State of Kansas v. Randy Allen Ballantine

Topeka, KS criminal defense lawyer represented the Defendant charged with sexual exploitation of a child.

The State charged Ballantyne with 25 counts of sexual exploitation of a child

under K.S.A. 2018 Supp. 21-5510(a)(2), which prohibits "possessing any visual depiction

of a child under 18 years of age shown or heard engaging in sexually explicit conduct

with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the

offender or any other person." The State alleged that the crimes occurred on or about

March 5, 2019. The State later amended the charging document to add a 26th count of

sexual exploitation of a child under K.S.A. 2018 Supp. 21-5510(a)(2), alleging that the

crime occurred on or about December 11, 2018.

The case proceeded to a jury trial in December 2021.

The investigation leading to Ballantyne's convictions began in March 2018. It was

then that Microsoft Online, through its search engine BingImage, submitted a tip to the

National Center for Missing and Exploited Children that child pornography had

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potentially been accessed. Microsoft monitors its traffic to identify potential users of

child pornography material. The National Center referred the CyberTip report to local

authorities.

Shea Carpenter, who worked for the Sedgwick County Sheriff's Office and was on

the Internet Crimes Against Children task force, received the CyberTip report. Carpenter

researched the IP address identified in the report and determined that Cox

Communications was the internet service provider for that IP address. Cox

Communications identified the subscriber associated with the IP address as Ballantyne's

mother in Salina. Carpenter contacted the Salina Police Department with the information.

Detective Aaron Carswell with the Salina Police Department investigated the tip.

He began his investigation by visiting Ballantyne's residence along with another officer.

Ballantyne answered the door. Detective Carswell told Ballantyne that he had received a

tip that child pornography had been downloaded to the Ballantyne IP address.

Ballantyne's computer, an HP laptop, was in his bedroom. Ballantyne said he was

the only person in the house to use the laptop. His mother did not use the internet in the

home. Ballantyne denied having any inappropriate photos of children on his computer.

Ballantyne said he had set up the laptop so that it could not download anything. Detective

Carswell thought that sounded strange, and Ballantyne was not able to explain how he

was able to set up the computer to not download data. Ballantyne also said there had been

attempts to hack his computer and that it might have some viruses.

Detective Carswell procured a warrant to search the residence and removed

Ballantyne's laptop from his bedroom. Detective Carswell transferred the computer to

Carpenter, who then transferred it to forensic examiner Detective Michael Randolph.

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Detective Randolph then analyzed Ballantyne's computer. Through his

examination, Detective Randolph recovered 26 items that he believed depicted child

sexual exploitation. Twenty-five items were in the unallocated space on the computer.

One file was in the recycle bin which is considered allocated space.

Detective Randolph explained at trial the difference between allocated and

unallocated space. For example, when a file is created, either by the user or by the

computer itself, the file is saved in the allocated space on the computer's hard drive. The

place where the file is stored on the drive is allocated to the file. When files are deleted,

the space that was previously assigned to the file is treated as unallocated space. The

unallocated space still contains the data, or may contain the data, but since it is no longer

assigned to a file, it is not considered part of the allocated space. If the computer needs

space later, it may overwrite data in the unallocated space. Average computer users

cannot access data in the unallocated space—doing so requires specialized software.

Detective Randolph did not find evidence of any such software on Ballantyne's computer.

When a user creates a file, for example a Microsoft Word document, the file

remains in the allocated space until the user deletes it. The normal deletion process

involves placing the file in the Windows recycle bin. Files in the recycle bin remain in

allocated space. When the user empties the recycle bin, the file system considers the file

deleted. Though the file system considers the file deleted, the data remains on the system

in the unallocated space until such a time as that unallocated space is used for new files.

Computers may also create files automatically which are also stored in allocated

space. When a person is browsing the internet, for example, the computer will save

images that appear on a webpage. The purpose of this function is to speed up the web

browsing experience. When a person scrolls through a webpage, it is quicker for the

computer to read from the files stored in its own hard drive than to wait to receive those

images through the internet. These temporary files are stored in allocated space. After a

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period of time, the system deletes these files automatically. For some computers, the

temporary cache files are deleted when a person ends a web browsing session and closes

the browser. When these files are deleted, they are no longer designated by the computer

as existing in the allocated space. But the data remains in the unallocated space until

written over.

Images saved automatically by computers are not necessarily seen by the

computer user. An example provided at trial was performing a search for fishing lures. If

a webpage has 200 pictures of fishing lures, but only a few are visible on the screen, the

computer will store files of all 200 pictures on the webpage to a temporary file cache. In

this way, Detective Randolph explained, a picture can be downloaded to a person's

computer without the person ever seeing the picture because it was not visible on the

screen. Though the user controls which websites he or she visits, the user does not control

which images from those websites are saved in the browser cache.

The 25 files Detective Randolph found in the unallocated space could not be

recalled by Ballantyne without the assistance of specialized software not present on his

computer. Detective Randolph could not determine whether Ballantyne or the computer

had deleted the files from the allocated space. He also could not say what date the files

were deleted, or whether they were even visible on the computer screen. He also could

not determine whether the files were saved intentionally, accessed, or viewed.

Detective Randolph had a little more information on the 26th file found in

Ballantyne's recycle bin. The file, a video, was created on December 11, 2018, at

1:59 p.m. The file was originally located in the downloads folder. It was moved to the

recycle bin that same day at 2:07 p.m. The file was accessed one time before being

moved to the recycle bin. Nevertheless, Detective Randolph was unable to determine how

long the file was accessed, or whether the user watched the entire video, did not watch it,

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or took some other action. Because the file was in the recycle bin, it was easily

recoverable by Ballantyne.

In addition to searching Ballantyne's files for child pornography, Detective

Randolph also examined Ballantyne's web browsing history. He created a timeline of

Ballantyne's internet history from October 2018 through February 2019. Ballantyne's

browsing history indicated to Detective Randolph that Ballantyne had visited websites

associated with child pornography. The display names of the websites included "REAL

HARD LITTLE GIRLS PORN!!! ONLY TGP," "9yo Orgazm," "Little Tight Holes," and

"PRETEEN KIDS PORN. STRAIGHT AND LESBIAN SEX." Detective Randolph

explained that in visiting these webpages, it would have resulted in images being stored

in Ballantyne's temporary internet cache where they would ultimately be moved to the

unallocated space.

Based on his experience, Detective Randolph believed that Ballantyne

intentionally sought out child pornography. He explained that child pornography would

not typically appear on legal pornography websites. He also did not find any viruses or

malware on Ballantyne's computer that would indicate that someone else put the child

pornography files on the computer.

Following Detective Randolph's forensic examination of Ballantyne's computer,

police interviewed Ballantyne at the Salina Police Department. Ballantyne claimed that

when the police went to his residence, they told him that a woman knew a man who was

a computer hacker, and the woman thought the man hacked into Ballantyne's internet and

sent child pornography to him. At trial, Detective Carswell said that the officers did not

tell Ballantyne anything of that nature. Ballantyne also said that approximately 10

minutes before the police arrived, he got a virus on his computer that caused things to

download to his laptop.

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During the interview, Ballantyne reported that he had been using the laptop for the

past four years and that no one else in the house used his laptop. Ballantyne said that he

had seen links to websites with naked children as well as pictures and videos of naked

children while he was browsing pornography sites. He initially said that he would scroll

past these things but later admitted that he looked at some of the videos and pictures out

of curiosity. Ballantyne described the children in the media as "disgustingly young," with

the youngest being possibly only four or five years old. He said he had seen "a lot" of

videos with children around that age.

Ballantyne maintained that he did not intentionally download anything. He said he

would click on images of child pornography, or that they would pop up unsolicited, but

he would not download them. Some of these pop-ups occurred while he was browsing

adult pornography sites. Toward the end of the interview, Ballantyne said he had been

looking at pictures of younger girls for the past couple of years.

Just before the State closed its case, the State moved to amend the charging

document. The State wanted to change the date alleged in counts 1-25 from "on or about

the 5th day of March, 2019" to "between the 1st day of January, 2014, and the 5th day of

March, 2019." The prosecutor explained that the amendment was warranted because

Detective Randolph testified that he could not provide a specific date that the files were

saved to the computer, and Ballantyne said he had owned the computer for four years.

The district court granted the request to amend.

The jury found Ballantyne guilty of all 26 counts. The district court sentenced

Ballantyne to 32 months' imprisonment with lifetime postrelease supervision for each of

the 26 counts. The court ordered counts 1 and 26 to run consecutive for a controlling

sentence of 64 months.

Ballantyne appealed.

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ANALYSIS

Does sufficient evidence support Ballantyne's 26 convictions for sexual exploitation of a

child?

Ballantyne challenges the sufficiency of the evidence supporting his 26

convictions for sexual exploitation of a child under K.S.A. 2018 Supp. 21-5510(a)(2).

Specifically, he argues that the State failed to prove that he knowingly possessed the files.

For charges 1-25, Ballantyne also argues that the State failed to prove that he possessed

the files within the statute of limitations.

Our standard of review is well-established when the appellant challenges the

sufficiency of the evidence:

"'When the sufficiency of the evidence is challenged in a criminal case, we

review the evidence in a light most favorable to the State to determine whether a rational

factfinder could have found the defendant guilty beyond a reasonable doubt. An appellate

court does not reweigh evidence, resolve conflicts in the evidence, or pass on the

credibility of witnesses.'" State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021).

Resolution of the issues in this appeal also requires statutory interpretation.

Statutory interpretation presents a question of law over which appellate courts have

unlimited review. State v. Keys, 315 Kan. 690, 697, 510 P.3d 706 (2022). The most

fundamental rule of statutory construction is that the intent of the Legislature governs if

that intent can be ascertained. An appellate court must first attempt to ascertain legislative

intent through the statutory language enacted, giving common words their ordinary

meanings. When a statute is plain and unambiguous, an appellate court should not

speculate about the legislative intent behind that clear language, and it should refrain

from reading something into the statute that is not readily found in its words. 315 Kan. at

698. Only if the statute's language or text is unclear or ambiguous does the court use

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canons of construction or legislative history to construe the Legislature's intent. State v.

Betts, 316 Kan. 191, 198, 514 P.3d 341 (2022).

The crime of sexual exploitation of a child under K.S.A. 2018 Supp. 21-5510(a)(2)

requires proof of "possessing any visual depiction of a child under 18 years of age shown

or heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual

desires or appeal to the prurient interest of the offender or any other person."

"'Possession' means having joint or exclusive control over an item with knowledge of or

intent to have such control or knowingly keeping some item in a place where the person

has some measure of access and right of control." K.S.A. 2018 Supp. 21-5111(v).

"Control" is not defined by statute, but Black's Law Dictionary defines it as "[t]o exercise

power or influence over." Black's Law Dictionary 416 (11th ed. 2019).

Does Kansas' definition of "possession" encompass the viewing of a webpage?

The first point to address is Ballantyne's argument that "evidence of internet

browsing, in which the computer temporarily saves data in a cache . . . , unknown to the

user, who may not view the image, and who takes no action to save or download it, does

not constitute knowing possession."

Though Kansas courts have not directly addressed this issue, many courts in other

jurisdictions have held that the mere presence of child pornography in a computer's cache

or unallocated space, without more, is not sufficient to establish knowing possession. E.g.

United States v. Kain, 589 F.3d 945, 950 (8th Cir. 2009) ("The presence of child

pornography in temporary internet and orphan files on a computer's hard drive is

evidence of prior possession of that pornography, though of course it is not conclusive

evidence of knowing possession and control of the images, just as mere presence in a car

from which the police recover contraband does not, without more, establish actual or

constructi[ve] possession of the contraband by a passenger."); Marsh v. People, 389 P.3d

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100, 108 (Colo. 2017) ("To be sure, the presence of photos in the internet cache alone

does not automatically establish knowing possession."); State v. Linson, 896 N.W.2d 656,

660 (S.D. 2017) ("We agree with those courts holding that the mere presence of child

pornography in a computer's cache is not sufficient to establish that a defendant

knowingly possessed it; the cached images are not themselves the contraband. Instead,

cached images or files are evidence of possession.").

This concept was discussed in United States v. Kuchinski, 469 F.3d 853 (9th Cir.

2006). John Kuchinski was convicted of one count each of receipt of child pornography

and possession of child pornography in violation of federal law. Police found 16 images

of child pornography in Kuchinski's downloaded files folder, 94 images in the recycle

bin, 1,106 images in the Active Temporary Internet Files, and another 13,904 to 17,784

images in the Deleted Temporary Internet Files. For purposes of sentencing, Kuchinski's

base offense level was 17. The sentencing guidelines provided that the base level of the

offense should be increased based on the number of images a defendant received or

possessed. If Kuchinski possessed 110 images, then two levels would be added. But if he

possessed more than 600 images, then five levels would be added. Kuchinski conceded

that he knowingly received and possessed the 110 files found in his downloads folder and

recycle bin. But he argued that the government provided insufficient evidence to prove

that he received or possessed the internet cache files.

The court held that the presence of the images in Kuchinski's cache was

insufficient to prove that Kuchinski knowingly received or possessed them. 469 F.3d at

863. The court noted that computers automatically cache files without input from the

user, and the user might not even know it is happening. While a sophisticated computer

user may be able to access the cache files, there was no evidence that Kuchinski was

sophisticated, that he tried to access the files, or that he even knew they existed. The

court concluded:

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"Where a defendant lacks knowledge about the cache files, and concomitantly

lacks access to and control over those files, it is not proper to charge him with possession

and control of the child pornography images located in those files, without some other

indication of dominion and control over the images. To do so turns abysmal ignorance

into knowledge and a less than valetudinarian grasp into dominion and control." 469 F.3d

at 863.

The reasoning of Kuchinski and other cases seems sound. If the State had

proceeded under the theory that Ballantyne possessed child pornography solely because

the images were found in the unallocated space on his computer, then there would not

have been sufficient evidence to sustain Ballantyne's convictions. But as the State notes

in its brief: "The State's theory was that Ballantyne possessed these 25 images on his

computer by viewing and downloading them, while acknowledging that further details

about the files were impossible to obtain because the files had been deleted and their

details removed from the computer." The State explains that this is why it charged a date

range in the complaint spanning over five years—it was not charging Ballantyne for

possessing the files in the unallocated space on the day the computer was seized; it was

charging Ballantyne for possessing the images by viewing them at some point during that

time period.

The parties' arguments raise the legal question of whether viewing child

pornography on a website amounts to knowing possession and control of child

pornography. This is an issue of first impression in Kansas. If viewing does amount to

possession, there is also a factual question of whether the State presented sufficient

evidence for the jury to infer that Ballantyne viewed the images at issue. These questions

are really the primary dispute in this appeal. Both parties cite caselaw from other

jurisdictions in support of their respective positions. We note that while caselaw from

other jurisdictions is not binding on this court, it can be considered as persuasive

authority.

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Some jurisdictions expressly prohibit viewing child pornography. See, e.g., 18

U.S.C. § 2252A(a)(5)(B) (prohibiting knowingly possessing or knowingly accessing with

intent to view child pornography); Alaska Stat. § 11.61.127(a) (defining possession of

child pornography as knowingly possessing or knowingly accessing on a computer with

intent to view proscribed material); N.J. Stat. Ann. § 2C:24-4b(5)(b)(i) (establishing

crimes when a person "knowingly possesses, knowingly views, or knowingly has under

his control, through any means, including the Internet . . . items depicting the sexual

exploitation or abuse of a child"); Marsh, 389 P.3d at 112-13 (Gabriel, J., concurring in

part and dissenting in part) (listing additional statutes that expressly prohibit viewing

child pornography on the internet).

Kansas law does not expressly prohibit the viewing of child pornography. There

are other jurisdictions that do not expressly prohibit it either. Nevertheless, that has not

stopped courts in those states from finding that viewing can amount to possession. The

courts are far from unified on this subject and have arrived at various conclusions when

asked to decide whether knowingly accessing and viewing child pornography on the

internet constitutes possession of child pornography. The courts have also differed in the

value they afford to evidence that a defendant had child pornography in his or her cache

or unallocated space. We will examine some of these cases.

Ballantyne cites United States v. Dobbs, 629 F.3d 1199 (10th Cir. 2011), in

support of his position. There, police found over 150 images of child pornography in the

temporary internet cache of Terry Dobbs' computer. The government initially charged

Dobbs with possession of child pornography and knowingly receiving or attempting to

receive the child pornography in violation of federal law. Before trial, however, the

government dismissed the possession charge. Additionally, the district court only

permitted the government to submit two of the images to the jury.

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As in this case, a forensic expert testified that web browsers automatically

download images of a webpage to the cache, regardless of whether the images are visible

on a computer's monitor. There was no evidence that Dobbs accessed the cache or even

knew it existed. There was evidence that Dobbs had conducted multiple searches for

child pornography and had visited websites consistent with child pornography. A forensic

specialist also discovered "a pattern indicative of the hunt for child pornography." 629

F.3d at 1202. Specifically, the forensic specialist testified that some of the suspect images

found on Dobbs' computer were immediately preceded by searches using terms for child

pornography. But there was no evidence that Dobbs visited a child pornography website

or that he searched for it immediately before the two images forming the basis of his

charges entered his cache.

There was no question that Dobbs received the images, but Dobbs argued that he

did not receive them knowingly. He asserted that because he did not know that his

computer automatically saved files in the cache, he could not have knowingly received

the files. On the other hand, the government argued that Dobbs' conviction was supported

by the evidence that Dobbs engaged in a pattern of methodically seeking out child

pornography and because he had the ability to control the images when they appeared on

his screen.

The court, however, found Dobbs' argument persuasive. The court noted that the

government presented no evidence that Dobbs accessed the two images at issue while

they were stored in his computer's cache. And Dobbs did not know about the computer's

automatic-caching function. The court rejected the government's argument that Dobbs'

pattern of viewing child pornography supplied sufficient evidence to support his

conviction. 629 F.3d at 1204. Although there was a pattern of searches preceding some of

the images found in the cache, there was "no evidence of suggestive searches

immediately prior to the creation of those two images in the cache, nor [was] there any

indication that Mr. Dobbs visited suspect websites prior to their arrival in his cache." 629

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F.3d at 1204. The court also noted that "[a]s for any child pornography that may have

appeared on Mr. Dobbs's computer monitor, the government's argument . . . breaks down

when we specifically focus on the two images at issue" because "[t]he government

presented no evidence that Mr. Dobbs actually saw the two images on his monitor, such

that he would have had the ability to exercise control over them." 629 F.3d at 1207.

Chief Judge Mary Beck Briscoe dissented. She believed the government's

evidence was sufficient because it showed that Dobbs methodically sought out child

pornography. She noted that the forensic examiner testified that the two images at issue

were a result of Dobbs' searches. 629 F.3d at 1212 (Briscoe, C.J., dissenting). Chief

Judge Briscoe was not concerned with the fact that the government did not offer direct

proof that either of the two images actually appeared on Dobbs' computer monitor. She

was not persuaded "that such direct proof, which would be nearly impossible for the

government to muster given the obviously secretive nature of the charged crime and the

limitations of computer forensic science, was essential or, for that matter, required in

order to support a conviction under 18 U.S.C. § 2252(a)(2)." 629 F.3d at 1213 (Briscoe,

C.J., dissenting). She "conclude[d] the jury could have reasonably inferred that Dobbs

would have, in his search for child pornography images, methodically scrolled down the

entire length of each web page he accessed, including the pages that contained the two

images at issue." 629 F.3d at 1213 (Briscoe, C.J., dissenting).

Chief Judge Briscoe also dismissed Dobbs' argument that he had to know about

the computer's caching process. In her view, it was sufficient that Dobbs intentionally

sought out and viewed images of child pornography because this activity "afforded

Dobbs temporary dominion and control over the images" which was "sufficient to

establish his knowing receipt of the images." 629 F.3d at 1213 (Briscoe, C.J., dissenting).

In support of her counter argument, she cited United States v. Romm, 455 F.3d 990, 1000

(9th Cir. 2006), which held that the defendant exercised control over cached images of

child pornography and knowingly possessed them when they were displayed on his

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screen because at that moment, the defendant "could print the images, enlarge them, copy

them, or email them to others."

The caselaw from other jurisdictions is just as divided as the Tenth Circuit was in

Dobbs. Though Dobbs was a receipt case as opposed to a possession case, it still touches

on concepts relevant to resolution of the issues in this case, including whether viewing

amounts to possession and what reasonable inferences can be drawn from computer

evidence.

Ballantyne also cites People v. Kent, 19 N.Y.3d 290, 970 N.E.2d 833 (2012), and

State v. Barger, 349 Or. 553, 247 P.3d 309 (2011), in support of his position. In Kent,

James Kent challenged the sufficiency of the evidence underlying his conviction for

possessing a sexual performance by a child. The evidence showed that the cache of

temporary internet files on Kent's computer contained an image of a child pornography

website called "'School Backyard.'" 19 N.Y.3d at 296. There was no evidence that Kent

was aware of his computer's cache function or that the file was stored in the cache. The

Supreme Court, Appellate Division, New York's intermediary appellate court, affirmed

Kent's conviction. 79 A.D.3d 52, 910 N.Y.S.2d 78 (2010). The court supported its

decision by noting that the presence of the webpage stored in the cache was evidence that

the webpage was accessed and displayed on Kent's computer screen. The court cited

overwhelming circumstantial evidence to support its holding that Kent accessed the

"'School Backyard'" webpage knowingly, and thus established "dominion and control

over the images." 79 A.D.3d at 68.

The New York Court of Appeals—New York's highest appellate court—reversed

Kent's conviction for possessing a sexual performance by a child. 19 N.Y.3d at 299.

Central to the court's holding was the concept that viewing child pornography did not

amount to possession of child pornography. The court believed that even if there was

evidence that images of child pornography were previously viewed, "to possess those

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images . . . the defendant's conduct must exceed mere viewing to encompass more

affirmative acts of control such as printing, downloading or saving." 19 N.Y.3d at 301. In

support of its holding, the court noted that "[f]ederal courts have held that for digital

images to constitute evidence of knowing possession of child pornography, such images

must be connected to something tangible (e.g., the hard drive), as they are when stored in

a cache, and that the defendant must be aware of that connection." 19 N.Y.3d at 301

(citing Romm, 455 F.3d at 1000).

One judge disagreed with the majority's reasoning. She did not think it was

necessary for the majority to address whether viewing amounted to possession because

the government did not pursue that theory. 19 N.Y.3d at 306-07 n.2 (Graffeo, J.,

concurring in result only). But because the majority essentially legalized "the purposeful

viewing of child pornography on the Internet . . . in New York," she felt compelled to

respond to the majority opinion. 19 N.Y.3d at 307. Judge Victoria Graffeo believed that

the definition of the word "'control'" as used in the statute prohibiting possession of a

sexual performance by a child included knowingly accessing and viewing child

pornography on the internet. 19 N.Y.3d at 307-08 (Graffeo, J., concurring). She

explained how a person can control something intangible on the internet:

"When using the Internet, a person must first decide to search for Web sites that contain

child pornography and, once they are located, to choose a particular item to observe.

Once the desired image appears on the screen, the user must then engage in a variety of

decisions that exemplify control over the displayed depiction: continue looking at the

image or delete it; decide how long to view it; once the viewing is complete, to keep the

image in its own tab or browser window, or simply move on to some other image or Web

page; save the image to the hard drive or some other device; or print it in a tangible

format. Through this process, the viewer exercises power over the image because he

manages and controls what happens to it. [Citation omitted.]" 19 N.Y.3d at 308 (Graffeo,

J., concurring).

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Judge Graffeo also provided a few other examples. A person can authorize a

transfer of funds between accounts on a banking website. A person can engage in online

shopping by entering order and payment information and approving the transactions.

When a person browses a news website, the person "controls the images that appear on

the screen by deciding whether to keep reading an article, click a hyperlink, go to another

site or exit the browser altogether." 19 N.Y.3d at 308 (Graffeo, J., concurring).

In addition to analyzing the plain meaning of the word "'control'" as it is used in

the New York statute, Judge Graffeo also examined the history and purpose of the statute.

19 N.Y.3d at 309-10 (Graffeo, J., concurring). She found that the purpose of the statute

was to protect children from exploitation, "and an image does not become any less

exploitative because it is viewed on a computer." 19 N.Y.3d at 310 (Graffeo, J.,

concurring). She believed that the market for child pornography would enlarge "with the

knowing viewing of these images . . . because the more frequent the images of children

engaged in sexual conduct are accessed, the more the creators produce to satisfy the

growing demand, which results in more children being coerced and groomed for the sex

trade." 19 N.Y.3d at 311 (Graffeo, J., concurring).

One judge, Judge Smith, wrote to respond to Judge Graffeo's concurrence. He

agreed that New York's laws were "designed to target the consumers of child

pornography, in the hope of eliminating the market for it." 19 N.Y.3d at 312 (Smith, J.,

concurring). But he did not think that the court should "read[] the statutes expansively, to

include as many 'consumers' as the statutory language can reasonably be interpreted to

permit." 19 N.Y.3d at 312 (Smith, J., concurring). He explained that someone who

simply clicks on a link for the purpose of looking at a pornographic picture for free has

never interacted with a child victim, never copied, downloaded, or saved child

pornography, and has not provided money to a person who provides child pornography.

Yet such a person would be subject to serving up to seven years in prison for a first

offense. Judge Smith thought this "a stringent punishment for someone whom many

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would think more pathetic than evil." 19 N.Y.3d at 313 (Smith, J., concurring). Judge

Smith also warned that the legislature may not have intended "[a] policy of draconian

enforcement directed at the most minor and peripheral of users" because such a policy "is

perhaps no more likely to eliminate child pornography than a similar policy would be to

eliminate illegal drugs." 19 N.Y.3d at 313 (Smith, J., concurring). In sum, Judge Smith

believed the questions were for the legislature to decide. And unless the legislature

"plainly said so," the court should not find that the legislature "intended to criminalize all

use of child pornography to the maximum extent possible." 19 N.Y.3d at 313 (Smith, J.,

concurring).

Ballantyne cites a similar case from the Oregon Supreme Court. In Barger, 349

Or. 553, the court was asked to determine whether a person could "be found guilty of

'possess[ing] or control[ling]' digital images of sexually explicit conduct involving a child

. . . based on evidence showing only that the person searched for and found such images

through the Internet on his or her computer?" 349 Or. at 555. The evidence showed that

police found eight images in the temporary internet file cache on Barry Barger's

computer. There was no evidence that Barger knew about the computer's automatic

caching function. Barger argued at trial that "even if it was possible to infer that [he] had

accessed the images through web browsing, that inference was insufficient to establish

[his] knowing possession or control of those images." 349 Or. at 557. The trial court

rejected his argument, and he was convicted of eight counts of encouraging child sexual

abuse in the second degree for possessing or controlling a visual recording of sexually

explicit conduct involving a child.

The Oregon Supreme Court reversed Barger's convictions. 349 Or. at 555. The

court examined the legislative intent underlying the enactment of the relevant law,

beginning with the meaning of the terms "'possess'" and "'control.'" 349 Or. at 558-59.

The court determined that the legislature used both terms to prohibit both physical

possession of an item as well as "exercis[ing] dominion or control (i.e., a restraining or

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directing influence) over it in some other way." 349 Or. at 560. Despite recognizing that

possession or control extends beyond mere physical possession, the court did not find that

viewing child pornography was included within the statute at issue. The court noted that a

separate statute prohibited exchanging value to obtain or view child pornography. 349 Or.

at 560-61. The court reasoned that possessing or controlling child pornography must be

different than obtaining or viewing it because the legislature chose to only punish

obtaining or viewing child pornography when value was exchanged. 349 Or. at 561. The

court recognized that courts in other jurisdictions had reached opposing conclusions

based on nearly identical theories but distinguished its holding by the fact that Oregon

had different statutes addressing "possession" and "viewing" of child pornography. 349

Or. at 567 n.13. As with many cases on this subject, there was a dissenting opinion which

would have held that viewing child pornography amounted to possession or control of it.

349 Or. at 571 (Kistler, J., dissenting) (citing State v. Ritchie, 349 Or. 572, 585-98, 248

P.3d 405 [2011] [Kistler, J., dissenting]).

Like Ballantyne, the State also identifies several cases which support its position

that evidence of viewing child pornography is sufficient to establish that a defendant has

possession or control of it. In People v. Josephitis, 394 Ill. App. 3d 293, 294, 914 N.E.2d

607 (2009), John Josephitis was convicted of possession of child pornography. The

evidence showed that Josephitis viewed child pornography on subscription websites. His

computer's temporary internet file cache contained files portraying child pornography.

Josephitis admitted that he viewed six of the files from the cache.

The Illinois Appellate Court affirmed Josephitis' conviction. 394 Ill. App. 3d at

294. The court noted that possession could be physical or constructive, and because

Josephitis did not knowingly save the images in his temporary internet files cache the

court examined caselaw on constructive possession. 394 Ill. App. 3d at 299. Looking at

caselaw involving narcotics, the court defined constructive possession as having

"knowledge of the presence of a substance and that it was his immediate presence and

21

control" which includes "both the intent and capability to control the substance." 394 Ill.

App. 3d at 299. The court noted that Josephitis "had the ability to copy, print, or send the

images to others" when they appeared on his screen, and though there was no evidence

that he actually took these actions it was not necessary. 394 Ill. App. 3d at 301. This,

coupled with evidence that Josephitis "actively sought out illicit Web sites, paid for

access, maintained the Web sites among his 'favorites,' and viewed numerous photos of

child pornography in the three weeks leading to his arrest" was sufficient for the court to

find that the State established possession of child pornography. 394 Ill. App. 3d at 301.

The court concluded that "[a]ny other finding would completely frustrate the purpose of

the child pornography statute." 394 Ill. App. 3d at 306.

The State also discusses Commonwealth v. Diodoro, 601 Pa. 6, 7, 970 A.2d 1100

(2009), another case in which the Pennsylvania Supreme Court analyzed "whether

accessing and viewing child pornography over the internet constitutes 'control' of such

pornography under [Pennsylvania law]." The evidence showed that there were 370

images related to child pornography on Anthony Diodoro's computer in either the

temporary internet cache files or in the unallocated space. A forensic examiner "testified

that finding the images of child pornography stored in the cache files indicated that

someone accessed the child pornography websites and by clicking the 'next' button or a

specific image, accessed and viewed the various images." 601 Pa. at 8. Diodoro stipulated

that he viewed the files on his computer while he was searching the internet for images of

women under the age of 16. Thirty of the images were unlawful child pornography.

To determine whether Diodoro's actions in seeking out and viewing the images

constituted "'control'" necessary to establish that Diodoro knowingly possessed child

pornography, the court considered the common meaning of the term. 601 Pa. at 17-18.

The court concluded:

22

"An individual manifests such knowing control of child pornography when he

purposefully searches it out on the internet and intentionally views it on his computer. As

the testimony in this case showed, in such a situation, the viewer has affirmatively

clicked on images of child pornography from different websites and the images are

therefore purposefully on the computer screen before the viewer. Such conduct is clearly

exercising power and/or influence over the separate images of child pornography because

the viewer may, inter alia, manipulate, download, copy, print, save or e-mail the images.

It is of no import whether an individual actually partakes in such conduct or lacks the

intent to partake in such activity because intentionally seeking out child pornography and

purposefully making it appear on the computer screen—for however long the defendant

elects to view the image—itself constitutes knowing control." 601 Pa. at 17-18.

The State also cites State v. Mercer, 324 Wis. 2d 506, 782 N.W.2d 125 (2010),

which is a little different factually but still lends support to the State's position.

Monitoring software on Benjamin Mercer's workstation computer alerted his employer

that he may be searching the internet for child pornography websites. A detailed review

of the computer logs showed that on 50 different days Mercer searched for and visited

websites containing child pornography. The evidence also showed that Mercer had taken

steps to delete his computer's temporary internet file cache. There was no evidence that

any of the images existed on the hard drive of Mercer's computer. The court framed the

question as "whether a person can knowingly possess images of child pornography he or

she views while browsing the Internet if there is no evidence that the images viewed were

in the computer hard drive." 324 Wis. 2d at 518.

After reviewing caselaw from other jurisdictions, finding Diodoro to be the case

with the most similar facts, the court said that its "impression of these cases is that courts

are more concerned with how the defendants got to the website showing child

pornography, than what the defendants actually did with the images." 324 Wis. 2d at 526.

The court further stated: "This fits within the definition of constructive possession: the

user could save, print or take some other action to control the images, and the user

23

affirmatively reached out for and obtained the images knowing that the images would be

child pornography as shown by the pattern of web browsing." 324 Wis. 2d at 526. The

court believed its holding was consistent with the purposes of statutes prohibiting child

pornography, which include protecting juveniles and destroying the market for child

pornography. 324 Wis. 2d at 527-28. The court was unconcerned with the fact that there

were no files discovered in Mercer's cache or anywhere else on his hard drive, noting that

"cache evidence is not required to prove possession because people can control an image

they view from the Internet just as they can from the cache." 324 Wis. 2d at 530.

Finally, the State cites State v. Linson, 896 N.W.2d 656 (S.D. 2017). Police

searched Todd Linson's computer and discovered that he had searched for child

pornography, and that several websites in Linson's browser history contained child

pornography. They seized Linson's computer and performed a forensic analysis on it. The

analysis revealed 41 images of possible child pornography in Linson's temporary internet

file cache and an additional 360 images of child pornography in the unallocated space on

Linson's computer. Ultimately the State charged Linson with five counts of possessing

child pornography—each count was associated with a file found in the cache. Linson was

convicted on all five counts and appealed. 896 N.W.2d at 658-59.

The court began with the common premise "that the presence of cached images or

files, standing alone, is not sufficient to establish that a defendant knowingly possessed

those cached images or files." 896 N.W.2d at 659. Instead, the court held, "cached images

or files are evidence of possession." 896 N.W.2d at 660. Linson argued "that using

cached images as evidence of possession amounts to the punishment of viewing child

pornography." 896 N.W.2d at 660. The court recognized that "[t]he federal government

and other states have prohibited viewing child pornography, but it is not explicitly

prohibited by South Dakota's statutes." 896 N.W.2d at 660. Nevertheless, the court still

found that based on the evidence, the jury could find that Linson took affirmative actions

24

"to seek out child pornography and place it on his computer at one point in time and for

whatever duration he chose, bringing it under his control." 896 N.W.2d at 663.

There are numerous other cases exploring this subject. E.g., Marsh, 389 P.3d at

102 (holding that "when a computer user seeks out and views child pornography on the

internet, he possesses the images he views"); New v. State, 327 Ga. App. 87, 93-94, 755

S.E.2d 568 (2014) ("[A] computer user who intentionally accesses child pornography

images on a website 'gains actual control over the images, just as a person who

intentionally browses child pornography in a print magazine "knowingly possesses" those

images, even if he later puts the magazine down.'"); People v. Flick, 487 Mich. 1, 4, 790

N.W.2d 295 (2010) (finding that a person knowingly possesses child sexually abusive

material when the person purposefully seeks out depictions of such material and views

them online).

We now must determine whether possession, as that term is defined in the sexual

exploitation of a child statute, encompasses accessing and viewing child pornography on

the internet, or whether the computer user must take some additional affirmative act of

control like printing, downloading, or saving.

Some of the cases cited by Ballantyne are distinguishable. In the Oregon Supreme

Court's decision in Barger, for example, Oregon's legislature had chosen to specifically

criminalize viewing child pornography in exchange for value. Because the legislature had

designated viewing as a crime in one context and not another, the court concluded that

the legislature intended to criminalize different behavior. Barger, 349 Or. at 560-61. In

Kent, the New York Court of Appeals found it notable that federal courts require that

digital images be connected to something tangible. 19 N.Y.3d at 301. In Kansas,

however, there is no such requirement. The defendant must only possess a "visual

depiction" with no requirement that it be reduced to a tangible form. K.S.A. 2018 Supp.

21-5510(a)(2).

25

The focus in Kansas' sexual exploitation of a child statute is on any visual

depictions of a child under 18 years of age, not the medium by which they are depicted.

A person can control a visual depiction on a webpage in many of the same ways as a

person can possess a photograph. A person can view it, copy it, sell it, or carry it around

(especially if the image is on a portable electronic device like a laptop or mobile phone).

In some ways, a person who possesses an image on a webpage has more options than a

person who possesses a photograph because an image on a webpage will not deteriorate

in the same way as a physical photograph. It can also be manipulated more easily—a

person can quickly zoom in on the image, duplicate it, or send it to others, among other

actions.

We believe that possession of child pornography found on computers may be

analyzed under the familiar principles of constructive possession. For example, if we

analyzed this child pornography case under the familiar principles of constructive

possession of an illegal drug case, proof of actual possession in a nonexclusive

possession case is not required. Instead, proof of constructive possession will suffice. For

instance, in a nonexclusive possession case, ownership or occupancy of a home or a

vehicle in which illegal drugs are found can be circumstantial evidence of possession.

Indeed, to support a conviction of an accused based on constructive possession in a

nonexclusive possession case, the State, for example, must point to evidence of

ownership or control of the home or vehicle, plus acts, statements, or conduct of the

accused or other facts or circumstances that tend to show that he or she was aware of the

presence and character of the contraband and that he or she had "'joint . . . control over

[the contraband] with knowledge of and intent to have such control.'" See State v. Rosa,

304 Kan. 429, 434-35, 371 P.3d 915 (2016).

For these reasons, we interpret the definition of possession, as that term is used in

K.S.A. 2018 Supp. 21-5510(a)(2), to include knowingly accessing and viewing child

pornography when a defendant has joint or exclusive control over a visual depiction with

26

knowledge of or intent to have such control or knowingly keeps the visual depiction in a

place where the defendant has some measure of access and right of control over it on the

internet. See K.S.A. 2018 Supp. 21-5202(i) (defining the term "knowingly"); K.S.A.

2018 Supp. 21-5111(v) (defining the term "possession").

Did the State present sufficient evidence to show that Ballantyne possessed the

charged images?

To determine what possession means under K.S.A. 2018 Supp. 21-5510(a)(2), we

must consider the statutory requirements under K.S.A. 2018 Supp. 21-5111(v) and

K.S.A. 2018 Supp. 21-5510(d)(5). First, we must consider the State's contention that

"there is no requisite mental state in [K.S.A. 2018 Supp. 21-5510(a)(2)] that the State is

required to prove." Then the State later states that K.S.A. 2018 Supp. 21-5510(a)(2) "does

not require the State prove a culpable mental state, therefore any of the three mental

states—intentionally, knowingly, or recklessly—will suffice. K.S.A. 21-5202(e)." We

disagree with the State's contention. The State, however, later acknowledged in its brief

that K.S.A. 2018 Supp. 21-5510(a)(2) does require the State to prove that Ballantyne

possessed the visual depiction. And the State further acknowledged, citing K.S.A. 2018

Supp. 21-5111(v) as its authority, that possession does require the person to knowingly

have control over an item or to knowingly keep an item in a place where the person has

some measure of access and right of control.

We agree that K.S.A. 2018 Supp. 21-5510(a)(2), the sexual exploitation of a child

statute, does not mention a knowledge requirement on its face. The plain language of

K.S.A. 2018 Supp. 21-5510(a)(2) contains two mental states: one on its face and the

other enclosed within the definition of the word "possession," which applies to crimes

involving sexual exploitation of a child. See K.S.A. 2018 Supp. 21-5111(v) (defining the

term "possession"). To begin with, K.S.A. 2018 Supp. 21-5510(a)(2) requires possession

to be committed "with intent to arouse or satisfy the sexual desires or appeal to the

27

prurient interest of the offender or any other person." See K.S.A. 2018 Supp. 21-5202(h)

(defining the term "'with intent'").

Next, the statutory definition of the word "'possession'" under K.S.A. 2018 Supp.

21-5111(v) breaks the definition into two halves. By this definition, the conduct required

for possession is explained. The first half of the definition defines possession as "having

joint or exclusive control over an item with knowledge of or intent to have such control."

The second half of the definition defines possession as "or knowingly keeping some item

in a place where the person has some measure of access and right of control." The

possessed item under K.S.A. 2018 Supp. 21-5510(a)(2) is the "visual depiction of a child

under 18 years of age," which is defined as "any photograph, film, video picture, digital

or computer-generated image or picture, whether made or produced by electronic,

mechanical or other means," and this definition would include the 25 images and the

video found on Ballantyne's computer. See K.S.A. 2018 Supp. 21-5510(d)(5).

Ballantyne argues that the State could not prove that he knowingly possessed the

26 files on the computer because the files could have gotten on his computer through

some automatic function without him knowing about it. To determine what this word

knowingly means under K.S.A. 2018 Supp. 21-5510(a)(2), we must consider the statutory

definition under K.S.A. 2018 Supp. 21-5202(i): "A person acts 'knowingly,' or 'with

knowledge,' with respect to the nature of such person's conduct or to circumstances

surrounding such person's conduct when such person is aware of the nature of such

person's conduct or that the circumstances exist." In this context, the term "nature"

commonly means "[a] fundamental quality that distinguishes one thing from another; the

essence of something." Black's Law Dictionary 1238 (11th ed. 2019). Thus, knowingly

means that the evidence must show that the person was aware of the presence and

character of the specific contraband possessed and that the person was consciously in

possession of the specific contraband. See State v. Rizal, 310 Kan. 199, 207, 445 P.3d

734 (2019).

28

Ballantyne claimed that the police told him that a man had hacked into his

computer and placed child pornography on his computer. The first half of the possession

definition in K.S.A. 2018 Supp. 21-5111(v)—"having joint or exclusive control over an

item with knowledge of or intent to have such control"—involves a possession that need

not be exclusive because of the use of the word "joint" in the clause. The use of the words

"joint or exclusive" would seem to enumerate a single class of words possessing

alternative qualifications. Thus, the use of the word "joint" in the statutory definition

would be an alternative qualification to the word "exclusive." The word "joint" in the

legal context generally signifies shared or collective responsibility (being two or more

persons) or shared property ownership. Also, Black's Law Dictionary defines the word

"joint" as follows: "(Of a thing) common to or shared by two or more persons or entities

. . . . (Of a person or entity) combined, united, or sharing with another." Black's Law

Dictionary 1002 (11th ed. 2019). So, the first half of the definition under K.S.A. 2018

Supp. 21-5111(v) would allow a visual depiction of child pornography to be possessed by

more than one person simultaneously.

The State pursued a constructive possession theory for counts 1-25 by arguing that

Ballantyne possessed the files when he viewed them on the internet. For example, the

State claims that "[a] person had to turn on the computer, download, or browse these

images from the internet for these images to have been later found in unallocated space."

In response, Ballantyne argues that "[t]he act of navigating to a website, resulting in

images on a browser page, is not enough to constitute the 'possession' of the images under

the sexual exploitation statute." The second half of the possession definition in K.S.A.

2018 Supp. 21-5111(v)—"or knowingly keeping some item in a place where the person

has some measure of access and right of control"—involves a possession that need not be

either exclusive or actual. It is sufficient that the person knowingly keeps the contraband

involved in a place where the person has some measure of access and that contraband is

subject to that person's right of control. Under these circumstances, a person may

constructively possess the contraband.

29

Thus, to convict a defendant of sexual exploitation of a child for possession of

child pornography under K.S.A. 2018 Supp. 21-5510(a)(2), we hold that the State must

prove that a defendant had knowledge of the nature of the visual depiction—meaning,

that defendant either knew the essential character or the identity of the visual depiction

and that defendant had joint or exclusive control over the visual depiction with

knowledge of or intent to have such control or that the defendant knowingly kept the

visual depiction in a place where the defendant had some measure of access and right of

control. "Control" is not defined by statute, but Black's Law Dictionary defines it as "[t]o

exercise power or influence over." Black's Law Dictionary 416 (11th ed. 2019); see also

K.S.A. 2018 Supp. 21-5111(v) ("possession"); K.S.A. 2018 Supp. 21-5202(i)

("knowingly"). Simply put, the State must point to evidence of facts, statements, or

conduct of the defendant or other facts or circumstances which tend to show that the

defendant was knowingly aware of the presence and character or the identity of the visual

depiction and that the depiction was consciously subject to his or her control and

influence.

In its brief, the State maintained that the best way to consider Ballantyne's

insufficiency of the evidence claims is by differentiating the factual dissimilarities

encountered between the images of counts 1-25 and the video in count 26. The State

emphasized that counts 1-25 should be determined separately from count 26 because

counts 1-25 were completely different from count 26. In driving home this point, the

State gave several examples why counts 1-25 were very different from count 26: (1) that

the images underlying counts 1-25 were all in the unallocated space of the computer or

were deleted files; (2) that none of the images in counts 1-25 were able to be recalled by

the user anymore; and (3) that many of the files involving counts 1-25 were missing

details—such as whether the computer user or the computer downloaded the images or

whether Ballantyne or the computer deleted the files. Counts 1-25 and count 26 are

utterly separated by these distinctions encountered in counts 1-25. Thus, these factual

dissimilarities between counts 1-25 and count 26 cut against the legal sufficiency of the

30

State's proof that Ballantyne was knowingly aware of the essential character or the

identity of the images underlying counts 1-25 and that those images were consciously

subject to his control. Indeed, this was something that the State needed to prove beyond a

reasonable doubt to obtain Ballantyne's conviction of counts 1-25 under the statutory

definition of K.S.A. 2018 Supp. 21-5202(i) (defining the term "knowingly").

We now turn to the question of whether the State presented sufficient evidence to

support Ballantyne's convictions. Because we agree with the State that the evidence for

counts 1-25 and for count 26 is utterly separated by the contrast of the evidence

encountered in them, we will discuss them separately.

Counts 1-25

There was no direct evidence that Ballantyne viewed the 25 files found in the

unallocated space that formed the basis for his convictions. Thus, the State had to prove

possession with circumstantial evidence. The fact-finder may make reasonable inferences

based on the established circumstances of the case. But convictions based on

"circumstantial evidence '"can present a special challenge to the appellate court" because

"'the circumstances in question must themselves be proved and cannot be inferred or

presumed from other circumstances.'"'" State v. Banks, 306 Kan. 854, 859, 397 P.3d 1195

(2017). "Where the State relies on such inference stacking, i.e., where the State asks the

jury to make a presumption based upon other presumptions, it has not carried its burden

to present sufficient evidence." 306 Kan. at 859. Ballantyne argues that his convictions

were based on impermissible inference stacking.

To begin, it is worth noting that the State's evidence was sufficient to establish that

Ballantyne viewed child pornography on his computer. The presence of child

pornography on his computer, his search history, and his admission that he viewed child

pornography all provided a basis for the jury to reasonably infer that Ballantyne accessed

31

and viewed child pornography. But the State did not charge Ballantyne with generally

viewing child pornography—the State charged Ballantyne with possession of 25 images

or files in the unallocated space of his computer. Then we must pause to ask two

questions: Did the State present sufficient evidence from which the jury could infer (1)

that Ballantyne knowingly possessed the 25 images found in the unallocated space of his

computer which tended to show that he knowingly accessed and viewed the images over

which he had "joint or exclusive control over [the images] with knowledge of or intent to

have such control" or (2) that he "knowingly [kept] some [images] in a place where [he]

ha[d] some measure of access and right of control" over the images? See K.S.A. 2018

Supp. 21-5111(v) (defining the term "possession").

There was no question that the 25 files were found in the unallocated space on

Ballantyne's computer and that Ballantyne possessed the computer. Nevertheless,

Detective Randolph testified that the 25 images found in the unallocated space could not

be recalled by Ballantyne without the assistance of specialized software which was not

present on Ballantyne's computer. There was no evidence that Ballantyne tried to access

the files, or even that he knew about the existence of the files in the unallocated space at

all. Also, in contrast with the evidence for count 26, the State had very few details on the

files forming the basis for counts 1-25. Detective Randolph could not determine whether

Ballantyne intentionally downloaded the files or whether they arrived on Ballantyne's

computer through some automatic function. Similarly, he could not say whether

Ballantyne deleted the files or whether they were deleted automatically. He did not know

when the files arrived on the computer or when they were deleted from the allocated

space. Detective Randolph also could not determine whether Ballantyne viewed any of

the files or whether they had ever been visible on his computer screen.

As stated earlier, the mere presence of child pornography in the unallocated space

of a computer cannot be shown to be in the accused's possession because the material in

the unallocated space cannot be accessed or seen without specialized software. See

32

United States v. Flyer, 633 F.3d 911, 918 (9th Cir. 2011); United States v. Moreland, 665

F.3d 137, 152 (5th Cir. 2011) (an accused cannot be convicted of possessing child

pornography solely on evidence of the presence of photographs in the unallocated space).

There must be some additional evidence to prove knowing possession of files in the

unallocated space. The State failed to present that additional evidence here. Indeed,

because the State could not show that Ballantyne knowingly accessed and viewed the 25

images found in the unallocated space of his computer, it failed to show that he either had

joint or exclusive control over the 25 images in the unallocated space of his computer

with knowledge of or intent to have such control. Thus, measured by the first half of the

statutory definition for possession under K.S.A. 2018 Supp. 21-5111(v), the State's

evidence would have been insufficient to support Ballantyne's convictions for counts 1-

25 under the theory that he knowingly accessed and viewed the images which he had

"joint or exclusive control over [counts 1-25] with knowledge of or intent to have such

control."

The next question we must address is whether the State proved that Ballantyne

knowingly viewed and kept some images in a place where he had some measure of

access and right of control over the images. The State points to evidence that Ballantyne

repeatedly searched for child pornography, visited websites associated with child

pornography, and that he viewed child pornography as a basis for the jury to reasonably

infer that he viewed the files at issue. While this evidence all shows that Ballantyne had a

general propensity for accessing and viewing child pornography, none of the evidence

provided a basis for concluding that he knowingly viewed and kept any of the specific 25

images charged in a place where he had some measure of access and right of control over

the images. As Ballantyne argues, "[S]eeking out child pornography on the internet does

not establish the knowing possession of the specific images charged by the State. And,

Mr. Ballantyne never said he viewed the specific images charged."

33

Also, Ballantyne points out in his reply brief, he is unlike the defendants described

in the State's brief because those defendants viewed or retrieved the images they were

charged with. In Josephitis, the defendant admitted that he viewed the specific images at

issue. 394 Ill. App. 3d at 296. In Diodoro, the defendant also stipulated that he viewed

the specific images at issue. 601 Pa. at 8; see also Mercer, 324 Wis. 2d at 518, 527

(Mercer affirmatively pulled up and viewed the images of child pornography); Linson,

896 N.W.2d at 662-63 (Linson affirmatively acted to place the images on the computer).

On the other hand, Ballantyne never admitted to viewing the specific images for which he

has been charged. Because the State failed to present sufficient evidence that Ballantyne

knowingly viewed and kept any of the images charged in counts 1-25, his convictions

cannot be upheld under the constructive possession language of the second half of K.S.A.

2018 Supp. 21-5111(v) ("or knowingly keeping some item in a place where the person

has some measure of access and right of control").

In summary, the record shows that the only evidence that specifically tied

Ballantyne to the images charged in counts 1-25 was the discovery of the files in the

unallocated space on his hard drive. The State, however, was unable to prove whether the

images ended up in the unallocated space because Ballantyne deleted them or because

some function of the computer such as the automatic deletion function of the temporary

internet file cache. There was also no conclusive evidence as to how the files got on the

computer in the first place. Ballantyne could have downloaded them, or the computer

could have downloaded them without Ballantyne ever seeing them. As discussed in

Kuchinski, 469 F.3d at 861, among many other cases, this evidence is insufficient on its

own to establish knowing possession of the files in the unallocated space because it is not

possible to conclude beyond a reasonable doubt if the images were knowingly accessed

and viewed by Ballantyne.

So, we reverse the 25 convictions for sexual exploitation of a child related to the

25 images found in the unallocated space of Ballantyne's computer. Because we reverse

34

these convictions, it is not necessary for us to address Ballantyne's alternative argument

that the State failed to prove that he committed the crimes within the time frame charged

in the complaint.

Count 26

As we have reversed those 25 convictions for sexual exploitation of a child, we

next must consider Ballantyne's sufficiency of the evidence challenge as to his possession

of child pornography regarding count 26—a video found in the recycle bin of his

computer.

Ballantyne advances several theories of innocence, including that Detective

Randolph did not testify that the computer user downloaded and saved image 26. Also,

Ballantyne argues that image 26 was an MP4 file, which the computer could have

downloaded into the cache. He also argues that there was no proof that he viewed this

image or knew what the file was or how long the file was accessed, or whether the user

watched the entire video, did not watch it, or took some other action. As we mentioned

previously, we believe that possession of child pornography found on computers may be

analyzed under the familiar principles of constructive possession. So, we will employ

again these principles of constructive possession.

Along with the above arguments, Ballantyne claimed that when the police went to

his residence, they told him that a woman knew a man who was a computer hacker, and

the woman thought the man had hacked into Ballantyne's internet and sent child

pornography to him. Ballantyne's claim indicated an innocent explanation as to why child

pornography would be found on his computer. Nevertheless, at trial, Detective Carswell

said that the officers did not tell Ballantyne anything of that nature. In retrospect,

Ballantyne's claim showed that he was aware that his computer contained images of child

pornography.

35

Further, the evidence shows that the 26th file found in Ballantyne's recycle bin

was created on December 11, 2018, at 1:59 p.m. Also, the video file was originally

located in the downloads folder. But it was moved to the recycle bin that same day at

2:07 p.m. The evidence shows that the file was accessed one time before being moved to

the recycle bin.

Because Ballantyne's computer had pornographic images found in the unallocated

space of his computer, because his internet browsing history showed that he had visited

websites associated with child pornography, and because he admitted to police that he

occasionally viewed some videos and pictures of young children out of curiosity when

those videos and pictures would pop up while he was browsing adult pornography

websites, this established a greater likelihood that Ballantyne, not a virus or a hacker,

website, or other family member, put the pornographic video on his computer found in

the recycle bin. Indeed, Detective Randolph did not find any viruses or malware on

Ballantyne's computer that would indicate that someone else put the child pornography

files on his computer. Although the State could not prove Ballantyne knowingly

possessed the 25 images found in the unallocated spaces of his computer, their presence

nevertheless was a circumstance probative of his possession of the video file.

Here, the record shows that expert testimony established that computer users can

access and control files placed by the user into the recycle bin. So, the deleted video file

in Ballantyne's recycle bin was accessible to him, and he could readily restore the video

file for his use. Under these facts, Ballantyne constructively possessed the video in the

recycle bin of his computer. And measured by the statutory definition for possession

under K.S.A. 2018 Supp. 21-5111(v), the State's evidence was sufficient to meet the

second prong of this statutory definition—"or knowingly keeping some item in a place

where the person has some measure of access and right of control."

36

Another reason—during a police interview with Ballantyne—he stated that he had

been using the laptop for the past four years and that no one else in the house used his

laptop. This evidence would be evidence of exclusive control because it showed that

Ballantyne had exclusive use of the laptop for four years before his arrest. So, this

evidence considered in its entirety, supported a finding that Ballantyne was knowingly

aware of the presence of and the nature of the video in the recycle bin. Furthermore, the

evidence showed that Ballantyne knowingly exercised exclusive control and influence

over the video because it did not require any specialized software necessary to access and

retrieve the video. We therefore conclude that Ballantyne was knowingly aware of the

presence and of the nature of the illicit video in the recycle bin of his computer and that

he exercised exclusive control over the video with knowledge of or intent to have such

control. See K.S.A. 2018 Supp. 21-5111(v) ("having joint or exclusive control over an

item with knowledge of or intent to have such control").

As we stated earlier, our standard of appellate review is well-established. The

appellate court examines all the evidence in a light most favorable to the prevailing

party—the State—to determine whether a rational fact-finder could have found the

defendant guilty beyond a reasonable doubt. Because an appellate court does not reweigh

evidence, resolve evidentiary conflicts, or make credibility determinations, a reviewing

court need only look at the evidence in favor of the verdict to determine whether the

essential elements of a charge are sustained. State v. Zeiner, 316 Kan. 346, 350, 515 P.3d

736 (2022). Viewed in the light most favorable to the State, a rational fact-finder could

find beyond a reasonable doubt that Ballantyne knowingly possessed the illicit video.

Thus, we affirm Ballantyne's conviction under count 26 for sexual exploitation of

a child related to the possession of the illicit video found in the recycle bin of his

computer.

37

Did prosecutorial error prejudice Ballantyne's right to a fair trial?

Because we find that the State presented sufficient evidence to support his

conviction for count 26, we must now address Ballantyne's other points of error. First is

Ballantyne's argument that the prosecutor misstated the facts in closing argument and that

the error prejudiced his right to a fair trial. The appellate court uses a two-step process to

evaluate claims of prosecutorial error:

"To determine whether prosecutorial error has occurred, the appellate court must decide

whether the prosecutorial acts complained of fall outside the wide latitude afforded

prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that

does not offend the defendant's constitutional right to a fair trial. If error is found, the

appellate court must next determine whether the error prejudiced the defendant's due

process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional

constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,

87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if

the State can demonstrate 'beyond a reasonable doubt that the error complained of will

not or did not affect the outcome of the trial in light of the entire record, i.e., where there

is no reasonable possibility that the error contributed to the verdict.' [Citation omitted.]"

State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).

Error

Ballantyne identifies three instances in which he argues that the prosecutor

misstated the facts during closing argument. Prosecutorial error occurs when a prosecutor

states facts that are not in evidence. Banks, 306 Kan. at 862. "In determining whether a

particular statement falls outside of the wide latitude given to prosecutors, the court

considers the context in which the statement was made, rather than analyzing the

statement in isolation. [Citation omitted.]" State v. Ross, 310 Kan. 216, 221, 445 P.3d 726

(2019). So, we will review the relevant portions of the closing arguments.

38

In the initial part of his closing argument, the prosecutor accurately recited the

evidence on counts 1-25 insofar as he said that the files were found in the unallocated

space of the hard drive, and because of that "no one could say when they were put there,

or how they were put there, etc." Regarding count 26, the prosecutor said that it "was

downloaded" (not specifying whether Ballantyne or the computer downloaded it) and

"existed . . . in the main part of the computer, for lack of a better term, for seven minutes"

after which "it was sent to the recycle bin."

In response, defense counsel acknowledged that the images were found on

Ballantyne's computer but argued that they could have arrived there inadvertently by

being downloaded without Ballantyne's knowledge that they appeared on a website, or by

showing up uninvited in an advertisement or pop-up. Defense counsel stressed that there

was no direct evidence that Ballantyne watched the video in the recycle bin or viewed the

images charged in counts 1-25. Defense counsel also argued that viewing something does

not amount to possession.

During his rebuttal argument, the prosecutor made the three statements at issue.

The prosecutor first suggested that Ballantyne downloaded zip files containing child

pornography, stating:

"We know that this defendant, in the four months leading up to this, regularly

searched on child pornography sites. We know that he regularly downloaded; he told the

cops he didn't download. Some of you know what zip files are. Those are compressed

files that are put all in one batch. He downloaded multiple child pornography zips. You

heard the detective—I'm trying not to put words in the detective's mouth. You heard the

detective when he explained the Windows Timeline Activity to you. First of all, you see

the site he went to, then you, it says Apps, App in Use, and then following it says, Open

App, and you've got a time that the app was open. He downloaded zip files. Zip files,

ladies and gentlemen, on a regular basis. You can't get into a zip file unless you

download it.

39

"Some of the names on the zip files are, Page 257, Alicia, 5-year-old Anal Fuck.

That's a zip file. He downloaded and then br[oke] the zip file apart. Page 258, Pretty

Celia, 5-year-old Extreme. Zip file. Same page, 9-year-old Dildo Play. Another zip file,

downloaded and opened. Page 254, Pretty Less Forced Sex, 7-year-old. Another zip file.

". . . [Ballantyne] went to the seedy websites, on the Internet, and he downloaded

porn, ladies and gentlemen."

The evidence in this case does not support the prosecutor's statement. There was

no evidence that Ballantyne actively downloaded anything—much less multiple zip files

containing batches of child pornography. The State concedes that the prosecutor erred in

referencing zip files but argues that the error was a simple mistake in terminology that

did not prejudice Ballantyne's right to a fair trial. We will address the prejudice issue in

the prejudice section of our analysis.

Ballantyne also argues that the prosecutor misstated the facts in discussing the

26th charge, the file in the recycle bin. Regarding the 26th file, the prosecutor said, "[I]t

was there for seven minutes before it was sent to the recycle bin. . . . Seven minutes he

had it on the computer. Now, during that seven minutes he was in possession."

Here, Ballantyne characterizes the prosecutor's statement as ignoring that the file

may have been downloaded by the computer and that Ballantyne may have deleted the

file without viewing it. Nevertheless, the prosecutor's statement was consistent with

Detective Randolph's testimony about the file. The prosecutor was merely drawing an

inference—that Ballantyne possessed the file—from the facts presented. A prosecutor has

"wide latitude to draw reasonable inferences from the evidence in closing arguments. A

prosecutor does not err when adequately buttressing their inferential arguments with the

factual premises necessary to support their inferences, even in the absence of language

such as 'it is a reasonable inference that . . . .'" State v. Blevins, 313 Kan. 413, Syl. ¶ 3,

485 P.3d 1175 (2021). For this reason, we find that the prosecutor's second statement was

not error.

40

The third and final statement that Ballantyne challenges relates to counts 1-25. He

takes issue with a series of statements by the prosecutor related to the State's argument

that viewing amounts to possession of child pornography. The prosecutor began by

saying that "[t]he still photographs, when they appeared on his screen, he was in

possession of those. He got to choose what he did." Next, the prosecutor suggested that

"when an image is on your computer screen, you may not own that image . . . . But you're

in possession of the image that's on your screen." Finally, the prosecutor said, "When Mr.

Ballantyne downloaded these images, he was in control of those images."

Ballantyne contends that the prosecutor erred "by arguing facts or factual

inferences with no evidentiary foundation." Nevertheless, the prosecutor's statements

were more legal than factual in nature. The prosecutor was asking the jury to draw the

legal conclusion that Ballantyne possessed the images in question. This particular

statement did not misstate the facts but rather, as with the previous statement, it asked the

jury to draw an inference from those facts. Accordingly, we do not find that this

statement is erroneous.

Prejudice

Having found that the prosecutor misstated the facts by stating that Ballantyne

downloaded zip files containing child pornography, we will next determine whether the

error prejudiced Ballantyne's right to a fair trial.

The prosecutor's statement about the zip files was clearly problematic as it bore on

the issue of whether Ballantyne knowingly possessed the files found on his computer.

The statement was also made during the prosecutor's rebuttal argument—the last

argument the jury heard before beginning its deliberations. Nevertheless, the prejudicial

effect of the statement was mitigated by other factors, and because of this, there is no

reasonable possibility that the prosecutor's error contributed to the jury's verdict.

41

First, the prosecutor accurately stated the evidence in the first portion of his

closing argument because he acknowledged that the State could not prove whether the

files found on Ballantyne's hard drive were intentionally downloaded by Ballantyne or

downloaded by some automatic function of his computer. The prosecutor also repeated

this evidence in his rebuttal argument after his initial reference to Ballantyne

downloading the zip files, stating:

"There wasn't many things [Detective Randolph] could say about those first 25

things because the file information was deleted. But he did say there were three things we

can say: There had to be a human that operated that computer. That human had to go to a

child porn website, and then they would, the display would have either displayed on the

screen or he would have downloaded it, one or the other. Those zip files I told you about,

they got downloaded. Because that's what zip files do."

Of course, the prosecutor's reference to zip files in the statement quoted above is

inaccurate because there was no evidence that the files were zip files, but the statement

acknowledged that the images could have been downloaded automatically by the

computer and not intentionally by Ballantyne himself, as suggested by the prosecutor's

misstatement that Ballantyne downloaded multiple child pornography zip files. The fact

that the prosecutor's misstatement of the facts was isolated and clarified by the

prosecutor's other statements reduces the chance that the misstatement of fact improperly

influenced the jury.

Second, the evidence presented to the jury made no mention of Ballantyne

downloading zip files. There was ample testimony dedicated to allocated space,

unallocated space, cache files, and other matters, but none that referenced zip files. The

testimony was also very clear that the forensic examiner could not directly establish that

Ballantyne himself downloaded the files onto his computer, because there was always the

possibility that the files were downloaded by some automatic function of the computer.

Given the complete lack of testimony regarding the prosecutor's misstatement, the jury

42

could likely deduce that the prosecutor's statement was an error. Plus, the prosecutor,

along with the jury instructions, warned the jury that the prosecutor's statements were

arguments and not evidence. "[J]urors generally are presumed to follow their

instructions." State v. Slusser, 317 Kan. 174, 193, 527 P.3d 565 (2023).

Third, Ballantyne's counsel did not object to the prosecutor's misstatement of the

facts. We "may . . . figure the presence or absence of an objection into our analysis of the

alleged error." State v. Bodine, 313 Kan. 378, 406, 486 P.3d 551 (2021). If the

prosecutor's statements had been objected to, the prosecutor could have rephrased his

misstatements and made the same point—by maintaining that Ballantyne intentionally

sought out and viewed child pornography, files containing images, and videos of child

pornography, which were downloaded to his computer.

Overall, the State's argument that the prosecutor's error did not affect the outcome

of the trial in light of the entire record is more impactful than Ballantyne's claim of

prosecutorial error. For these reasons, we determine that the prosecutorial error argument

falls short of the mark and reversal is not warranted by the law.

Did the district court err by failing to instruct the jury on the culpable mental state

elements of intentionally and knowingly?

Ballantyne argues that the district court erred by failing to instruct the jury on the

definitions of the words "intentionally" and "knowingly"—the culpable mental states the

State had to establish to convict him of sexual exploitation of a child.

When analyzing jury instruction issues, appellate courts follow a three-step

process: (1) determining whether the appellate court can or should review the issue, in

other words, whether there is a lack of appellate jurisdiction or a failure to preserve the

issue for appeal; (2) considering the merits of the claim to determine whether error

43

occurred below; and (3) assessing whether the error requires reversal, in other words,

whether the error can be deemed harmless. State v. Holley, 313 Kan. 249, 253, 485 P.3d

614 (2021). Whether a party has preserved a jury instruction issue affects the appellate

court's reversibility inquiry at the third step. 313 Kan. at 254. When a party fails to object

to a jury instruction before the district court, an appellate court reviews the instruction to

determine if it was clearly erroneous. K.S.A. 2022 Supp. 22-3414(3).

Ballantyne did not object to the jury instructions provided to the district court. So,

we apply a clear error review if we find error in the second step of the analysis. "To

reverse for clear error, the court must be firmly convinced the jury would have reached a

different verdict had the instruction error not occurred. [Citation omitted.]" State v.

Brammer, 301 Kan. 333, 341, 343 P.3d 75 (2015). The burden of showing clear error is

on the defendant. State v. Martinez, 317 Kan. 151, 162, 527 P.3d 531 (2023).

Ballantyne asserts that the district court should have instructed the jury on the

definitions of "knowingly" and "intentionally" as provided in PIK Crim. 4th 52.010 (2021

Supp.). The PIK instruction is consistent with the statutory definitions of the terms in

K.S.A. 2018 Supp. 21-5202. Thus, the instruction would have been legally appropriate.

The instruction also would have been factually appropriate because the State had to prove

a knowing act and a specific intent. See K.S.A. 2018 Supp. 21-5510(a)(2) (prohibiting

possessing child pornography "with intent to arouse or satisfy the sexual desires or appeal

to the prurient interest of the offender or any other person"); K.S.A. 2018 Supp. 21-

5111(v) (stating that possession is a knowing act).

Even though the mental state instruction would have been both legally and

factually appropriate, we have consistently refused to find error when a district court fails

to define the terms "intentionally" or "knowingly" in jury instructions. See State v.

Collins, No. 121,112, 2021 WL 936048, at *6 (Kan. App. 2021) (unpublished opinion)

(listing cases that have rejected this argument). This is because "[a] term which is widely

44

used and which is readily comprehensible need not have a defining instruction." State v.

Norris, 226 Kan. 90, Syl. ¶ 4, 595 P.2d 1110 (1979). A court need only define a word if

its common lay definition differs from the legal definition. Collins, 2021 WL 936048, at

*6. "Knowingly" and "intentionally" do not fall into this category. They are "'widely used

words'" and "'readily comprehensible by individuals of common intelligence.'" 2021 WL

936048, at *6. "[I]t is a longstanding rule of this court that trial courts only have a duty to

define words within an instruction '"when the instructions as a whole would mislead the

jury, or cause them to speculate, that additional terms should be defined."' State v.

Armstrong, 299 Kan. 405, 440, 324 P.3d 1052 (2014) (quoting State v. Norris, 226 Kan.

90, 95, 595 P.2d 1110 [1979])." State v. Bacon, No. 114,951, 2017 WL 2403355, at *10

(Kan. App. 2017) (unpublished opinion). Thus, we conclude that the district court did not

err, much less commit clear error, and Ballantyne's argument is not warranted by the law.

Did cumulative errors deprive Ballantyne of his right to a fair trial?

Finally, Ballantyne argues that the cumulative effect of trial errors, namely the

prosecutor's impermissible argument and the district court's failure to instruct the jury on

the definitions of "intentionally" and "knowingly," warrants a new trial. Nevertheless, as

discussed in the previous section, the district court did not err in giving the jury

instructions. Thus, there is only one error. The cumulative error rule does not apply if

there are no errors or only a single error. State v. Gallegos, 313 Kan. 262, 277, 485 P.3d

We affirm in part and reverse in part.