Dissemination of Child Pornography Requires Proof that Defendant Knew that He Was Disseminating Child Pornography

State v. McCauley, Minn.Ct.App., 9/4/2012.  A jury convicted Mr. McCauley of two counts of dissemination of child pornography, and twenty-two counts of possession of child pornography.  The computer police were surfing LimeWire, looking for users on that site who may be sharing contraband files, like porn.  Eventually, the computer police linked the computer that was sharing porn to Mr. McCauley’s wife, out in Plymouth.  Officers executed a search warrant on the McCauley’s computer.  They also questioned Mr. McCauley, who admitted that he enjoyed downloading adult pornography from LimeWire but sometimes he inadvertently got juvenile pornography instead.  He said that he immediately deleted those files.  A forensic examination of the hard drive found evidence of two juvenile pornography files that had been on the drive but since removed or deleted, and evidence of other contraband files as well. 

The main issue that Mr. McCauley raised on appeal was whether the dissemination and actual possession of child pornography are strict liability offenses.  The statute, Minn.Stat.617.247, in pertinent part says:

Subd. 3. Dissemination prohibited. (a) A person who disseminates pornographic work to an adult or a minor, knowing or with reason to know its content and character, is guilty of a felony . . . .
. . . .
Subd. 4. Possession prohibited. (a) A person who possesses a pornographic work or a computer disk or computer or other electronic, magnetic, or optical storage system . . . containing a pornographic work, knowing or with reason to know its content and character, is guilty of a felony . . . .

 

On the possession counts, the court of appeals rejects Mr. McCauley’s argument that these are strick liability offenses.  Rather, the statute, itself, requires that the possessor know or have reason to know the content and character of the item possessed.  On the dissemination counts, however, it’s a  different story.  The state has to prove, in addition to the knowledge requirement, that Mr. McCauley knew that he was disseminating child pornography.  Alas, however, because he did not object to this omission from the jury instructions, under plain error review he gets no relief.  He does, however, get two possession convictions vacated because they are lesser included offenses of the dissemination offenses.