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State v. Riley

Supreme Court of South Dakota

December 18, 2013

STATE of South Dakota, Plaintiff and Appellee,
James Duane RILEY, Defendant and Appellant.

Argued On March 18, 2013.

Reassigned Aug. 16, 2013.

Page 432

Marty J. Jackley, Attorney General, Timothy J. Barnaud, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Paul R. Winter, Matthew L. Skinner of Skinner & Winter, Prof., LLC, Rapid City, South Dakota, Attorneys for defendant and appellant.

GILBERSTON, Chief Justice (on reassignment).

[¶ 1.] James Riley was convicted by a jury of possessing child pornography in violation of SDCL 22-24A-3(3) and was sentenced to eight years in the penitentiary. Riley now appeals his conviction, arguing the evidence was insufficient to establish he possessed child pornography. We affirm.


[¶ 2.] To combat Internet-based child exploitation and abuse, the South Dakota Internet Crimes Against Children Task Force (Task Force) conducts undercover online investigations to identify individuals distributing or possessing child pornography. Detectives from the Task Force begin their investigation by using software that populates a list of internet protocol (IP) addresses [1] that recently possessed

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visual depictions of child pornography. Detectives then input those IP addresses into an enhanced version of LimeWire [2] developed by the FBI, known as " enhanced peer-to-peer software" (EP2P). EP2P allows detectives to view and download files that a particular IP address has available for download because, unlike LimeWire, which pieces together file fragments from multiple IP addresses that are currently using the file-sharing program, EP2P is a single-source download program that limits downloads to a specific IP address.

[¶ 3.] Using the special software employed by the Task Force, Detective Derek Kuchenreuther conducted an undercover investigation on October 20, 2009, to locate individuals distributing or possessing visual depictions of child pornography. His search revealed that 79 video files with titles suggestive of child pornography were being shared through LimeWire by an IP address in Hermosa, South Dakota. Kuchenreuther downloaded an entire video file (full video) and confirmed that it contained child pornography. He also downloaded a portion of a video file (partial video), which did not contain child pornography, but depicted an adult female removing the pants of a female child. Although the partial video did not portray child pornography, based on prior child pornography investigations, Kuchenreuther recognized the video file as one that contained child pornography.

[¶ 4.] After serving a subpoena on the Internet service provider, Kuchenreuther traced the IP address to James Riley's residence. Based on this information, an agent with the South Dakota Division of Criminal Investigation, Brent Gromer, applied for and obtained a warrant to search Riley's residence.

[¶ 5.] On January 15, 2010, Gromer and several other investigators executed the warrant at Riley's residence. Lori Wenzlick, Riley's girlfriend, was the only person home at that time. Wenzlick informed investigators that Riley was out-of-state, had his computer with him, and would return home around midnight. Gromer advised Wenzlick that they would return the next day at approximately 6:00 a.m. to execute the search warrant and instructed Wenzlick not to tell Riley. Riley returned home at approximately 1:00 a.m. on January 16, 2010. Contrary to Gromer's instructions, Wenzlick informed Riley that investigators had been at the residence and that they would be returning at 6:00 a.m.

[¶ 6.] At approximately 6:30 a.m., investigators executed a second search warrant at Riley's residence. Riley, a former IBM employee of 25 years, was visibly intoxicated when investigators arrived, but

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agreed to speak with Gromer. Riley admitted he used LimeWire to download music, " glanced at" child pornography, and saw the downloaded portion of the partial video. He denied seeing the full video. Further, Riley remarked, " [i]t's gone[,]" when Gromer mentioned that he knew Riley was sharing 79 video files containing child pornography.[3] However, Riley never admitted he downloaded, possessed, or purposefully deleted videos of child pornography. Investigators seized a laptop computer, ...

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