Lead Opinion
Following a jury trial, Alexander Sean Gerbert was convicted of aggravated sodomy and five counts of sexual exploitation of children based on his possession of child pornography Gerbert appeals from the denial of his motion for new trial and argues that (1) the trial court erred in denying his motion to suppress evidence found on computers and a phone that were seized from his residence, (2) the evidence was insufficient to support his convictions, (3) the trial court erred in admitting evidence of other acts, and (4) he received ineffective assistance of trial counsel in several respects.
One of Gerbert’s sufficiency challenges calls us to decide whether OCGA § 16-12- 100(b)(8), which criminalizes the knowing possession of child pornography, requires the State to prove that Gerbert knew the images he possessed depicted minors. We conclude that it does. Because the State failed to present sufficient evidence to prove that Gerbert knew that one of the images of child pornography depicted a minor, we reverse one count of sexual exploitation of children (Count 11). We reject Gerbert’s other arguments and affirm his remaining convictions.
On appeal from a criminal conviction, we view the evidence in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence. Heatherly v. State,
Almost immediately after B. T.’s outcry, Maureen took B. T. to her sister’s house, where Maureen and her sister both questioned B. T. B. T. nodded yes when asked if Gerbert put his face “down there,”
Apolice investigator interviewed A. W., who alleged that Gerbert had also sexually abused her and had taken sexually explicit images of her. In addition to alleging that Gerbert had touched her private parts when she was 12 or 13 years old, A. W. alleged that Gerbert became aware that she was addicted to methamphetamine when she was 15 years old. She alleged that Gerbert exploited her addiction by offering her money in exchange for sexual favors, including taking nude pictures of her with a digital camera. A. W. later found these photographs on Gerbert’s blue Toshiba laptop and confronted Gerbert about them. Gerbert told A. W. that he would never delete the images.
After his interview of A. W., the investigator sought and obtained a warrant to search Gerbert’s residence. During a search of his residence, police officers recovered two blue Toshiba laptops and an iPhone belonging to Gerbert. A forensic examination of the seized laptops recovered no data because they had been corrupted. Sexually explicit photographs matching the descriptions that A. W. had given to the investigator were found on Gerbert’s iPhone in a software application called “Ractor,” which creates hidden locations for storing files. Gerbert was subsequently arrested.
Upon learning of Gerbert’s arrest, a former co-worker of Ger-bert’s contacted the Coweta County Sheriff’s Office. The former co-worker reported that he had a computer that Gerbert had asked him to store after Gerbert left their former workplace. The former co-worker gave the computer to the investigator in June 2012, and testified that no one accessed or used the computer at any time while it was in his possession.
The investigator had that computer forensically examined. More sexually explicit images, including those of an unrelated young woman, S. P, were found on the computer. Sexually explicit images of S. P were also found on Gerbert’s iPhone. S. P testified that when she was 17 years old, she took the photographs and sent them to her boyfriend. She testified that she did not know Gerbert.
Gerbert was charged with various child sexual abuse offenses. He was convicted of aggravated sodomy for performing a sexual act on B. T. when she was less than 10 years old (Count 3) and five counts of sexual exploitation of children for possessing four different sexually explicit images of A. W. (Counts 6-9) and one image of S. P (Count 11). The jury could not reach a verdict on the remaining two counts of child molestation, one count of aggravated sexual battery, one count of incest, and one other count of sexual exploitation of children, and the State nolle prossed those charges. Gerbert now appeals.
A magistrate may issue a search warrant only when the circumstances set forth in the affidavit establish probable cause that contraband or evidence of a crime will be found in a particular place. State v. Palmer,
(a) Staleness
The information on which the warrant issued was not stale. In the 2011 warrant affidavit, the investigator stated that A. W. reported that Gerbert had taken nude photographs of her when she was 15, in approximately 2006 or 2007. Gerbert argues that the passage of time between Gerbert’s alleged creation of illegal images in 2006 or 2007 and the 2011 warrant affidavit rendered the information contained in the affidavit stale. But although a magistrate “must consider time as an element of probable cause when issuing a warrant, the mere passage of time does not equate with staleness.” Copeland v. State,
Here, the investigator stated in his warrant affidavit that he would search a blue Toshiba laptop and all other media storage devices located at Gerbert’s residence because A. W. reported that Gerbert had taken nude pictures of her and had said he would never delete them. The investigator also stated that images and digital information placed on a computer could be retrieved even if attempts had been made to delete or erase such data.
We have held that media capable of storing sexually explicit material, such as computers or hard drives, are unlikely to be affected by the passage of time. See Birkbeck v. State,
(b) Description of items to be seized
The search warrant affidavit adequately described the items to be seized. The Fourth Amendment to the United States Constitution commands that “no Warrants shall issue . . . [without] particularly describing . . . the . . . things to be seized.” U.S. Const. Amend. IV. In considering whether a search warrant affidavit adequately describes the items to be seized, we must determine whether the description of the item sought is sufficient to enable “a prudent officer executing the warrant to locate it definitely and with reasonable certainty.” Bishop v. State,
In the warrant affidavit, the investigator stated that he wanted to search the blue Toshiba laptop, other computers, hard drives, cell phones, CDs and DVDs, SD cards, memory sticks, and other media storage devices for images of child molestation. This description of the items to be seized was sufficient. See Smith v. State,
2. Gerbert argues that the evidence is insufficient to support his convictions. We agree with respect to one count related to possession of child pornography, and disagree as to all the others.
(a) Aggrauated sodomy
“A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less
Here, the aggravated sodomy count alleged that Gerbert put his mouth on B. T.’s sex organs, and that she was less than 10 years old at the time. Gerbert does not dispute that he committed the act of sodomy, but argues that the aggravated circumstances of the offense were not proven because the State introduced no testimony establishing B. T.’s age at the time of the offense. Contrary to Gerbert’s argument, the evidence shows that B. T. was born on September 16, 1999, she told her mother on September 21, 2010 that Gerbert had put his mouth on her vagina, and she waited two years to report the sexual offense to her mother. B. T.’s clinical psychologist testified at trial that “[B. T.] told me that when she was eight or nine that her stepfather had come into her room and had put his mouth on her vaginal area[.]” She further testified:
I asked her — one of the things that we do in terms of trying to establish time frames is to think about what other things might trigger a memory that would anchor it in time. She did tell me that she remembered the name of her second grade teacher, that that was the teacher that she had at the time, which would be consistent with her being eight or nine, because she had failed a grade.
Based on this evidence, the jury was authorized to find that B. T. was less than 10 years of age when Gerbert committed the act of sodomy on her and, therefore, to find Gerbert guilty of aggravated sodomy
(b) Sexual exploitation of children
Aperson commits the offense of sexual exploitation of children in the manner for which Gerbert was convicted when he or she knowingly possesses “any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.” OCGA § 16-12-100(b)(8). The statute defines a minor as a person under the age of 18 years. OCGA § 16-12-100(a)(l).
(i) Images of A. W.
In challenging his four sexual exploitation of children convictions related to images of A. W., Gerbert argues that he did not knowingly possess the sexually explicit images of A. W. His argument is without merit.
Knowledge and possession may be proved, like any other fact, by circumstantial evidence, including the “words, conduct, demeanor, motive, and all other circumstances connected with the act for which
Here, A. W. testified that Gerbert used a digital camera to take pictures of her engaged in sexually explicit conduct when she was 15 or 16 years old, and that she subsequently found these pictures on his Toshiba computer. Although these images were not found on Ger-bert’s laptop, Gerbert told A. W. that he would never delete the images, and the images were found in hidden folders on Gerbert’s iPhone. The hidden file locations on Gerbert’s phone were created by the Ractor application, the purchase of which was associated with one of Gerbert’s e-mail accounts. The evidence showed that the Ractor application allows a user to retrieve files even if the phone is lost or damaged. Based on this evidence, the jury was authorized to conclude that Gerbert took the sexually explicit photographs of A. W, transferred the images to different storage devices, and placed them in locations that only he could access.
Gerbert did not dispute that his electronic devices contained sexually explicit photographs, but he claimed that other people were responsible for placing them there. Gerbert’s Toshiba laptop had been stolen by A. W.’s boyfriend, although it was subsequently recovered, and Gerbert claimed that A. W.’s boyfriend had taken the pictures and had placed them on the Toshiba laptop. Gerbert also stated he and his wife “got[ ] onto the girls a lot about” the nude photographs on his computers, and he claimed his stepdaughters had transferred the images to multiple devices. Gerbert also claimed that his wife used his phone to purchase the Ractor application and transferred sexually explicit images of females, including those of her daughter, to his phone. Gerbert opined that his wife was seeking to put damaging evidence on his phone that would result in a payoff during a divorce. Although Gerbert blamed other people for the presence of sexually explicit images on his devices, he never testified that he attempted to delete the images, and the jury was authorized to reject his explanation for his possession of the images. Vega v. State,
Gerbert also relies upon Barton v. State,
Based on evidence that the nude images of A. W. were found on multiple devices belonging to Gerbert and were placed on his phone in a folder that the jury could conclude was meant to be accessible only to Gerbert, the jury was authorized to conclude that he knowingly possessed the nude images of A. W. See State v. Al-Khayyal,
(ii) Images of S. P.
Gerbert does not dispute possessing images of S. P. engaged in sexually explicit conduct, but argues that the State did not prove that he knew she was a minor at the time the pictures were taken and, therefore, did not establish a violation of OCGA § 16-12-100(b)(8). We agree.
Although the parties both assume that OCGA § 16-12-100(b)(8) requires the State to prove that a defendant knew the charged image depicted a minor, we have identified no decision of our Court or our Supreme Court that has explicitly decided that issue. We do now, and conclude that the State must prove the defendant’s knowledge that the image depicted a minor. Because the State did not prove that Gerbert knew that the image charged in Count 11 depicted a minor, we reverse that conviction.
OCGA § 16-12-100 defines the crime of sexual exploitation of children in eight different ways. See OCGA § 16-12-100(b)(l)-(8). Possession of child pornographyis definedinOCGA § 16-12-100(b)(8), which provides that “[i]t is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.” We have made it very clear that this paragraph requires the State to prove that the defendant knowingly possessed the illicit materials. See, e.g.,
Two decisions of our court have considered challenges to convictions for violation of Paragraph (b)(8) on the ground that the State failed to prove the defendant knew the age of the individuals pictured in the charged images. See Abernathy v. State,
Regardless of whether we answered this question in Abernathy or Henderson, we explicitly answer it here: OCGA § 16-12-100(b)(8) requires the State to prove that the defendant knew the person depicted in the image was under the age of 18. Our conclusion is based on the Supreme Court of Georgia’s decision in Phagan, where the Supreme Court held that the State had to prove the defendant had knowledge that the individual was a minor to sustain a conviction under OCGA § 16-12-100(b)(l).
This does not end our analysis of Gerbert’s argument, but it does determine the outcome. In Henderson, we concluded that the State proved that the defendant knew the children depicted were minors because the images showed children who were clearly prepubescent.
3. Gerbert next argues that the trial court erred in admitting evidence of other acts. We disagree.
The other acts evidence showed that in or around 1999, Rhonda Weaver, Gerbert’s ex-wife, went to a bedroom where her then-minor sister, J. L., had been sleeping. Weaver discovered Gerbert sitting in the dark, crouched in the corner of J. L.’s bedroom. When Weaver asked what Gerbert was doing, he responded that he was just watching J. L. sleep, which he later described as a “voyeuristic activity” Weaver also described that Gerbert’s relationship with J. L. was weird and embarrassing, because Gerbert and J. L. would often “spoon” on the couch when J. L. was 11 years old. J. L., as an adult, separately testified that while living with Gerbert and when she was 12 years old, she saw images on Gerbert’s computer that he explained to her were sex toys.
Gerbert argues that the court erred in admitting this evidence under OCGA § 24-4-404 (“Rule 404”) and OCGA § 24-4-414 (“Rule 414”). Although the State cited both Rule 404 and Rule 414 in its pretrial notice of intent to introduce the subject evidence, it abandoned its reliance on Rule 414, and its pretrial arguments on the
We review a trial court’s evidentiary rulings for an abuse of discretion. McCoy v. State,
Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .
Rule 404(b) is an evidentiary rule of exclusion, and for other acts evidence to be admissible, the State must show that: (1) the evidence is relevant to an issue other than defendant’s character, (2) there is sufficient proof so that the jury could find that defendant committed the act, and (3) the probative value is not substantially outweighed by undue prejudice under OCGA § 24-4-403 (“Rule 403”). State v. Jones,
(a) Relevancy of other acts evidence
The State argued that the other acts evidence was relevant to show Gerbert’s knowledge and intent. The trial court admitted the other evidence without specifying for which purpose it allowed the evidence, but it did charge the jury that the evidence could be considered only for the purposes of showing knowledge and intent.
Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24-4-401. This standard is a liberal
evidence that an accused committed an intentional act generally is relevant to show — the evidence, in other words, has some tendency to make more or less probable — that the same defendant committed a similar act with the same sort of intent, especially when the acts were committed close in time and in similar circumstances.
Olds v. State,
The other acts evidence was relevant on the issue of intent. In addition to the charges for which he was convicted, Gerbert was also charged with multiple counts of child molestation for (1) inserting his penis into A. W.’s vagina (Count 1) and (2) taking sexually explicit photographs of A. W. with the intent to arouse his sexual desires (Count 2). Although these charges were nolle prossed after the jury could not reach a verdict, by pleading not guilty, Gerbert put intent at is sue. “ [B] ecause a plea of not guilty puts the prosecution to its burden of proving every element of the crime — including intent — evidence of other acts that tends to make the requisite intent more or less probable to any extent is relevant.” Olds,
It was not just Gerbert’s entry of a not guilty plea that put intent at issue. Intent was clearly disputed with respect to the second child molestation offense charging Gerbert with taking sexually explicit photographs of A. W. with the intent to arouse his sexual desires (Count 2). A. W. testified that Gerbert took the sexually explicit photographs. In his defense, Gerbert claimed that A. W.’s boyfriend had taken the pictures at issue and had placed them on the laptop that the boyfriend stole from Gerbert and that was subsequently recovered.
The other acts evidence was relevant because it made it more probable that Gerbert took the pictures with the intent to arouse his sexual desires. The other acts evidence, which Gerbert does not dispute, showed that he was in J. L.’s room at night, crouched in a corner, for “voyeuristic” reasons; he frequently spooned J. L. such that J. L.’s sister, Gerbert’s ex-wife, became jealous; and Gerbert described sexual toys to J. L. Although Gerbert argues that these acts were not crimes, his conduct was certainly indicative of his state of mind. See State v. Ashley,
(b) Whether the probative value was substantially outweighed by undue prejudice
The determination of whether the probative value of other acts evidence is substantially outweighed by its prejudicial effect “lies within the discretion of the [trial] court and calls for a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.” Bradshaw,
Gerbert argues that the extrinsic acts were different than and temporally remote from the charged offenses and that these factors reduced the probative value of the other acts. But the “overall similarity between the extrinsic act” and the “temporal remoteness” are not the only factors that the court must consider. The court must make a “common sense assessment of all the circumstances surrounding the extrinsic” act, including prosecutorial need. Bradshaw,
The probative value of the evidence was not substantially outweighed by its prejudicial effect. It is unlikely that the jury would be more inflamed in any appreciable measure by the relatively minor other acts evidence than the jury already was by the heinous sexual offenses against children with which he was actually charged. The impact of the other acts evidence was thus relatively minimal. Cf. United States v. Williams,
4. Gerbert next argues that his trial counsel rendered ineffective assistance in various ways. To prevail on his claim, Gerbert “must show that trial counsel’s performance fell below a reasonable standard of conduct and that there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel’s deficient performance.” Scott v. State,
(a) Gerbert argues that trial counsel was deficient for failing to file a motion to suppress the sexually explicit images recovered from his computer.
Trial counsel testified at the motion for new trial hearing that he did not move to suppress this evidence because Gerbert abandoned the computer when he left it with a co-worker and never attempted to recover it. We agree with trial counsel’s evaluation of the merits of such a motion. “The constitutional protection of the Fourth Amendment does not apply to property which has been abandoned.” Watson v. State,
(b) Gerbert also argues that trial counsel was ineffective for failing to call Maureen, B. T.’s and A. W.’s mother, as a witness, because Maureen would testify that A. W. admitted that she had previously falsely accused Gerbert of child molestation. Trial counsel explained at the motion for new trial hearing that, although Maureen was initially willing to testify in Gerbert’s defense, counsel eventually became concerned about her reliability as a witness, and then, close to the start of the trial, she disappeared and could not be located. Trial counsel testified that, after discussing the options with Gerbert, he elected not to pursue Maureen as a witness and, instead, to use her absence to undermine the credibility of the molestation allegations made by her daughters.
“Trial strategy and tactics, such as deciding which witnesses to call, do not equate with ineffective counsel unless they are so patently unreasonable that no competent attorney would have chosen them.” Downer v. State,
(c) Gerbert argues that trial counsel was also ineffective for failing to secure a ruling on his motion to dismiss the indictment for prosecutorial vindictiveness. In his motion to dismiss, Gerbert alleged that immediately after the court granted his request for a continuance to obtain an expert, the prosecutor at the time stated to defense counsel and to Gerbert’s parents, “Nothing personal but I’m coming back with a new indictment and throwing the kitchen sink.” The
Gerbert cannot prevail on his ineffectiveness claim because he cannot show that the motion to dismiss would have been granted had it been pursued. Although prosecutors have broad discretion in how to charge a defendant and may seek a superseding indictment at any time prior to trial, a defendant may obtain dismissal of a superseding indictment by establishing that the prosecutor acted vindictively, meaning that the prosecutor was motivated by a desire to punish the defendant for exercising his rights. See United States v. Barner,
Here, Gerbert has failed to provide proof of actual vindictiveness and has failed to establish a realistic likelihood of vindictiveness. Although Gerbert’s allegation that the former prosecutor stated that he would return with a new indictment that “threw in the kitchen
Gerbert has similarly failed to establish a realistic likelihood of vindictiveness. His claim is based primarily on the former prosecutor’s purported statement that he interprets as reflecting a desire to punish him for obtaining the continuance, but we already concluded that there is no proof the prosecutor ever made the vindictive statement.
Gerbert also asserts that the prosecutor’s actions were vindictive because no new information came to light to justify the additional charges. The first and second indictments are not included in the record, and so it is not possible to determine exactly what conduct was charged prior to the continuance and when those indictments were returned. We can deduce from the record, however, that Gerbert was to be initially arraigned in March 2012 on two counts of child molestation, aggravated sodomy, two counts of sexual exploitation of children, and aggravated sexual battery. And we know from the trial evidence that in June 2012, the investigator recovered Gerbert’s Mac Mini that contained sexually explicit images of S. R, conduct for which Gerbert was charged with sexual exploitation of children (the count that we reversed above). Thus, at least one count was based on information that came to light at least after the first indictment was returned. And as suggested by the State on appeal, the prosecutor’s decision not to indict Gerbert on additional charges sooner could have been attributed to the prosecutor’s hope that the case would be resolved without a trial. Given that at least one count was based on information that came to light following the return of the first indictment, and it is not clear when the second indictment was returned, the prosecutor’s decision to obtain the third indictment could equally be attributable to legitimate reasons, which is insufficient to raise the presumption of vindictiveness. See United States v.
In sum, we reverse Gerbert’s conviction on Count 11, and affirm his remaining convictions.
Judgment affirmed in part and reversed in part.
Notes
This opinion should not be read to require such evidence to defeat a staleness argument.
In the parties’ only citation of authority on this question, Gerbert cites Berry as holding generally that OCGA § 16-12-100 requires the State to prove that a defendant knew the age of the minor. ButBe;Ty, like Phagan, considered only the crime defined in OCGA § 16-12-100(b)(l).
We must confess that we are not sure what to make of our suggestion in dicta in Abernathy that expert testimony could provide sufficient evidence to establish the defendant’s knowledge in cases involving post-pubescent teenagers, while cases involving images of prepubescent children could be determined without expert testimony. Abernathy,
hiX-Citement Video, the United States Supreme Court interpreted the term “knowingly” found in 18 U.S.C. § 2252, a federal statute criminalizing certain activities involving the sexual exploitation of minors, and concluded that the scienter requirement applied to the sexually explicit nature of the material and to the age of the performers.
Our opinion that the State failed to prove Gerbert’s knowledge is limited to the specific evidence of this case, namely the image itself that does not make clear the individual was a minor and the location of the file in a hidden folder. Certainly, to establish the defendant’s requisite knowledge, the State may rely on other circumstantial evidence, includingthe “words, conduct, demeanor, motive, and all other circumstances connected with the act for which the [defendant] is prosecuted.” Freeman,
Sometime after Gerbert filed the motion to dismiss, a new prosecutor took over the case.
Concurrence Opinion
concurring fully and specially
While I concur fully in the majority’s opinion, I write separately to address Gerbert’s argument that the evidence was insufficient to sustain his conviction for possessing sexually explicit photographs of A. W. As discussed by the majority in Division 2 (b) (i), Gerbert relies upon Barton v. State
I agree with the majority that the instant case is readily distinguishable from Barton. And I write separately to make clear that a conviction for possession of child pornography does not hinge upon a defendant engaging in affirmative conduct to save or download the relevant files/copies that are presented in evidence, nor does a conviction always require that the defendant have knowledge of the relevant files’ existence, as Gerbert appears to take Barton to mean. Indeed, as thoroughly explained by this Court in New v. State,
In Barton , we concluded that evidence of the temporary Internet cache files alone was not sufficient to sustain the conviction under OCGA § 16-12-100 (b) (8) because there was insufficient evidence to prove knowing possession of the files themselves. Barton makes no mention whatsoever of any other evidence presented by the State, which we understand to mean that the temporary Internet files represented the State’s sole evidence, and Barton therefore narrowly approached the question in terms of presen t possession of*183 child pornography based on the peculiar facts of that case. But Barton cannot be read to foreclose the State’s ability to prosecute and convict a defendant for prior possession of child pornography when automatic backup files, in addition to other direct or circumstantial evidence, establish same.9
Indeed, in New, we distinguished present possession cases from situations in which the State proves prior possession. And in doing so, we explained that
[i]n the context of prior possession of child pornography, a computer user knowingly possesses the contraband when the user intentionally downloads child pornography to the computer but later deletes the file or when he or she performs some function to reach out and select the image from the Internet. Indeed, a computer user who intentionally accesses child pornography images on a website gains actual control over the images, just as a person who intentionally browses child pornography in a print magazine “knowingly possesses” those images, even if he later puts the magazine down. In this way, any backup or residual files become evidence of possession at a prior point; the files need not represent the literal contraband. Instead, the backed up or residual files are proof that a crime has occurred—that is, proof of the corpus delicti. And while these files standing alone are not sufficient to establish that a defendant knowingly possessed those images at a prior point, they can be used in conjunction with other circumstantial evidence to prove such possession. The totality of the evidence presented by the State, of course, must support an inference that the act was wilful and not inadvertent.10
Thus, in New, we concluded that
even if the State did not (and could not) present evidence that New was aware of the shadow copy images’ existence and, thus, could not prove present possession of those files, there was more than sufficient circumstantial evidence for*184 the jury to conclude that New knowingly possessed child pornography on his computer at a prior point.11
And the files that remained on New’s computer “were evidence of prior possession of the original images, no matter the manner in which those original images were viewed—whether New downloaded the original images or limited his action to temporarily viewing the images on a web page.”
Thus, I wish to reiterate that although Barton speaks to a lack of affirmative conduct on the part of the defendant therein to save or download the subject files to his computer, the focus of that opinion was on present possession of the files at issue because, there, we also focused on the fact that the defendant was unaware of the files’ existence and, could not access or retrieve the images (facts which are wholly inapposite to those in the case sub judice). And once again, as thoroughly detailed in New, nowhere did Barton suggest that a defendant could not be convicted of prior possession of child pornography when automatically saved files of which a defendant is unaware (i.e., files saved to a computer without the defendant taking affirmative conduct with regard to those exact files/copies) and other circumstantial or direct evidence may support a conviction for same.
Because this distinction might still be unclear to the bench and bar, it is worth emphasizing that the approach we took in Barton is often referred to as the “present possession approach,” which has been described as analogizing a computer to a file cabinet with the temporary Internet file cache as a file drawer.
Similarly, in New, we were presented with a situation in which images of child pornography were located in a portion of the defendant’s hard drive that was, according to a computer forensics expert, inaccessible to an ordinary user—the system volume information. But in New, we were cognizant that, “unlike tangible contraband, digital images do not necessarily exist in a singular form.”
Using the “evidence of approach,” the computer becomes analogous to a video camera recording the user’s activity, rather than a file cabinet as is the case with the “present possession approach.”
As a practical matter, the logic of the “evidence of approach” becomes apparent when one considers a hypothetical situation in which an individual visits a bookstore that secretly deals in child pornography, specifically requests a child pornography magazine, sits down to read the magazine and examine its content, and then returns the magazine before leaving.
So again, using a present-possession approach in Barton, the cached pornographic files were viewed by this Court as constituting the literal contraband that the defendant was accused of possessing. And the Court in Barton agreed with the defendant that he could not be convicted of knowing possession when “(1) he took no affirmative action to store the images on his computer; (2) he was unaware that the computer had automatically saved those images to the hard drive; and (3) he had no ability to retrieve or access those images.”
Again, under the evidence-of approach used in New, leftover files do not always represent the literal contraband, but instead—when combined with other circumstantial evidence—may represent evidence of prior possession.
In conclusion, although Barton is limited to a present-possession approach, it cannot—and should not—be read to “foreclose the State’s ability to prosecute and convict a defendant for prior possession of child pornography when automatic backup files, in addition to other direct or circumstantial evidence, establish same.”
Id. at 92-93 (1) (footnotes omitted).
Id. at 93-94 (1) (punctuation and footnotes omitted).
Id. at 95 (1).
Id.
See id. (noting that automatically stored “shadow copies, combined with the expert’s testimony as to LimeWire logs that indicated searches for and downloads of child pornography, the number of child pornography images discovered, the user-installed deletion software and attendant settings, and the fact that [the defendant] photographed B. N. and T. R engaged in ‘strip wrestling,’ presented the jury with circumstantial evidence by which to find that [the defendant] violated OCGA § 16-12-100 (b) by knowingly possessing child pornography at a prior time”).
Ty E. Howard, Don’t Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based on Images Located in Temporary Internet Files, 19 Berk. Tech. L.J. 1227, 1254-55 (V) (A) (1) (Fall 2004).
Id. at 1254 (V) (A) (1).
Id. at 1254-55 (V) (A) (1).
Id. at 1256 (V) (B) (1) (emphasis supplied).
Id. at 1255 (V) (A) (2); see also Wise v. State,
Howard, supra note 14, at 1253 (V).
Id. at 1253 (V) (footnote omitted).
Howard, supra note 14, at 1255 (V) (A) (2).
Id.
Id.\ see also Wise,
The “evidence of approach” does not preclude prosecution for possession of residual files that could be considered literal contraband, as when the surrounding circumstances are more akin to continued possession of downloaded images. See State v. Al-Khayyal,
See Howard, supra note 14, at 1265-66 (VI) (A).
Id. at 1267 (VI) (A).
United States v. Kain,
OCGA § 16-12-100 (b) (8) (emphasis supplied); see Al-Khayyal,
See Tecklenburg,
But see supra notes 24 & 25.
United States v. Pruitt,
Id.
New,