WISCONSIN COURT OF APPEALS
Benjamin W. Mercer,
Jul 1, 09
David R. Schanker
Clerk of Supreme Court
CERTIFICATION BY WISCONSIN COURT OF APPEALS
Before Brown, C.J., Snyder and Neubauer, JJ.
Pursuant to Wis. Stat. Rule 809.61 (2007-08) this court certifies the appeal in this case to the Wisconsin Supreme Court for its review and determination.
The law in
Does a person knowingly possess child pornography when he or she merely views a digital image of child pornography?
In December 2002, Benjamin W. Mercer’s employer installed a software monitoring package that monitored and stored a log of employees’ computer usage on all employee computers. The software logged the date and time of the employee’s Internet activity and use of other computer programs. In 2004, his employer activated the software’s alert function, so that it would receive an e-mail alert when an employee typed a vulgar, threatening or otherwise questionable word. The alert listed the employee who typed the word and what program the employee was in. Mercer had more alerts from his computer usage than other employees, so his employer had the City of Fond du Lac Police Department review the logs of Mercer’s Internet activity. The logs revealed visits to a number of Web sites displaying images of children posing in various states of undress or in the nude.
On October 27, 2005, the State filed an information charging Mercer, inter alia, with fourteen counts of possession of child pornography in violation of Wis. Stat. § 948.12(1m). The State’s evidence for these charges was the logs and the images recreated from the Web sites recorded in the logs.
It should be noted that the State also charged Mercer with an additional nineteen counts of possession of child pornography based on digital images stored on Mercer’s hard drive. These nineteen counts were based on other evidence not derived from the software program logs. The evidence for these counts included images on the unallocated hard drive space of Mercer’s computer. The complaint stated that “those images were apparently temporarily stored on the hard drive in that ‘unallocated space’ after having been accessed and viewed through that computer and then deleted by the user.” In other words, Mercer did manipulate the images in counts 1-19 by clicking on thumbnails. The court dismissed three of the counts and the jury found him not guilty on the rest of these counts. Therefore, these counts are not relevant to the issue being certified.
As to the fourteen counts that are the subject of the certification, these counts also went before the jury and the trial court gave the following instruction:
In cases involving digital images, if you are satisfied that the defendant intentionally visited child pornography websites when [sic] contained child pornography images; and (a) acted on or manipulated the child pornography image; or (b) viewed the child pornography image knowing that his web browser automatically saved the image in the temporary Internet cache file; you may find knowing possession of such images.
In formulating this jury instruction, the trial court explained that it closely followed State v. Lindgren, 2004 WI App 159, ¶27, 275 Wis. 2d 851, 687 N.W.2d 60, which we will discuss below. The jury found Mercer guilty of all fourteen counts. On appeal, Mercer challenges the trial court’s jury instruction on the meaning of knowing possession.
Knowing possession is
the first of four elements that the State must prove to support a possession of
child pornography charge. Wis. Stat. § 948.12(1m)(a);
In Lindgren, we explained
that the defendant knowingly possessed child pornography when he “repeatedly
visited child pornography Web sites, clicked on thumbnail images to create
larger pictures for viewing, accessed five images twice, and saved at least one
image to his personal folder.” Lindgren,
In Tucker, the Tenth Circuit
found that the defendant had knowing possession of the images saved in his Web
browser cache file despite the defendant’s argument that he did not possess the
files because the computer’s automatic saving of thumbnail pictures was
involuntary. Lindgren, 275
Mercer argues that Lindgren and Tucker create requirements that apply to all findings of knowing possession based on digital images. He posits that the jury must find that he viewed the digital images of child pornography and acted on or manipulated the images and knew that his Web browser would automatically save the images so that he could access them later. Thus, he asserts that the jury instruction was inappropriate because it would allow the jury to find knowing possession when the defendant merely viewed digital images of child pornography on a Web site.
The State counters that the extra evidence is not always necessary. It asserts that Lindgren and Tucker present only examples of knowing possession, not requirements. Therefore, it contends that the jury could find possession without determining that the defendant either “acted on or manipulated the child pornography image” or “viewed the child pornography image knowing that his web browser automatically saved the image in the temporary Internet cache file.”
Separate from the parties arguments, we independently note that the Tucker court also made a point of saying it was not deciding the issue presented in this appeal, where there is no evidence of the charged images on Mercer’s computer’s temporary Internet files or cache, nor any evidence that Mercer otherwise saved or manipulated the images. Tucker, 305 F.3d at 1205 n.16. We have found no court that has clearly addressed this issue head on. Essentially, this case offers our supreme court the opportunity to be the first court to address whether knowing possession may include merely viewing a digital image on a Web site with a factual situation where the charges are based solely on the accused viewing digital images.
We note further that
the defendant in Lindgren suggested certain consequences of a decision which
would allow a finding of knowing possession when an accused merely views
digital images on a Web site. See Lindgren,
 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 See State
v. Lindgren, 2004 WI App 159, ¶¶26-27, 275
 A Wisconsin DOJ special agent did testify that when he interviewed Mercer, Mercer admitted to knowing that “he was deleting temporary Internet files, cookies and history files.” But, Mercer denies knowing that his actions would save the image on his computer. More to the point, though, the State did not provide any evidence that the images charged in these fourteen counts (counts 20-33) were ever automatically saved when Mercer viewed them. The State’s computer forensic expert testified that there was no evidence that any of those images ever “made it to [Mercer’s] machine,” either in the temporary Internet files or in the unallocated hard drive space, which is where the images would go when the temporary Internet files are deleted. The State, however, contends that the lack of evidence of the images on Mercer’s hard drive is irrelevant.