Robert Jeffrey Kobman v. Commonwealth of Virginia
65 Va. App. 304
| Va. Ct. App. | 2015Background
- Police obtained and executed a search warrant at Kobman’s home after speaking with his wife; Kobman told an officer they would find what the warrant sought "in the nightstand and the pink file cabinet and in the computer."
- Investigators seized a desktop and a laptop, plus media cards; lubricating gel and napkins were found near the desktop computer.
- Forensic examination recovered 9 pornographic images from the desktop user account recycle bin labeled "Kobman," and 45 pornographic images from the unallocated space of the desktop (42) and laptop (3).
- The laptop had been issued to Kobman by his employer (the school) when purchased new; images in unallocated space were recovered using specialized forensic software that restores deleted/damaged data not visible to the OS.
- Commonwealth conceded, and the court agreed, that mere presence of images in unallocated space without other indicia of knowledge/dominion is insufficient to prove possession for the dates charged; convictions based on those 45 images were reversed and dismissed.
- The trial court’s conviction on nine counts for images found in the recycle bin was affirmed based on constructive possession evidence (recycle bin tied to Kobman account, his incriminating statement, physical items by the computer, and presence of other pornographic material on both machines).
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Kobman) | Held |
|---|---|---|---|
| Sufficiency to prove possession of images in unallocated space | Presence of images on defendant’s computers (unallocated space) supports constructive possession | Images in unallocated space are inaccessible without forensic software; no evidence Kobman knew of or could access them | Reversed and dismissed convictions based on 45 images in unallocated space (insufficient evidence of knowledge/dominion) |
| Sufficiency to prove possession of images in recycle bin | Recycle bin images tied to user account, plus defendant’s statement and circumstantial evidence show awareness and control | No direct proof Kobman viewed or placed images; alternative explanations (others, viruses) possible | Affirmed convictions for nine images in recycle bin (sufficient constructive possession evidence) |
| Challenge to statute’s definition/vagueness (digital image) | N/A (Commonwealth did not press separate response after concession) | Argues statute ambiguous re: ‘‘digital image’’ and applicability to damaged/deleted files | Court did not reach/need to resolve constitutional/vagueness challenges as they related to convictions that were reversed; only sufficiency for recycle-bin images adjudicated |
Key Cases Cited
- Terlecki v. Commonwealth, 65 Va. App. 13, 772 S.E.2d 777 (Va. Ct. App.) (constructive-possession framework for digital contraband)
- Kromer v. Commonwealth, 45 Va. App. 812, 613 S.E.2d 871 (Va. Ct. App.) (ownership/occupancy as probative of possession)
- Drew v. Commonwealth, 230 Va. 471, 338 S.E.2d 844 (Va.) (possession requires awareness of presence and character and dominion/control)
- Grant v. Commonwealth, 54 Va. App. 714, 682 S.E.2d 84 (Va. Ct. App.) (recognizing court may accept but should evaluate Commonwealth concessions)
- United States v. Flyer, 633 F.3d 911 (9th Cir.) (presence of files in unallocated space alone insufficient to prove possession)
- United States v. Moreland, 665 F.3d 137 (5th Cir.) (same: unallocated-space evidence alone cannot support possession conviction)