State v. Al-Khayyal
322 Ga. App. 718
| Ga. Ct. App. | 2013Background
- Indictment for 49 counts of OCGA § 16-12-100 (b) (8) based on possession/control of child-pornography files on Al-Khayyal’s laptop.
- Clayton County venue issue: trial court dismissed Counts 30–49 for lack of venue since files were deleted before arrival and inaccessible in Clayton County.
- Laptop seized at Atlanta airport (Clayton County) after Al-Khayyal returned from abroad; forensic analysis recovered double-deleted files from trash.
- Double-deleted files were recovered from trash after being emptied; single-deleted .rar files required unzipping software not always loaded on the computer.
- State appeals as to Counts 30–49 arguing possession/knowledge could be shown in Clayton County; trial court held no evidence of knowing possession in Clayton County.
- Court reverses in part: venue for Counts 30–49 may be established, presenting a jury issue on knowledge and possession.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether venue was proper for Counts 30–49. | State: Al-Khayyal possessed computer in Clayton County when .rar files were present; could access with public software. | Al-Khayyal: before Clayton County, he could not access the files; he discarded them so they were inaccessible. | No improper venue; trial court erred in dismissing Counts 30–49. |
| Whether Al-Khayyal knowingly possessed the contraband in Clayton County. | State: evidence shows knowledge and ability to access files; circumstantial proof acceptable; slight access suffices for jury to decide. | Al-Khayyal: lacked ability to access files in Clayton County; evidence cannot establish knowledge at that time. | Issue of knowledge and possession for Counts 30–49 remains for the jury; not decided as a matter of law. |
| Whether evidence supports constructive possession given modern digital storage. | State: storage on computer constitutes possession regardless of viewing capacity at that moment. | Al-Khayyal: no present ability to view; cannot prove possession. | Sufficient circumstantial evidence of access/intent; jury question remains. |
Key Cases Cited
- Barton v. State, 286 Ga. App. 49 (2007) (constructive possession shown by slight evidence of access and intent)
- Veats v. State, 300 Ga. App. 600 (2009) (possession of contraband can exist without viewing due to available public software)
- Johnson v. State, 269 Ga. 370 (1998) (de novo review of venue decisions; venue in question varies by where acts occurred)
- Scarborough v. State, 317 Ga. App. 523 (2012) (evidence supported conviction when material saved to medium in defendant’s control)
- Hunt v. State, 303 Ga. App. 855 (2010) (venue and possession principles in child-pornography cases with storage media)