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State v. Fodrini

Court of Appeals of Missouri, Eastern District, First Division

March 12, 2019

STATE OF MISSOURI, Respondent,
v.
DONALD A. FODRINI JR., Appellant.

          Appeal from the Circuit Court of St. Charles County Honorable Daniel G. Pelikan

          OPINION

          ANGELA T. QUIGLESS, J.

         Donald A. Fodrini Jr. ("Fodrini") appeals from the judgment of the Circuit Court of St. Charles County following a bench trial in which he was convicted of one count of promoting child pornography in the second degree and twenty-four counts of possession of child pornography. On appeal, Fodrini only contests his conviction for promoting child pornography in the second degree. Fodrini argues the circuit court erred in finding him guilty of this offense because the court did not require the State to prove Fodrini's culpable mental state when he unintentionally and unknowingly provided child pornography to a police officer. We affirm.

         Factual and Procedural History

         Viewed in the light most favorable to the circuit court's judgment, the following evidence was presented at trial. See State v. Chaney, 460 S.W.3d 13, 14 (Mo. App. E.D. 2014).

         In November 2014, Sergeant Adam Kavanaugh ("Sergeant Kavanaugh") of the St. Louis County Police Department identified a computer that was offering to distribute child pornography over the internet by means of a peer-to-peer file-sharing program called Ares. Sergeant Kavanaugh successfully downloaded three images from the computer, two of which he determined were child pornography. After investigating the internet protocol (or "IP") address associated with the computer, police confirmed the IP address was located at Fodrini's residence.

         Based on this evidence, on February 3, 2015, detectives with the St. Charles County Cyber Crime Task Force executed a search warrant at Fodrini's residence. The detectives informed Fodrini that they were investigating the possession and distribution of child pornography, and were looking for electronic devices in his home. During the search, the detectives seized Fodrini's personal computer as well as a thumb drive he had hidden in a nightstand. After agreeing to speak with the detectives, Fodrini admitted installing the Ares program on his computer, and using Ares to search for and download files containing child pornography. However, Fodrini stated he did not realize that Ares was a file-sharing program, or that other Ares users could access and download child pornography from his computer. Fodrini stated he had since deleted Ares from his computer because he "tried it" and "didn't really understand it." Fodrini could not recall when he deleted Ares, though, he stated he had the program for four or five months. The detectives subsequently arrested Fodrini.

         A forensic examination of Fodrini's computer revealed he had previously installed Ares and downloaded files containing child pornography from other Ares users. While the Ares program and the files had since been deleted from Fodrini's computer, police were able to recover evidence of complete and incomplete downloads of child pornography as well as the graphic names of the files. Police also recovered the search terms Fodrini used to search for child pornography within Ares. Additionally, police found various terms Fodrini used to search Google for child pornography as well as bookmarked images depicting child pornography. Moreover, a forensic examination of the thumb drive revealed it contained 4, 200 images[1] and approximately twenty-seven videos of child pornography.

         The State charged Fodrini with one count of promoting child pornography in the second degree, in violation of Section 573.035 RSMo 2000 (Cum. Supp. 2009), [2] and twenty-four counts of possession of child pornography, in violation of Section 573.037 RSMo 2000 (Cum. Supp. 2013). A bench trial was held. The State presented evidence that the purpose of the Ares program is to download and share files with other Ares users. Once Ares is installed, files downloaded through the program are automatically transferred to a "shared" folder on the user's desktop and, by default, are made available to other Ares users to download. Although the user has the option to change the default settings to prevent file sharing, in this case, Fodrini did not change the settings, which made the files in his "shared" folder available to other Ares users, and allowed Sergeant Kavanaugh to access and download the images of child pornography. By contrast, Fodrini's theory of defense was that he was unaware of Ares's default settings or that it was a file-sharing program, and, therefore, he could not have knowingly provided child pornography to Sergeant Kavanaugh.[3]

         Prior to entering judgment, the circuit court asked the parties for additional briefing to address the issue of "how the use of a peer-to-peer file sharing network in this particular case complies with promoting, possession with intent to promote, and/or to promote child pornography." After the parties submitted their briefs, the circuit court found Fodrini guilty on all counts. At the sentencing hearing, the circuit court stated, "The facts in the trial were thin on promoting but . . . it was resolved by reference to case law and statute." The circuit court sentenced Fodrini to concurrent terms of one year imprisonment for promoting child pornography, and ten years' imprisonment for each count of possession of child pornography. This appeal follows.

         Standard of Review

         In reviewing the sufficiency of the evidence in a court-tried case, an appellate court's role is limited to determining whether the State presented sufficient evidence from which a trier of fact could have reasonably found the defendant guilty. State v. Brooks, 446 S.W.3d 673, 674 (Mo. banc 2014). This Court accepts as true all evidence favorable to the State, including all favorable inferences drawn therefrom, and disregards all evidence and inferences to the contrary. State v. Wurtzberger, 265 S.W.3d 329, 335 (Mo. App. E.D. 2008). Circumstantial evidence is given the same weight as direct evidence in considering the sufficiency of the evidence. State v. Cerna, 522 S.W.3d 373, 378 (Mo. App. E.D. 2017).

         "When reviewing the sufficiency of evidence supporting a criminal conviction, the Court does not act as a 'super juror' with veto powers, but gives great deference to the trier of fact." State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011) (quoting State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998)). Further, "this Court will not weigh the evidence anew since 'the fact-finder may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances and other testimony in the ...


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