Gerbert v. State

• Decision Date: 28 October 2016
• Docket Number: A16A0868
• Citation: 339 Ga.App. 164,793 S.E.2d 131
• Parties: GERBERT v. The STATE.
• Court: Georgia Court of Appeals

339 Ga.App. 164

793 S.E.2d 131

GERBERT

v.The STATE.

A16A0868

Court of Appeals of Georgia.

October 28, 2016

Scott Thomas Poole, Canton, for Appellant.

Robert William Mooradian, Kevin Thomas McMurry, Peter J. Skandalakis, La Grange, for Appellee.

Peterson, Judge.

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 , 336 Ga.App. 875, 875, 785 S.E.2d 431 (2016). So viewed, the evidence shows that Gerbert moved in with Maureen Taylor and her three daughters, A.W., B.T., and C.W, before the couple married in 2003. One night, when B.T. was about eight or nine years old, she awoke in her bedroom to find that Gerbert was licking her genital area. Gerbert immediately ran downstairs when B.T. woke up. B.T. did not report the incident to her mother until September 21, 2010, about two years after it occurred and shortly after Gerbert moved out of the house, because her mother was not home at the time of the event and B.T. was scared of Gerbert.

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," prompting Maureen's sister to call the police. B.T. repeated the allegations of abuse to the police.

A police 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 coworker of Gerbert's contacted the Coweta County Sheriff's Office. The former coworker reported that he had a computer that Gerbert had asked him to store after Gerbert left their former workplace. The former coworker 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.

1. Gerbert argues that the trial court erred in denying his motion to suppress, because A.W.'s information regarding the images of child pornography was stale, and the investigator's search warrant application did not particularly describe the items to be seized. We disagree.

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 , 285 Ga. 75, 77–78, 673 S.E.2d 237 (2009). On appeal, we must determine whether the magistrate had a "substantial basis" for concluding that probable cause existed to issue the search warrant. Amica v. State , 307 Ga.App. 276, 278 (1), 704 S.E.2d 831 (2010). "[D]oubtful cases should be resolved in favor of upholding a magistrate's determination that a warrant is proper." Sullivan v. State , 284 Ga. 358, 361 (2), 667 S.E.2d 32 (2008) (citations and punctuation omitted).

(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, 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 , 273 Ga.App. 850, 853 (1) (a), 616 S.E.2d 189 (2005) (punctuation and footnotes omitted). To determine whether the information relied upon in obtaining a search warrant is stale, a judge should determine whether the circumstances indicate a reasonable probability that the conditions referred to in the affidavit continue to exist at the time of the issuance of the search warrant. Tarvin v. State , 277 Ga. 509, 511 (4), 591 S.E.2d 777 (2004).

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 , 292 Ga.App. 424, 433–34 (6), 665 S.E.2d 354 (2008), disapproved on other grounds byState v. Gardner , 286 Ga. 633, 634, 690 S.E.2d 164 (2010) ; Buckley v. State , 254 Ga.App. 61, 62, 561 S.E.2d 188 (2002). See also United States v. Lovvorn , 524 Fed.Appx. 485, 487 (11th Cir. 2013) ("Files on a computer are less likely than other types of contraband to disappear over time[.]"). Because the nature of the files sought meant that it was not likely to have disappeared with the passage of time, and there was evidence that Gerbert intended to retain the files,¹ the warrant was not based on stale information.

(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 , 271 Ga. 291, 294, 519 S.E.2d 206 (1999).

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 , 274 Ga.App. 106, 110 (3), 616 S.E.2d 868 (2005) (holding that search warrant affidavit sufficiently described items to be searched when it sought evidence of child molestation and sexual exploitation of children, including, but not limited to, pictures, computers, and videos); Tyler v. State , 176 Ga.App. 96, 97 (1), 335 S.E.2d 691 (1985) (finding that search warrant description authorizing search for "pornographic material which is in violation of Georgia law" sufficiently described items to be seized). Because Gerbert's challenges to the search warrant affidavit fail, the trial court did not...