Digital Forensic Examination Brings on Additional Child Pornography Charges

November 11, 2022 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

A Central Florida man who has already been arrested for child pornography has just received an additional 40 charges after further investigation.

This article will provide details from the case, along with information on transmitting child pornography and using digital forensic experts as a defense in a criminal case.

What was the Case?

On October 12, 2022, a woman called the Columbia County Sheriff’s Office (CCSO) to file a report against a man she had been messaging. According to the report, the woman had been engaging in text messages with Nicolas Bernard Wallace, 29, over Tinder, a social media platform for dating, when Wallace admitted to sexually battering juvenile girls on multiple occasions.

After reporting the conversation to the police, the woman gave the authorities permission to use her social media to message Wallace in an undercover capacity. Wallace proceeded to send four images of children being sexually abused to who he thought was the woman. The suspect then tried to arrange a meet-up for him, the woman, and a young child he offered to bring with him to engage in sexual activities.

During the undercover conversation, Wallace admitted to having sexually abused the specific child in the past. He also claimed to have unrestricted access to the child and was able to take her even that same afternoon. He then described the process of grooming young children for sexual activity. Based on the potential threat Wallace posed to the child he claimed to have access to, the authorities took immediate action to find the suspect.

CCSO contacted Marion County Sheriff’s Office (MCSO), who was able to locate Wallace at his home in Ocala. According to MCSO’s Facebook page, Wallace had already been involved in an active investigation for previously uploading Child Sexual Abuse Material (CSAM) to a social media website.

MCSO Major Crimes Detective Chase King was already in charge of investigating Wallace for the previous investigation—and managed to obtain a search warrant for the suspect’s house. Wallace’s cell phone and tablet were both seized by police, where they would be investigated further using a forensic examination. Wallace refused to speak to detectives regarding the undercover conversation with CCSO detectives.

Wallace was arrested and taken into custody at Marion County Jail. Wallace is currently being held on a $95,000 bond. Wallace was initially charged with four counts of Transmission of Child Pornography, two counts of Possession of Child Pornography, and one count each of Solicitation to Commit Sexual Battery on a victim younger than 12, Promoting the Sexual Performance of a Minor, and Unlawful Use of a Two-Way Communication Device to Facilitate a Felony.

Additional Charges

On October 22^nd, 2022, MCSO Detective King charged Wallace with an additional 40 counts of Possession of Child Pornography, and one count each of Transmission of Child Pornography and Unlawful Use of a Two-Way Communication Device to Facilitate a Felony.

After obtaining the defendant’s cell phone and tablet, MCSO conducted an investigation into the data located in the devices. Senior Digital Forensic Technician Jesse Newbanks analyzed Wallace’s devices. From the total extracted data Newbanks uncovered a total of 378 files that contained child sexual abuse material (CSAM). Wallace had been transmitted CSAM images by the way of live video on his cell phone.

Wallace was hit with the additional charges while in custody in Marion County Jail. His bond has now been changed to $299,000.

Transmission of Child Pornography

Child pornography is considered “transmitted” when an illicit video or image is sent electronically to one device from another. The following is a list of ways child pornography could be transmitted:

• Email
• Text message
• Messaging apps
• Chat rooms
• Social media
• Direct messages (DMs)
• File-sharing applications
• Bulletin boards

Florida Statute section 847.0137 states that it is unlawful for any person to possess, transmit, or distribute child pornography. The basic charge of “transmitting child pornography” is considered a third-degree felony in Florida. A third-degree felony has a penalty of up to a $5,000 fine and up to five years in prison.

In order to convict a defendant of transmitting or distributing child pornography, the prosecution must prove the following beyond a reasonable doubt:

• The defendant produced, directed, advertised, or disbursed any visual depiction of the sexual conduct or sexual activities of a minor under the age of 18;
• The defendant understood what the visual representation was and continued to transmit or distribute it.

IMPORTANT: It is extremely important to understand that in a child pornography possession case, each image that is transmitted is considered a separate criminal charge. Florida prison sentences involving child pornography can run consecutively, meaning that they could run one after the other. For example, if a defendant has two illegal images of CSAM on their device, they could be sentenced to ten years in prison instead of the five stated under the statute.

In addition, there are enhanced charges that can be placed on your case by the prosecution. That means there may be specific facts and circumstances in the case in which fines and prison sentences for the same crime are now increased. For example, if the accused person is an authority member—such as a police officer—the criminal charges are enhanced to a second-degree felony.

Promoting the Sexual Performance of a Child

Under Florida Statute section 827.071, it is unlawful for any person to promote the sexual performance of a child, when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes the sexual conduct by a child.

It is also unlawful for any person to possess any photograph, motion picture, exhibition, show, representation, or other presentation of any form of child pornography with the intent to promote it.

A person who violates either section of this law can be charged with a second-degree felony in Florida. A second-degree felony has a penalty of up to a $10,000 fine and up to 15 years in prison.

To convict a defendant of Promoting a Sexual Performance by a Child, the prosecution must prove the following beyond a reasonable doubt:

1. The Defendant produced, directed, or promoted a performance.
2. The performance included sexual conduct by a child less than 18 years of age.
3. The Defendant knew the character and content of the performance.

Digital Forensic for Defense

In a modern-day child pornography case, the use of digital evidence is imperative to the prosecution to try and convict the defendant. No longer do police go searching through someone’s home, looking for magazines or recorded videotapes. The internet and digital devices have changed the way police officers search a suspect.

For example, if the authorities believe a person has CSAM in their possession, they may try and obtain a warrant to search through the accused person’s cell phone, laptop, memory card, thumb drive, storage devices, or any other device that may store illicit images, files, or videos. 

In the recent case mentioned above, MCSO was able to work with a digital forensic technician to do a more in-depth search of the defendant’s belongings. However, the defense team can use the same method to cross-check the data found by the authorities.

Child pornography cases result in some of the harshest penalties in the state. Considering that each image or video of CSAM can result in additional charges, a person convicted of child pornography could be looking at an extensive amount of time behind bars. Your best shot at fighting child pornography charges is by working with an experienced criminal defense attorney in your area.

To find out more about digital evidence and how a forensic expert witness can help your case, read our blog here.

Finding a Defense Attorney in Tallahassee, Florida

If you or a loved one have been accused of a sex crime in Florida, reach out to a sex crime defense attorney near you. The state takes sex crimes extremely seriously—especially if there are minors involved. A defendant convicted of sex crimes will have to face hefty fines, possible imprisonment, and the possibility of registering as a sex offender.

Pumphrey Law Firm is here to help fight for your freedom. Don Pumphrey and his team have represented clients of all ages across Florida, and vow to stand in your corner. Contact us today for a free consultation at (850) 681-7777 or leave an online message on our website.

Written by Karissa Key

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