Ark. Code Ann. § 5-27-602 (2026)

Case Notes

Construction.

Plain language of this section demonstrates that the General Assembly unambiguously intends that each act of possession is a discrete and independent offense. Consequently, this section authorizes separate convictions for each prohibited photograph and videotape that is possessed. Rea v. State, 2015 Ark. 431, 474 S.W.3d 493 (2015).

Consecutive Sentences.

Trial court did not abuse its discretion by ordering defendant’s sentences for 20 counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child to run consecutively because there was no indication that the trial court failed to consider factors urged by the defense, each sentence was within the statutory range of punishment, and no exception applied. Steele v. State, 2014 Ark. App. 257, 434 S.W.3d 424 (2014).

Double Jeopardy.

This section does not impose multiple prosecutions for the same offense in violation of the double jeopardy clause. Instead, this section permits separate prosecutions for the knowing possession of “any” prohibited photograph or videotape. Rea v. State, 2015 Ark. 431, 474 S.W.3d 493 (2015).

Circuit court properly denied defendant's petition for writ of habeas corpus because a conviction for each photograph sent by defendant did not violate double jeopardy, even though he sent only one email with one attachment. The number of charges brought against defendant was authorized by the legislature, defendant did not dispute that the email he sent contained 30 separate photographs depicting children engaging in sexually explicit conduct, and, although “computer file” is included in the list of media in subdivision (a)(1) of this section, the fact that the 30 photographs were attached to the email in a single file was not relevant where it is the number of photographs distributed, not the manner of distribution, that gives rise to the number of permissible charges. Pelletier v. Kelley, 2018 Ark. 347, 561 S.W.3d 730 (2018).

For double jeopardy purposes, there is no distinction between possession under subdivision (a)(2) of this section and the prohibited activities listed in subdivision (a)(1) of this section. Each photograph that is distributed in violation of subdivision (a)(1) can support a separate charge. Pelletier v. Kelley, 2018 Ark. 347, 561 S.W.3d 730 (2018).

Evidence Sufficient.

Evidence was sufficient to support defendant’s convictions of 20 counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child because it showed that he exercised dominion and control over the computer, as it belonged to him, the IP address was registered to him, it was kept in his bedroom, it held personal pictures and private email accounts, and defendant said that he had recently updated the antivirus software on the computer. Steele v. State, 2014 Ark. App. 257, 434 S.W.3d 424 (2014).

Evidence supported defendant's convictions of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child; there was substantial evidence that defendant exercised dominion and control over the computers that were seized from his residence, and there was no claim that anyone else lived with defendant or had access to the computer, and there was substantial evidence that defendant knowingly possessed the images and videos of child pornography saved on his computer. Bishop v. State, 2015 Ark. App. 436, 467 S.W.3d 763 (2015).

Evidence was sufficient to sustain defendant's convictions for child pornography possession under this section where even assuming joint access to the computers on which the images were found, the evidence showed that defendant exercised dominion and control over the computers and hard drives, and his attempt to prevent officers from finding evidence on one hard drive by unplugging cables from the device, thereby encrypting the information contained on it, was properly regarded as evidence of consciousness of guilt. Allen v. State, 2016 Ark. App. 264, 492 S.W.3d 871 (2016).

There was sufficient evidence to support defendant's convictions for possession of child pornography because the two computers that contained images of child pornography were found in a computer file that contained defendant's name, a detective testified that each picture of the children appeared to depict a prepubescent female, and the jury was provided with the pictures. Whitney v. State, 2017 Ark. App. 341 (2017).

Considering the evidence in the light most favorable to the bench trial verdict, substantial evidence supported defendant's convictions for 10 counts of possessing, viewing, or distributing materials containing sexually explicit conduct involving a minor child; defendant did not object to the authenticity of the screenshots at trial, and no speculation or conjecture was necessary on the record presented. Manek v. State, 2019 Ark. App. 214, 575 S.W.3d 436 (2019).

Sufficient evidence supported defendant's child pornography convictions because substantial evidence supported the finding that defendant possessed prohibited material, as file creations and deletions were associated with defendant's user account, sexually explicit material involving children was found on defendant's computer, and files on defendant's computer were not created in a vacuum but instead were the result of his actions of viewing, playing, downloading, or searching for sexually explicit images involving children. Groomes v. State, 2019 Ark. App. 408, 586 S.W.3d 196 (2019).

Circuit court properly denied defendant's motion for a directed verdict on 104 counts of possession of child pornography, because the State presented sufficient evidence to show that defendant exercised dominion and control over the subject laptop, where his username was used to download the images, and he told a state trooper that he had exclusive access to the computer when the child-pornographic images were uploaded to a chatroom. Taliaferro v. State, 2020 Ark. App. 68 (2020).

Guilty Pleas.

Trial court, upon resentencing, properly ordered defendant to register as a sex offender because, by pleading guilty to distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child, defendant was ineligible for any sentence under the First Offender Act and was required by law to comply with the statutory sex-offender-registration requirements. Wilson v. State, 2019 Ark. App. 116 (2019).

Mutiple Charges.

Neither at trial nor on direct appeal did petitioner challenge his multiple charges under subdivision (a)(2) of this section, and thus his claim that the trial court incorrectly concluded that he could be charged with multiple counts was not cognizable. Bishop v. State, 2017 Ark. App. 435 (2017).

Sexually Explicit Conduct.

Images of nude children were lewd for purposes of § 5-27-601(15)(F) and this section because they were designed to elicit a sexual response in a pedophile viewer; in this case, defendant admitted that he masturbated while looking at the photographs and identified which of them was his favorite for that purpose. Hayes v. State, 2013 Ark. App. 725 (2013).

In a child pornography case, sufficient evidence supported the jury's verdict that five images that defendant possessed of nude children depicted sexually explicit conduct. Groomes v. State, 2019 Ark. App. 408, 586 S.W.3d 196 (2019).

Writ of Error Coram Nobis.

Where petitioner contended in his request for a writ of error coram nobis that his guilty plea to thirty crimes under this section was illegal because he had sent only one computer file, the circuit court properly denied the petition. The acts described by petitioner as “misconception” on the part of his counsel, the prosecutor, and the trial judge did not constitute the type of coercion required for coram nobis relief; coram nobis proceedings are not a substitute for proceeding under Ark. R. Crim. P. 37.1; and double jeopardy claims do not fall within any of the four categories of recognized claims for a writ of error coram nobis. Pelletier v. State, 2015 Ark. 432, 474 S.W.3d 500 (2015).

Cited: Ross v. State, 2017 Ark. App. 234, 518 S.W.3d 758 (2017).