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Published by the Indiana Office of Court Services

Browning v. State, No. 49A05-1110-CR-540, __ N.E.2d __ (Ind. Ct. App., July 17, 2012).

July 20, 2012 Filed Under: Criminal Tagged With: Appeals, M. Robb


ROBB, C.J.

Indiana Code section 35-42-4-4(b) provides:

(b) A person who knowingly or intentionally:

* * *

(2) disseminates, exhibits to another person, offers to disseminate or exhibit to another person, or sends or brings into Indiana for dissemination or exhibition matter that depicts or describes sexual conduct by a child under eighteen (18) years of age; . . .

* * *

commits child exploitation, a Class C felony.

Browning argues the State presented insufficient evidence that he knowingly disseminated child pornography. At most, he argues, the evidence supports a charge of possession of child pornography, which he was originally charged with before the State dismissed such charges. To disseminate for the purposes of the statute means “to transfer possession for free or for a consideration.” Ind. Code § 35-42-4-4(a)(1). A person knowingly engages in conduct when he is aware of a high probability that he is doing so. Gale v. State, 882 N.E.2d 808, 816 (Ind. Ct. App. 2008).

Detective Odier testified at trial and explained file-sharing programs such as LimeWire:

[T]he whole purpose of the file sharing program is in its name; you share files with other people. You can access files from other people on LimeWire and they can access what you determine you want to have shared. And part of the setup of LimeWire is determining . . . what folder you want your files to go into that you’re going to share with the world . . . . You specify a folder that has files in it that you will share with other people using this program.

Transcript at 59-60.

Browning’s statement to police officers reveals he knew his files on LimeWire were capable of being downloaded by others using the program. He acknowledged downloading child pornography in the past on at least one occasion, but he claimed he would delete such files rather than keep them on his computer. Nevertheless, he downloaded the files, they were on his computer when police officers retrieved it, and he knew files on his computer could be shared. Even if Browning did not open and view the files once they were downloaded, their filenames included several references indicating their contents were child pornography. Further, because he kept them in a folder to share with others, he should have known there was a high probability others would download the files. And Detective Odier did in fact download the files. The evidence sufficiently demonstrates Browning knowingly disseminated child pornography.
BAILEY, J., and MATHIAS, J., concur.

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