HOLZHEUSER v. THE STATE.
A19A0757
Court of Appeals of Georgia
June 12, 2019
DO-025 C
DOYLE, Presiding Judge.
FOURTH DIVISION, DOYLE, P. J., COOMER аnd MARKLE, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
Following a jury trial, Robert Holzheuser was convicted of child molestation1 and public indecency.2 Holzheuser now appeals from the denial of his motion for new trial, contending that (1) he received ineffective assistance of counsel with respect to (a) the admission of certain website images admitted at trial, (b) the admission of his rеcorded confession to police, and (c) the failure to request a downward deviation from mandatory sentencing under
Construed in favor of the verdict,3 the evidence shows that a family was shopping at a home improvement store when the 9-year-old daughter became upset and asked her mother to leave the store immediately. They left, and the daughter soon disclosed to her father that a male stranger had lifted up his sweatshirt and exposed his penis to her while they were in the store. The family returned to the store, which eventually was able to produce a surveillance video of the incident after the family filed a police report. Based on the video and other store records, the store and police were able to determine that the suspect in the video purchased a gift card using a debit card issued to Holzheuser.
Holzheuser was identified as an active member of the U. S. Navy, so police contacted Special Agent Jason Boswell, an investigator with the Naval Criminal Investigative Service. Boswell contacted Holzheuser‘s commanding officer and arranged a time to interview Holzheuser that would not interfere with Holzheuser‘s military duties. At the appointed time, Holzheuser reported to the interview, which was conducted by
Based on the interview and other investigation, Holzheuser was indicted in superior court for committing one count each of child molestation and public indecency. Prior to trial, he moved to exclude certain sexual images of children found in connection with a search of his cell phone, which motion was denied. Following a jury trial, he was found guilty on both counts, and the trial court merged the indecency count into the child molestation count. Holzheuser moved for a new trial, and after an evidentiary hearing, the trial court denied his motion, giving rise to this appeal.
1. Holzheuser first argues that he received constitutionally ineffective assistance of trial counsel on three grounds: (a) the admission of certain website images, (b) the admission of his recorded police interview, and (c) his trial counsel‘s failure to request a downward deviation from the mandatory sentencing provision in
Under Strickland v. Washington,4 to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel‘s performance was deficient and “that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.”5 “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.”6 If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong.7 In reviewing the trial court‘s decision, “[w]e accept the trial court‘s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”8
With this framework in mind, we turn to Holzheuser‘s specific arguments on appeal.
(a) Failure to object to the admission of website images. At trial, the State examined Boswell about the investigation he conducted after the police relayed the family‘s complaint about Holzheuser. Boswell explained that part of the investigation included reviewing the contents of Holzheuser‘s smart phone, based on Holzheuser‘s admission during the police interview that he had viewed child pornography on his phone.9 As part of that search, Boswell obtained a list of the websites that had been viewed on Holzheuser‘s phone as well as Internet search terms and notes stored in a note-taking application. Included in this information were sexually suggestive uniform
According to Boswell, the images and web sites from these searches featured “images [of] consistently young[] girls in their underwear or lingerie.” As part of his testimony, Boswell carefully explained that these were images that displayed when he searched the terms and URLs found on Holzheuser‘s phone; he did not claim that the images themselves were found on Holzheuser‘s phone. Essentially, “I opened up three of the links to get a gist of what is on the website or where it takes you. And that was enough for me.” He also testified that there were no images that he believed to be pornographic saved on the phone itself, and on cross-examination, Boswell agreed that he did not know whether Holzheuser actually viewed any of the particular images presented at trial.
(i) Authentication. Holzheuser argues that his trial counsel should have objected to the captured images introduced during Boswell‘s testimony because they were not properly authenticated. Holzheuser cites United States v. Bansal,11 arguing in his brief that the Federal Rules of Evidence “require[] the use of an internet archive to show how that website appeared at the time of access. . . .” While that case did involve testimony of a witness describing an internet archive called the “Wayback Machine,” the case did not purport to establish the clear rule that Holzheuser urges here. Instead, Bansal merely reiterates one way to satisfy
The applicable rule in Georgia is
(ii) Relevance. Holzheuser similarly argues that his trial counsel should have objected on the ground that the website images were not relevant to the issues at trial because there was no evidence that Holzheuser viewed them. Relevant evidence is “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.”18
The images the State introduced through Boswell were admitted, in part, to show Holzheuser‘s sexual intent in exposing himself to a young girl. Demonstrating a prurient interest in underage girls would support a finding that Holzheuser intended to expose himself for the purpose of sexual gratification, which is an element of child molestation.19 Holzheuser denied any sexual intent during his police interview, so evidence tending to prove that fact would be relevant. Accordingly, a relevance objection would have been meritless and cannot support Holzheuser‘s ineffective assistance claim.20
(iii) Rule 403. Holzheuser next argues that his trial counsel should have objected on the ground that the images were inadmissable under
Holzheuser points to the fact that there was no evidence that he actually viewed the specific images at issue, and he urges that this deprived the evidence of probative value. Holzheuser misapprehends the purpose of the evidencе. The State did not argue that the images were on Holzheuser‘s phone or that Holzheuser viewed the particular images proffered through Boswell‘s testimony. Instead, the State argued that the evidence was representative of the type of images available on the websites Holzheuser admitted to visiting as well as on URLs stored on Holzheuser‘s phone. Police found no sexually explicit images actually stored on Holzheuser‘s phone, so the evidence was useful to show the type of content displayed when someone visited the URLs and used the search terms saved on Holzheuser‘s phone. Futher, the images were probative of the fact that Holzheuser sought sexual gratification by viewing sexually suggestive images of underage girls. As noted above, this would be relevant to his intent in committing the acts alleged in the indictment.
The harm that Rule 403 seeks to minimize is not mere prejudice, but “unfair prejudice,”21 such as by introducing inflammatory
Holzheuser‘s phone and in his note-taking app. Thus, the material offered by Boswell was part of the subject matter of the police interview, and it was helpful in demonstrating the type of content in Holzheuser‘s phone and web activity.22 Boswell was careful to explain what the images were as well as what they were not, and the State did not attempt to confuse the jury as to what the images represented. Under these circumstances, the challenged evidence did not present a risk of undue prejudice that substantially outweighed its probative value. Accordingly, trial counsel‘s failure to make an objection on Rule 403 grounds does not meet Holzheuser‘s burden under Strickland.
(b) (i) Failure to object to admission of police interview based on a fear of losing employment. Prior to trial, Holzheuser‘s trial counsel moved to exclude the police interview, and the trial court held a Jackson-Denno23 hearing at whiсh Boswell testified. The trial court denied Holzheuser‘s motion to exclude the interview, finding it voluntary. On appeal, Holzheuser contends that his trial counsel should have objected to admission of the interview on the ground that Holzheuser consented to the
interview only because he reasonably feared he would lose his duty-required security clearance if he did not speak to police.
As support, Holzheuser cites Garrity v. New Jersey,24 which addressed police officers accused of fixing traffic tickets. As part of an investigation оrdered by the Supreme Court of New Jersey, the state attorney general interviewed the officers, warning them that they had a right to refuse to answer the questions, but if they refused, they would be subject to removal from their jobs pursuant to a state statute.25 The United States Supreme Court ruled that the interviews were not voluntary because “the choice imposed on [the officers] was one between self-incrimination or job forfeiture.”26
Here, Boswell explained the interview scenario in this case. At the outset, Boswell explained to Holzheuser that he was not in custody: “The door is not locked. You‘re free to leave at any time.” Holzheuser replied that he “definitely underst[oo]d.” Boswell then read Holzheuser an acknowledgement and waiver of rights stating:
I have the right to remain silent and make no statement at all[.] Any statement I make can be used against me in a trial by court-marshall or other judicial or administrative proceeding[.] I have the right to consult with a lawyer prior to any questioning. This lawyer may be a civilian lawyer retained by me at no cost to the United States, a military lawyer appointed to act as my counsel at no cost to me, or both[.] I have the right to have my retained lawyer and/or appointed military lawyer present during this interview[.] . . I may terminate this interview at any time, for any reason. . . With that understanding, I have decided that I do not desire to remain silent, consult with a . . lawyer, or have a lawyer present at this time. I make this decision freely and voluntarily. No threats or promises have been made to me.
Boswell explained to Holzheuser that these rights “are not going away. . . [I]f you would like to speak with us or you have anything that you want to say, we‘re open to hear it. But if you decide that you don‘t, you can always exercise [the right not to speak]. You can turn it off for any reason at any time.” Holzheuser agreed to sign the waiver.
With respect to the circumstances surrounding the interview, at trial Boswell explained that Holzheuser was not in custody at the time of the interviеw, but military protocol requires that suspects be read the
[Military suspects] are under authority of a commanding officer. He had to come to our office that morning. We talked to his commanding officer. [Holzheuser] was sent there. Once he gets to the building, that‘s done. He doesn‘t have to speak to us, but we have to explain that, you were told to come here. You are not in custody. You are not under arrest. The door is not locked. You are free to leave at any time. We wоuld like to speak to you. I‘m going to go over your rights. Once you‘ve acknowledged those, we‘ll have a conversation if you want to. . .[W]hile they told you to come here, again, your part is over.
As explained by Boswell, Holzheuser was under an obligation to report to the interview by virtue of the military command authority, but he was not under obligation to speak or substantively engage in the interview, and he could invoke his right to remain silent or leave at any time. Holzheuser cites no regulation or other law requiring him to submit to the interview process and answer the investigators’ questions. This materially distinguishes the facts of this case from those in Garrity, where the officers were under a statutory obligation to follow through with the substance of the interview or be subject to discipline for not doing so.27 That Holzheuser might be subject to discipline for the content of his interview did not render the interview involuntary; if anything, it would militate against participating
in the interview, which Holzheuser elected to do with knowledge of his right to remain silent. Further, Boswell‘s urging Holzheuser to tell the truth in the interview to help himself in the eyes of his commanding officers or eligibility for duty status was not improper.28 Under these circumstances, an objection pursuant to Garrity would not require exclusion of the interview, and this argument demonstrates no basis for reversal.
(ii) Failure to object to the police interview on the ground that Holzheuser was required to waive his Miranda rights to make a voluntary statement. Next, Holzheuser argues that his trial counsel should have argued that he was misled into waiving his rights because, as stated in his appellate brief, Holzheuser “would need to waive his rights to speak to Agent Boswell as he [had] been ordered to do when his ‘Skipper called him in.‘” Holzheuser points to Boswell‘s statement that “before we can really get into what has gone on . . . we need you to acknowledge your rights before [we] get into that. They‘re not going away.” Based on this, Holzheuser argues that he was obligated to waive his rights in order to speak to investigators, which
contravenes the holding in State v. Darby: “[A] suspect can always make a spontaneous, voluntary statement which would be admissible at trial. . . [More fully, a suspect can] make a voluntary statement, but . . . he [can] not be interrogated by the officers, without signing the waiver.”29
In light of the facts before us, Holzheuser‘s argument does not require reversal. In Darby, the defendant made a spontaneous statement after invoking his right to counsel, and the officers responded that “If you want to tell us your side of the story you can - you know, you can sign off on a waiver and tell us your side of the story.”30
Here, unlike in Darby, [Holzheuser] did not make a spontaneous statement оr indicate that he wanted to do so. Instead, the agent explained that he was presenting him with his rights before proceeding with an “interview” about what had occurred. After confirming that [Holzheuser] understood his rights, the agent began questioning him.31
(c) Failure to request a downward deviation from the mandatory minium sentence. In his last ineffective assistance claim, Holzheuser contends that his trial counsel shоuld have requested a downward deviation in his sentence pursuant to
In the court‘s discretion, the court may deviate from the mandatory minimum sentence33 [applicable to certain sexual offenses], or any portion thereof, when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum or provided that . . . [t]he court has not found evidence of a relevant similar transaction. . . .
Holzheuser has provided no evidence that the State would have agreed to a downward deviation, nor he has demonstrated that the trial court felt constrained not to exercise its discretion in his favor by his failure to request a lower sentence.
Nevertheless, even assuming the trial court would exercise its discretion in Holzheuser‘s favor, the trial court would be authorized to do so only if it did not find evidence of a relevant similar transaction.34 The trial court did find such evidence, and in light of our holding below in Division 2 affirming that ruling, the trial court was not authorized to deviate from the statutory sentencing requirement in
2. Holzheuser‘s last argument is that the trial court erred by admitting evidence under
intent to arouse or satisfy the sexual desires of either the child or the person.”37
Here, after the State provided notice of its intent to admit evidence that Holzheuser committed a prior act of child molestation, the court held a hearing, reviewed the police report from the prior incident, and admitted the evidence. The record shows that in 2013, an 11-year-old girl was staying at a local motel with her family. On several occasions over the course of a week, when the girl walked to her school bus in the morning, the girl observed notes in the window of a nearby hotel room occupied by Holzheuser. One note said, “tap on the window to see my D-I-C-K,” and another note said “I want to lick your P-U-S-S-Y.” Another time, the girl saw a phone resting against the window and displaying a photo of a nude woman receiving oral sex. The girl told her mother, and when they immediately came to look
for the sign, it was gone. The mother deduced by the timing of the notes that they were directed at her daughter.
This record supports a finding that Holzheuser displayed indecent notes, including
The exception to the general rule that evidence of other crimes is not admissible has been most liberаlly extended in the area of sexual offenses[, particularly against minors]: In [such cases], evidence of similar previous transactions is admissible to show the lustful disposition of the defendant [toward underage children]. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.41
In light of the targeting of similarly-aged, female child victims, as well as the semi-public naturе of indecency in each case, the trial court did not abuse its discretion in admitting the prior act evidence under
Judgment affirmed. Coomer and Markle, JJ., concur.