Trippel explained that there was no way to know where the image files came from, how they were placed on the computer (for example, whether they were viewed intentionally or popped up automatically while a user was looking at another website), or when they were created, modified, or viewed. Trippel indicated that the Gateway tower contained various viruses and that some viruses could make it possible for pornography to be stored on a computer without the user’s knowledge; that anyone using a virus to place the images in free space would not be able to access them; that files placed into free space remain there until they are written over by other files; and that when a cached temporary internet file is deleted, it goes into free space, at which time a forensic examiner cannot tell when the file was viewed. Wise’s brother testified that Wise purchased the computer at a flea market in August 2006.
Wise v. State, No. 02-09-00267-CR, 2011 WL 754415 (Tex.App.-Fort Worth Mar 3, 2011). Evidence deemed insufficient that D knowingly possessed the child porn discovered on his computer because D bought the computer second-hand at a flea market, the computer contained viruses capable of covertly placing images on the computer, and it was impossible to determine when the images were placed on, accessed, or deleted from, the computer.
Dissent: “the majority holds that when defendants possess illegal pornographic images on their computers but delete them and send them to their hard drives’ free space before the police discover them, the State cannot prove intentional or knowing possession of the images…. The majority mischaracterizes the evidence about the viruses on [D’s] computer. [The] State’s digital forensic examiner, testified that the computer had several viruses and then said that some viruses, hypothetically, are capable of remotely accessing a computer and storing images on it. [The forensic examiner] did not say that the viruses found on [D’s] computer served such a purpose. She did explain, however, that the probability of a malicious outsider using a virus to store child pornography in the free space of another computer is low…. [A] lack of direct evidence and the existence of alternative hypotheses will be common features of many cases in which illegal images have been deleted and reside in a computer’s free space.”
Here, the uncontroverted testimony that Wise bought the computer second-hand at a flea market and the State’s own expert witness’s testimony admitting that the computer contained viruses capable of covertly placing images on the computer; that Wise could not access the images; and that it was impossible to determine when the images were placed on to, accessed, or deleted from, the computer, do not meet the State’s burden to prove beyond a reasonable doubt that Wise knowingly or intentionally possessed the images.