UNITED STATES of America, Plaintiff-Appellee, v. Dennis Lane GOFF, Defendant-Appellant.
No. 05-50230.
United States Court of Appeals, Fifth Circuit.
Decided Nov. 23, 2005.
773
Summary Calendar.
Thomas S. Morgan, Law Office of Thomas S. Morgan, Midland, TX, for Defendant-Appellant.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney‘s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Before REAVLEY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Dennis Lane Goff appeals his convictions, following a jury trial, of five counts of shipping or transporting visual depictions of minors engaging in sexually explicit conduct, nine counts of receiving such depictions, and one count of possession of such depictions, in violation of
Goff contends that the trial evidence was insufficient to support any of his convictions. The standard for reviewing a claim of insufficient evidence is whether, “after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the evidence establishes the essential elements of the offense beyond a reasonable doubt.” United States v. Bellew, 369 F.3d 450, 452 (5th Cir.2004) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Review of the sufficiency of the evidence does not include review of the weight of the evidence or of the credibility of the witnesses. United States v. Garcia, 995 F.2d 556, 561 (5th Cir.1993).
In a similar contention, Goff argues that the evidence was insufficient to prove that he had received depictions of minors engaging in sexually explicit conduct. He maintains that the evidence did not show that he “downloaded” any depictions he might have received via e-mail onto his hard drive or onto computer disks. The evidence did show, however, that screen names registered by Goff received e-mail attachments with such visual depictions and that such e-mails bore titles and text like “yngorgy,” “I like young teen fems,” “have plenty keep replying,” “veryverybarelylegal,” “traders for young,” “young,” and “young girls only.” We have held that similar evidence, irrespective of direct evidence that the defendant had actually looked at the depictions, supported an inference that a defendant knew he was receiving child pornography. See United States v. Payne, 341 F.3d 393, 403-04 (5th Cir.2003).
Goff maintains that the evidence was insufficient to support his conviction of possession of visual depictions of minors engaging in sexually explicit conduct. Although he acknowledges that more than 1,000 such depictions were stored on the hard drive of his computer, he maintains that evidence of the placement, in May 2003, of a “Sub 7 Trojan” program on his hard drive meant that anybody could have been using his computer to store and view such depictions without his knowledge. Goff also asserts that the stepson and brother of Sherry Hobbs, with whom Goff lived during 2001 and 2002, had access to his computer. Although Government witnesses agreed that a computer hacker could theoretically use the Sub 7 Trojan to control almost all of Goff‘s computer functions, there was no evidence to show that the Sub 7 Trojan had actually been used. Moreover, it was not disputed that it was very unlikely that a hacker would choose Goff‘s computer, which had only dial-up Internet access, to exploit a Sub 7 Trojan, because, in comparison to a computer with broadband or high-speed access, a dial-up connection was extremely slow and was available only when the victim logged onto the Internet. There was no evidence that Sherry Hobbs‘s stepson had access to Goff‘s computer, and Hobbs testified that her brother used the computer only to play Fantasy Football and that he knew very little about computers. Finally, Goff‘s ex-wife, Patricia Vanderburgh, testified that, shortly after Goff had visited her home and used her computer on an occasion in early 2004, she discovered that he had forgotten to close his e-mail account and that the account‘s in-box contained e-mails with child pornography. The evidence was sufficient to support Goff‘s conviction of possession of visual depictions of minors engaging in sexually explicit conduct. See United States v. Runyan, 290 F.3d 223, 242-43 (5th Cir.2002).
The admission of testimony that Goff possessed a magazine called “Barely Legal” was not an abuse of discretion. Bentley-Smith, 2 F.3d at 1377. Even if such magazine was adult, legal pornography, it is implicit in the magazine‘s title that its photographic subjects will be as close in age to being “illegal” as the First Amendment permits, and the magazine was relevant to showing that Goff had a “knowing interest in child pornography.” See United States v. Layne, 43 F.3d 127, 134 (5th Cir.1995) (upholding admission of “exhibit featur[ing] a woman dressed up as a child wearing pigtails and roller skates, which was referred to by the district court as ‘simulated child pornography‘“). The district court did not abuse its discretion in admitting Hobbs‘s testimony that Goff had once told her that he was “turned ... on” by a sleeping 12-year-old girl in his home. The court properly contrasted this evidence to the admission of violent and disturbing “narratives” involving the sexual abuse of children, which was held to be reversible error in United States v. Grimes, 244 F.3d 375, 383-85 (6th Cir.2001). In the cases of both the magazine and story about the sleeping girl, the court issued careful limiting instructions that minimized the possibility of prejudice to Goff. See United States v. Willis, 6 F.3d 257, 262-63 (5th Cir.1993).
Goff‘s convictions are AFFIRMED.