State v. Riley, 2013 SD 95

October 20, 2009: Task Force detective using enhanced peer-to-peer software (EP2P) downloaded a full video showing child pornography and a partial video (showing an adult removing a child’s pants) from an IP address later traced to James Riley’s residence.
Subpoena to the ISP tied the IP address to Riley’s home; a search warrant was obtained and executed in January 2010.
When officers first visited, Riley was away; his girlfriend Wenzliek told him they had been there and would return at 6:00 a.m.; Riley then accessed the computer before officers returned.
Forensic exam of items seized (laptop, thumb drives, MP3 player, DVDs) found no images or LimeWire installed; examiner found OS reinstallation at 5:37 a.m., many deleted music files, bad sectors, and multiple matching text-strings (file names) in unallocated space corresponding to files downloaded by the detective on October 20.
Riley admitted using LimeWire, said he had “glanced at” child pornography and that the files were “gone,” but never explicitly admitted downloading or knowingly possessing the full video the detective obtained; a jury convicted him of possession as to the full video (one count) and deadlocked on the other count.
Riley moved for judgment of acquittal; the trial court denied the motion. On appeal the South Dakota Supreme Court reviewed sufficiency of the evidence under the de novo standard and affirmed the conviction.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Riley)	Held
Was there sufficient evidence to prove "possession" of a visual depiction of child pornography beyond a reasonable doubt?	Circumstantial evidence (IP linked to Riley’s house, Riley’s LimeWire use, girlfriend’s testimony that he was the only user, Riley’s statements, OS reinstallation after warning, deletion of files, and matching text-strings in unallocated space) permits a rational jury to infer constructive possession.	No direct files or images were recovered; text-strings and IP link are inconclusive; multiple innocent explanations exist (other devices/users, file-name manipulation, routine OS reinstalls), so proof does not exclude reasonable doubt.	Affirmed: viewed cumulatively, the circumstantial evidence was sufficient for a rational jury to find possession beyond a reasonable doubt.

State v. Danielson, 814 N.W.2d 401 (S.D. 2012) (standard for reviewing denial of judgment of acquittal)
State v. Hauge, 829 N.W.2d 145 (S.D. 2013) (possession may be actual or constructive; appellate review limits)
State v. Mattson, 698 N.W.2d 538 (S.D. 2005) (possession requires awareness of presence and character of contraband)
State v. Barry, 681 N.W.2d 89 (S.D. 2004) (constructive possession defined as dominion or control)
State v. LaPlante, 650 N.W.2d 305 (S.D. 2002) (cumulative review of circumstantial evidence and reasonable doubt)
United States v. Arvizu, 534 U.S. 266 (U.S. 2002) (totality-of-the-circumstances review precludes isolating factors)
United States v. Flyer, 633 F.3d 911 (9th Cir. 2011) (description of LimeWire and shared-folder behavior)
United States v. Budziak, 697 F.3d 1105 (9th Cir. 2012) (default LimeWire storage in shared folder)
United States v. Moreland, 665 F.3d 137 (5th Cir. 2011) (definition and limits of unallocated space and cache evidence)