos that have ever appeared on 

the computer.

Indeed, as noted above, Mucia’s defense at trial—specifically indicated to the trial court before any testimony was 

received—was unrelated to any challenge to whether child 

pornography or any particular child pornography had been on 

Mucia’s computer or possessed by him. Mucia’s defense was 

entirely premised on challenging whether his possession was 

“knowing.” To the extent that Mucia did not challenge the 

State’s assertion that he actually possessed child pornography, 

it is hard to discern how admission of these video files could 

have prejudiced Mucia. Moreover, there was other evidence 

presenting graphic depictions of the videos that was admitted 

without objection; and there was substantial evidence of other 

child pornography on Mucia’s computers that was admitted 

without objection.

We find no merit to Mucia’s assertion that the court erred 

in admitting the video files. Mucia did not specify a basis for 

objecting to the files’ admission and thus waived the right 

to assert the basis for objecting which was being asserted on 

appeal. Moreover, any error in admission would have been 

harmless in the context of this prosecution.

V. CONCLUSION

We find no merit to Mucia’s assignments of error, and we 

affirm.

Affirm