## Facts

- Benjamin W. Mercer was the human resources director for the City of Fond du Lac.
- The City installed employee-computer monitoring software that recorded user activity; Mercer did not know it had been installed.
- The software was configured to send alerts when users entered specified sexual terms, including terms associated with child pornography.
- Alerts and logs tied to Mercer’s user account recorded repeated searches and website navigation using terms such as “preteen,” “preteen hardcore,” and “Lolita.”
- City officials and police reviewed the monitoring logs and concluded Mercer accessed websites containing images and stories depicting children engaged in sexual activity.
- At trial, the State relied on the monitoring logs, testimony from the monitoring software’s cofounder about how the logs reflected browsing activity, and testimony from a computer forensics expert.
- The forensics evidence indicated Mercer took steps to delete Internet history and empty the browser cache.
- No child-pornography image files were recovered from Mercer’s hard drive.
- Mercer was charged with fourteen counts of possession of child pornography under Wis. Stat. § 948.12(1m) (2007–08) and was convicted by a jury on all counts.
- Mercer appealed, arguing the evidence was insufficient to prove knowing “possession” because the case involved only online viewing and no contraband files were found on his computer.

## Issues

1. Whether intentionally seeking out and viewing child-pornography images on the Internet can constitute “knowing possession” under Wis. Stat. § 948.12(1m) when no image files are recovered from the defendant’s hard drive.
2. Whether monitoring-software logs and related testimony can provide sufficient evidence for a rational jury to find knowing possession beyond a reasonable doubt.

## Decision

- The Wisconsin Court of Appeals affirmed Mercer’s convictions.
- The court held the evidence was sufficient for a jury to find Mercer knowingly possessed child pornography even though no contraband images were recovered from his hard drive.
- The court rejected the claim that proof of possession requires hard-drive recovery of image files in a location the defendant knew could be accessed later.
- The court concluded the monitoring logs supported findings that Mercer affirmatively sought out and viewed child pornography and had the ability to control the images while they were displayed.

## Legal Principles

- Under Wis. Stat. § 948.12(1m), “possession” focuses on intentional acquisition/viewing and the defendant’s ability to exercise control over the images, not on the technical location of stored files.
- Prior cases involving hard-drive artifacts do not create a minimum evidentiary requirement that images be recovered as files from a defendant’s computer.
- A person may “knowingly possess” child pornography by intentionally pulling up and viewing the images online with knowledge of their character, where the circumstances show the user had control over the images while displayed (including the capacity to copy, print, or capture them).
- In reviewing sufficiency of the evidence, the court views the evidence in the light most favorable to the verdict; repeated targeted searches, deliberate navigation to image collections, and efforts to erase browsing traces can support an inference of knowing possession.

## Conclusion

The court affirmed Mercer’s fourteen convictions, holding that intentional online viewing shown through monitoring logs and corroborated by evidence of attempted deletion could prove knowing possession of child pornography under Wis. Stat. § 948.12(1m) even without recovery of image files from the defendant’s hard drive.


State v. Mercer, 782 N.W.2d 125 (Wis. Ct. App. 2010)