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State v. Harrington

Supreme Court of Montana

November 7, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
TALAN HARRINGTON, Defendant and Appellant.

          Submitted on Briefs: August 16, 2017

         APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADC-15-095 Honorable Brenda Gilbert, Presiding Judge COUNSEL OF RECORD:

          For Appellant: Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana Joshua Racki, Cascade County Attorney, Great Falls, Montana

          OPINION

          Michael E Wheat, Justice

         ¶1 Talan Harrington (Harrington) appeals from an order of the Eighth Judicial District Court, Cascade County, denying Harrington's pretrial motions to dismiss charges relating to his arrest for sexual abuse of children. We affirm.

         ¶2 We restate the issues on appeal as follows:

         Issue One: Whether there was sufficient evidence to establish that Harrington knowingly possessed child pornography.

         Issue Two: Whether the statutory definition of possession, § 45-2-101(59), MCA, is unconstitutionally vague as applied to Harrington.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 In 2012, Agent Albert Kinsey of the Department of Homeland Security utilized Child Protective System software to identify individuals in Montana engaged in file sharing of child pornography. Based on Agent Kinsey's investigation, four different Internet Protocol (IP) addresses in Montana were identified to be associated with child pornography images. Each IP address had files with descriptions and titles indicative of files containing child pornography. One of the IP addresses showed the use of keyword searches commonly associated with child pornography. All four of the IP addresses were assigned to Erin Nielsen in Great Falls, Montana.

         ¶4 Agent Kinsey contacted Great Falls Police Department Detective Jesse Slaughter and provided him with this information. Detective Slaughter obtained a search warrant for Nielsen's home. When officers executed the warrant, Nielsen denied ever looking at child pornography but told officers she had previously been in a relationship with Harrington. Nielsen disclosed Harrington had lived with her until 2012. Further, Nielsen told Detective Slaughter her Wi-Fi signal is password protected; however, Harrington likely knew the password because he had placed a key logger device on her computer.

         ¶5 Agent Kinsey and Detective Slaughter went to Harrington's home. They informed Harrington that they had just executed a search warrant at Nielsen's home regarding a child pornography investigation. Harrington admitted to using Frostwire[1] to download two child pornography videos containing children aged seven and eight. Based upon Harrington's own admission, law enforcement asked Harrington to come down to the Great Falls Police Department for an interview. Harrington complied. Detective Slaughter seized a Sony laptop that was in plain view.

         ¶6 Harrington consented to search of the Sony laptop, waived his Miranda rights, and agreed to answer questions. Harrington again admitted to downloading the two pornographic files with seven- and eight-year-old children. Harrington said he had recently uninstalled and deleted Frostwire because his computer had been infected with a Trojan horse virus. Harrington told Agent Kinsey that when he used Frostwire he always individually selected his downloads and never did mass downloads. During the interview, Agent Kinsey and Detective Slaughter noted Harrington's aptitude for computers.

         ¶7 Special Agent Brent Johnsrud of the Department of Homeland Security conducted a forensic examination of the laptop. Agent Johnsrud used EnCase, a computer software program, to locate image files in the allocated space on Harrington's laptop and did not locate any suspected child pornography image files. Then Agent Johnsrud used EnCase to locate files in the unallocated space[2] on Harrington's laptop. Agent Johnsrud located twenty-four suspected child pornography image files. ...


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