State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0930

State of Minnesota,
Respondent,

vs.

Alex Gordon Sillerud,
Appellant.

Filed April 16, 2018
Affirmed
Hooten, Judge

Ramsey County District Court
File No. 62-CR-16-1107

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Anaissa S. Kimelman, Certified Student Attorney,
Peter R. Marker, Assistant County Attorney, St. Paul, Minnesota (for respondent)

Joseph P. Tamburino, Hillary B. Parsons, Caplan & Tamburino Law Firm, P.A.,
Minneapolis, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Kirk,
Judge.

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U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant contends that the state’s evidence was legally insufficient to prove beyond
a reasonable doubt that he knowingly possessed child pornography. He also argues that
the district court erred in denying his motion for a downward departure. We affirm.
FACTS
Saint Paul police officers executed a search warrant at the home of appellant Alex
Sillerud on July 10, 2015, to search for child pornography. An officer interviewed Sillerud
while other officers conducted the search. The officer informed Sillerud that he was not
under arrest, that he did not have to talk with the officer , and that he was free to leave.
Sillerud admitted that he had searched for child pornography on his computer and that child
pornography would be found.
Police seized Sillerud’s computer, and a forensic examination identified 195 images
suspected of being child pornography. Those images were sent to the National Center for
Missing and Exploited Children and compared against its database of previously identified
minors. At least 11 images were identified as pornography containing previously identified
minors.
The state charged Sillerud with one count for each image, for a total of 11 counts of
possession of child pornography, in violation of Minn. Stat. § 617.247, subd. 4(a) (2014).
Ten of the charged images were found on the computer’s “thumb cache.” A thumb cache
is a hidden collection of images automatically created by the operating system to display
previews of images or allow faster recall of an image when it is accessed later, and it cannot
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be accessed by the computer user without special software. The remaining charged image,
the Bianca image, was found in the computer’s recycle bin. A recycle bin is a folder in
which the computer user can place files to mark them for deletion. It is common knowledge
among most computer users that files placed in the recycle bin are not deleted from the
computer until the recycle bin is emptied.
The Bianca image had “modified” and “created” dates associated with the file. The
state’s expert testified that the created date, June 28, 2015, indicated that the file was placed
inside the recycle bin at that time, and that the modified date of July 4, 2015, indicated that
the file was either opened and saved on that da te, or was taken out of the recycle bin and
returned on that date. Sillerud’s expert testified that the created date was when the file was
first downloaded and created on that computer, and that the modified date is when the file
was placed in the recycle bin. The district court found that both interpretations showed
that Sillerud actively moved the Bianca image into the recycle bin shortly before the search
warrant was executed, and showed that he was aware of the existence of the image.
Sillerud’s computer also cont ained the file -sharing software eMule, which allows
users to setup their computers to share files with other file-sharing software users without
a central server. While file-sharing software is legal, the state’s expert testified that people
who possess and trade child pornography commonly have file -sharing software on their
computers. Ninety percent of the file names that Sillerud downloaded through eMule
contained acronyms and words synonymous with child pornography, including: “L olita;”
“PTHC,” which stands for pre -teen hard core; “kid cam;” “hussy fan;” and “Ray Gold.”
The file in the recycle bin was named “$RZ512JY.jpg.”
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After a bench trial, the district court found Sillerud not guilty of the ten counts
relating to images found on the computer’s thumb cache because he did not knowingly
possess those images. However, the dist rict court found Sillerud guilty of the one
remaining count of child pornography, finding that he knowingly possessed the Bian ca
image. At his sentencing heari ng, Sillerud moved the district court for a downwar d
departure, asking for a gross-misdemeanor disposition. The district court imposed a stayed
presumptive sentence of 15 months, placing Sillerud on probation for five years. See Minn.
Sent. Guidelines 4.B (2016).
D E C I S I O N
I. Sufficiency of the Evidence

When reviewing whether the state presented sufficient evidence to support a verdict,
Minnesota appellate courts “conduct a painstaking review of the record to determine
whether the evidence and rea sonable inferences drawn therefrom, viewed in a light most
favorable to the verdict, were sufficient to allow the [fact-finder] to reach its verdict.” State
v. Hayes, 826 N.W.2d 799, 805 (Minn. 2013) (quotation omitted); see also State v. Palmer,
803 N.W.2d 727, 733 (Minn. 2011) (“[Appellate courts] use the same standard of review
in bench trials and in jury trials in evaluating th e sufficiency of the evidence.”).
Possession of child pornography requires proof that the individual in possession of
the child pornography does so “knowing or with reason to know its content and character,”
Minn. Stat. § 617.247, subd. 4(a), which means that the individual “is subjectively aware
of a ‘substantial and unjustifiable risk’ that the work involves a minor, ” State v. Mauer,
741 N.W.2d 107, 115 (Minn. 2007). “Proof of either actual knowledge or reason to know
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that a pornographic work involves a minor may . . . be made by circumstantial evidence.”
Mauer, 741 N.W.2d at 115.
When reviewing a c onviction based on ci rcumstantial evidence, appellate courts
employ a two-step analysis. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). The
first step is to “identify the circumstances proved .” Id. “[W]e defer to the [fact -finder’s]
acceptance of the proof of th[o] se circumstances and rejection of evidence in the record
that conflicted with the circumstances proved by the State.” Id. at 598 –99 (quotation
omitted). Step two involves evaluating “whether the circumstances proved are consistent
with guilt and inconsis tent with any rational hypothesis except that of guilt.” Id. at 599
(quotation omitted). To do so, we review the evidence as a whole, and “must determine
whether the circumstances proved are consistent with guilt and inconsistent with any
rational hypothesis except that of guilt, not simply whether the inferences that point to guilt
are reasonable.” Id.; see also State v. Taylor , 650 N.W.2d 190, 206 (Minn. 2002)
(“Circumstantial evidence must form a complete chain that, in view of the evidence as a
whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable
doubt any reasonable inference other than guilt.”).
The circumstances found by the district court are consistent with Sillerud knowingly
possessing the Bianca image, and i nconsistent with any rational hypothesis except that
Sillerud was aware of a substantial and unjustifiable risk that the Bianca image involved a
minor. Sillerud admitted that he had searched for child pornography, and that child
pornography would be found on his computer. The download l ogs from eMule showed
that 90% of the files he downloaded contained names synonymous with child pornography,
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which is compelling evidence that Sillerud was taking a substantial and unjustified risk that
he was downloading pornography involving minors. Additionally, the Bianca image’s
location in the recycle bin —where it was still easily accessible to Sillerud —and the
difference between the modified and created dates on the image file, show that Sillerud
actively moved the image into the recycle bin and was therefore aware of its existence. See
United States v. Breton, 740 F.3d 1, 17 (1st Cir. 2014) (“[A] defendant’s intentional attempt
to delete child pornography files, such as by placing them in a computer’s recycle bin, can
suggest he was aware of the files and their contents.”).
Sillerud argues that the evidence supports a reasonable inference of inadverten t
possession. He alleges that file-sharing software has legitimate purposes, that his expert
disagreed that 90 % of the files he downloaded contained terms synonymous with child
porn, and that the file name of the charged image, “$RZ512JY.jpg, ” was not synonymous
with child pornography. But the fact -finder believed the testimony of the state’s expert
that 90 % of the files Sillerud downloaded contained terms synonymous with child
pornography, and it is the prerogative of the fact -finder to determine the cre dibility of
witnesses. See State v. Moore , 438 N.W.2d 101, 108 (Minn. 1989) (“ The weight and
credibility of the testimony of individual witnesses is for the [fact-finder] to determine.”).
Moreover, Sillerud’s own expert agreed that the terms “L olita,” “kid cam,” and
“PTHC,” three of the terms present in file names on Sillerud’s download log, are all
strongly suggestive that the file contains child pornography. The combination of Sillerud’s
confession that child pornography would be found on his compute r, his admission that he
had searched for child pornography, and the fact that a vast majority of the names of his
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downloaded files contained terms synonymous with child pornography, do not support a
reasonable inference of inadvertent possession. While it might be reasonable to infer, as
Sillerud claims, that files containing these search terms could also have come up when
searching for adult pornography, Sillerud’s decision to download files containing terms
synonymous with child pornography does not support such an inference.
Next, Sillerud argues that his confession does not show that he was aware that the
specific file in the recycle bin, the Bianca image, was child pornography. But Sillerud
admitted to searching for child pornography, and admitted that there would be child
pornography found on his computer. While Sillerud’s confession may not explicitly state
his knowledge that the specific Bianca image was child pornography, it adds to the
circumstances proved by the state and strongly supports t he inference that he knew the
image was child pornography. Sillerud claims that his admission was only that there might
be child pornography on his computer, and therefore his admission is equally supportive
of accidental download. But combined with his admission that he searched for child
pornography, the fact that his computer log showed he downloaded a very high percentage
of files with names containing terms synonymous with child pornography, and his
interaction with the file by moving it to the recycle bin, the only reasonable inference drawn
from the evidence as a whole is that Sillerud was subjectively aware of a substantial and
unjustifiable risk that the Bianca image involved a minor.1

1 Sillerud also points to circumstantial evidence that was found in other cases, but was not
present in his case. But those comparisons are irrelevant because the evidence presented
is sufficient to sustain his conviction. Cf. State v. Landin , 472 N.W.2d 854, 858 (Minn.
1991) (discussing appellant’s argument about “the lack of evidence identifying him as the
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Sillerud also relies on Mauer to support how strong the evidence must be to prove
knowing possession. In Mauer, the appellant ordered videos “describ[ing] sexual acts
depicted in the videos and the ages of individuals involved in them, including references
to a ‘12 year old,’ ‘pretee ns,’ ‘young girls 11 –13 years old,’ and ‘[performers] from 9 to
14 years old.’” See 741 N.W.2d at 109. While Sillerud is correct that the supreme court
reversed and remanded appellant’s conviction in Mauer, it did so because the court
clarified the scienter requirement in child pornography cases. Id. at 115–16. The supreme
court then determined that the district court’s findings of fact were unclear if it had found
that the appellant was “subjectively aware of a substantial and unjustifiable risk that t he
videos would involve children,” the standard adopted by the court. Id. at 116. The reversal
in Mauer was not about the sufficiency of the evidence , and therefore the case does not
help Sillerud’s argument.
Finally, Sillerud relies on State v. Myrland for the proposition that a computer user
does not always have control over images that are accessible by a computer. See 681
N.W.2d 415 (Minn. App. 2004), review denied (Minn. Aug. 25, 2004). However, Myrland
involved images and text found in unalloca ted space on the hard drive, and the state’s
expert testified that “there was no way to tell who had viewed [the images] or if they had
been viewed at all. ” Id. at 418–19; see also United States v. Hill , 750 F.3d 982, 987 –88
n.6 (8th Cir. 2014) (“Unallocated space is space on a hard drive that contains deleted data,

perpetrator, i.e., no eyewitnesses, fingerprints, footprints, fiber samples or shell casings ,”
the supreme court noted that “[a] lack of incriminating physical evidence does not,
however, necessarily undermine a guilty verdict”).
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usually emptied from the operating system’s trash or recycle bin folder, that cannot be seen
or accessed by the user without the use of forensic software. Such space is available to be
written over to store new information.” (emphasis omitted) (quotations omitted)) . The
appellant in Myrland also “admitted on cross -examination that some of the websites
referenced could have been accessed inadvertently or could have appeared on the scree n
when a computer user accessed another site.” 681 N.W.2d at 419. Here, however, there
was no testimony by either expert that the Bianca image was found in unallocated space or
that it may have inadvertently appeared on Sillerud’s computer as a result of visiting
websites containing adult pornography. And the act of deleting a file without a descriptive
file name suggests that the user actually opened the file to see what it contained before
deleting it. Because the Bianca imag e was found in the recycle bin, Myrland does not
support Sillerud’s argument that he did not have control over the image. See United States
v. Hill, 750 F.3d 982, 987 (“ Unlike ‘unallocated space,’ the recycle bin is an ac cessible
folder on the computer’s hard drive in which a user places files to be deleted.” (quotations
omitted)).
II. Downward Departure Motion

We review the denial of a motion for a downward departure for an abuse of
discretion. State v. Pegel, 795 N.W.2d 251, 253 (Minn. App. 2011). “A district court must
impose th e presumptive guidelines sentence absent identifiable, substantial, and
compelling circumstances justifying departure. Substantial and compelling circumstances
are those which make the facts of a particular case different from a typical case.” State v.
Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013) (quotations and citation omitted) ,
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review denied (Minn. Sept. 17, 2013) . “[I]t would be a rare case which would warrant
reversal of the refusal to depart.” State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Sillerud argues that because his conviction was based on pos sessing only a single
image, this fact alone is sufficient to reverse the district court. But the supreme court has
upheld charging an individual for each pornographic work possessed, holding that the
statute unambiguously criminalizes possession of each pornographic work. State v.
Bakken, 883 N.W.2d 264, 268 –70 (Minn. 2016). This is contrary to Sillerud’s assertion
that his is a rare case because he was only convicted for one image. And, Sillerud does not
cite any cases which support his assertion that many child pornography cases involve
thousands of images. Cf. id. at 268 (seven images, seven counts); State v. McNitt, No. A17-
0092, 2017 WL 3379191, at *1, 7 (Minn. App. Aug. 7, 2017), review denied (Minn. Oct.
17, 2017) (three files, three counts) ;2 State v. Mauer , 726 N.W.2d 810, 81 2 (Minn. App.
2007) (four discs, three counts), aff’d in part, rev’d in part, 741 N.W.2d 107 (Minn. 2007).
Finally, Sillerud argues that the fact that he made efforts to delete almost every file
containing child pornography from his computer supports a downward departure. But even
if the district court had found that Sillerud, as he claims, had “made efforts[] whenever
such an image was downloaded into his computer[] to delete every single file from his
computer,” that fact would support his intent to avo id prosecution as much as it woul d
establish a mitigating factor. Because Sillerud has failed to present any substantial and

2 McNitt is unpublished and is cited only for factual comparison. See Minn. Stat.
§ 480A.08, subd. 3 (2016).
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compelling circumstance justifying a downward departure, we conclude that the district
court did not abuse its discretion in denying his motion for a downward departure.
Affirmed.