New v. State
327 Ga. App. 87
Ga. Ct. App.2014Background
- Defendant Matthew New, a former police officer, was convicted by a jury of 35 counts of sexual exploitation of children, 2 counts of child molestation, and 1 count of enticing a child for indecent purposes after images of a teenage "strip wrestling" incident and other child pornography were found on his home computer.
- The alleged victims were New’s then-teenage son (B.N.) and the son’s 13-year-old girlfriend (T.P.); New photographed the minors and set up a hidden camera in the son’s bedroom.
- Law enforcement obtained oral and written consent from New to search his residence and seized his computer; GBI forensic analysis located the strip-wrestling photos and numerous child-pornography images as shadow copies on the system volume, LimeWire logs, and evidence of data-wiping software.
- Defense theory emphasized others’ access to the computer (including the son) and challenged whether the shadow-copy images established knowing possession of child pornography.
- The trial court denied New’s motion to suppress (finding valid consent), admitted limited rebuttal testimony from New’s ex-wife, and the jury convicted; on appeal New raised sufficiency, evidentiary, ineffective-assistance, suppression, and sentencing claims.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (New) | Held |
|---|---|---|---|
| Sufficiency of evidence for sexual-exploitation convictions | Shadow-copy images plus circumstantial evidence (LimeWire logs, deletion software, number of images, strip-wrestling photos) support knowing prior possession | Shadow-copy location and missing metadata show only incidental/automated caching; insufficient proof of knowing possession | Affirmed: shadow copies plus circumstantial evidence supported an inference of prior knowing possession (distinguishing Barton) |
| Admission of ex-wife testimony about finding pornography | Testimony was proper rebuttal to defense questioning about others’ access and not admission of unrelated similar-transaction evidence | Testimony improperly introduced irrelevant/prejudicial pornographic-material evidence without notice | Affirmed: trial court permitted limited rebuttal testimony and excluded direct similar-transaction exhibits; no abuse of discretion |
| Ineffective assistance of counsel | N/A (State defends adequacy) | Multiple alleged failings (sequestration objection, Barton-based motions, presenting access/scar evidence, jury charges) | Affirmed: counsel’s choices were reasonable trial strategy or produced no prejudice; convictions stand |
| Motion to suppress / scope of consent search | Consent (oral and written) covered seizure and later forensic exam of computer and files sought for investigation | Consent did not authorize forensic examination or seizure beyond scope; search thus unlawful | Affirmed: New knowingly and voluntarily consented to search and removal; scope reasonably included forensic exam of seized computer |
| Sentencing under OCGA § 17-10-6.2(b) | Sentencing must include split sentence (mandatory prison minimum + at least one year probated) for each sexual-offense conviction | Trial court failed to impose required split sentence on each count; overall sentence thus void | Reversed as to sentence: sentencing vacated and remanded for resentencing consistent with § 17-10-6.2(b) |
Key Cases Cited
- Barton v. State, 286 Ga. App. 49 (holding temporary Internet cache alone may be insufficient to prove knowing possession) (distinguished)
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
- Simpson v. State, 271 Ga. 772 (limitations on admitting sexually explicit material unrelated to charged crime)
- United States v. Kain, 589 F.3d 945 (presence of child pornography in cache/orphan files can be evidence of prior possession)
- Hedden v. State, 288 Ga. 871 (interpretation of OCGA § 17-10-6.2 regarding mandatory minimum prison terms for sexual offenses)