Henderson v. State

• Decision Date: 20 March 2013
• Docket Number: No. A12A2240.,A12A2240.
• Citation: 320 Ga.App. 553,740 S.E.2d 280
• Parties: HENDERSON v. The STATE.
• Court: Georgia Court of Appeals

320 Ga.App. 553

740 S.E.2d 280

HENDERSON

v.The STATE.

No. A12A2240.

Court of Appeals of Georgia.

March 20, 2013.

Albert C. Palmour Jr., Steven Alexander Miller, for Appellant.

Leigh Ellen Patterson, Dist. Atty., Harold Winfred Goldin, Jr., Asst. Dist. Atty., Rome, for Appellee.

DOYLE, Presiding Judge.

Following a jury trial, Charles Ralph Henderson was convicted on four counts of sexual exploitation of children in violation of OCGA § 16–12–100(b)(8). The trial court denied Henderson's subsequent motion for new trial, and he appeals, alleging that (1) the State failed to prove beyond a reasonable doubt his knowledge of the ages of the children depicted in the materials; (2) the failure to list the ages of the children in the indictment constitutes a nonamendable defect; (3) the trial court erred by denying his motion to suppress; (4) the trial court erred by improperly commenting on the evidence; (5) the trial court erred by empaneling a juror that Henderson lawfully struck; (6) trial counsel was ineffective; (7) the trial court erred by admitting similar transaction evidence; and (8) the trial court erred by failing to instruct the jury on his sole defense of accident. We affirm, for the reasons that follow.¹

“[O]n appeal from a criminal conviction, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility, and the evidence is viewed in the light most favorable to support the verdict, with the defendant no longer benefitting from a presumption of innocence.” ²

So viewed, the evidence shows that the Georgia Bureau of Investigation (“GBI”) Internet Crimes Against Children Task Force uses automated programs to identify internet protocol (“IP”) addresses of computer users in peer-to-peer networks who are sharing files containing child pornography. In September 2009, the Task Force identified a Rome, Georgia IP address as sharing multiple files of suspected child pornography. GBI Agent Jeffrey Brown obtained a subpoena from Comcast, the cable provider for the IP address, and the cable provider responded that the IP address was assigned to Henderson. Agent Brown then obtained a search warrant for Henderson's home.³ During the search, officers found several DVDs in Henderson's bedroom and living room, some of which were labeled “XXX.” The GBI also seized Henderson's desktop computer, where subsequent computer analysis revealed numerous movie files depicting images of children engaged in sexual acts with adults, including sodomy and masturbation.

Henderson was arrested and charged with four counts of sexual exploitation of children. At trial, the jury viewed portions of the movie files and DVDs. Police officers familiar with some of the movie files and the ages of the children contained therein testified that one of the movies depicted a four or five-year-old female, while another depicted a female approximately five to nine years old. A police officer testified that the DVDs found in Henderson's home, some of which contained sexually explicit images of children, had been burned onto the DVDs from a computer using specific software, and Henderson's computer contained DVD burning software.

At trial, Henderson testified that he “didn't try to get” the child pornography, but in fact “punched in on something else,” admitting that he “watch[ed] porno, but it wasn't nothing about any young'uns.” According to Henderson, when he tried to delete the child pornography, “[i]t would not delete from that page, but it was going somewhere else, because [he] found it later.” He admitted that he downloaded some of the images onto DVDs to show to a friend who could help him delete the images from his computer, explaining that the friend “don't believe nothing I tell him unless I show it to him.” Henderson testified that he labeled the DVDs as “XXX” to keep them separate from his other DVDs.

The arresting officer testified at trial that Henderson admitted to him that his computer contained images of child pornography, but Henderson insisted he was not aware that such possession was illegal. Henderson also admitted to the officer that he downloaded movie files containing images of child pornography and that he used various search terms, including bestiality, to find the material.

Henderson was convicted on all four counts, and the trial court denied his subsequent motion for new trial. This appeal followed.

1. Henderson enumerates that the State failed to prove beyond a reasonable doubt his knowledge of the ages of the children depicted in the movies.⁴ This enumeration is without merit.

A person commits the offense of sexual exploitation of children when he “knowingly ... possess[es] or control[s] any material which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct.” ⁵ The statute defines a minor as a person under the age of 18 years.⁶ “It is axiomatic that the [S]tate bore the burden of establishing each element of this crime, and thus the [S]tate was required to prove that the persons depicted in the photographs were under 18 years of age.” ⁷

The jury viewed DVDs of the movie files found on Henderson's computer and in his home, which depicted small children, who as the trial court concluded, were “clearly prepubescent.” Therefore, the jury was authorized to conclude that the children depicted in the movies were under the age of 18.⁸

[320 Ga.App. 556]2. Henderson contends that the trial court erred by denying his motion in arrest of judgment because the indictment was fatally defective and subject to an arrest of judgment because it did not allege that the materials depicted sexually explicit activity by persons under the age of 18. Pretermitting the merit of this argument,⁹ Henderson's motion was untimely, and we cannot consider this enumeration.

“A motion in arrest of judgment is a post-trial means by which a defendant may challenge an indictment as one would do in a general demurrer. However, a motion in arrest of judgment must be filed within the term of court in which the judgment was rendered.” ¹⁰ Here, the verdict was entered on May 17, 2011, and the final disposition was entered on June 29, 2011. Henderson did not file his motion in arrest of judgment until July 14, 2011. The Floyd County terms of court begin on the second Monday in January, March, July, and September, and on the first Monday in May and November.¹¹ “Accordingly, we cannot address the merit of [Henderson's] motion in arrest of judgment because it was not timely filed.” ¹²

3. Henderson argues that the trial court erred by denying his motion to suppress because the subpoena offered in support of the search warrant was improper. This enumeration presents no basis for reversal.

OCGA § 35–3–4.1(a)(1) provides:

In any investigation [regarding the sexual exploitation of children] involving the use of a computer or an electronic device..., the director, assistant director, or deputy director for investigations shall be authorized to issue a subpoena, with the consent of the Attorney General, to compel the production of electronic communication service or remote communication service records or other information pertaining to a subscriber or customer of such service, exclusive of contents of communications.

Pretermitting whether Henderson has standing to challenge the GBI's subpoena to Comcast, his internet service provider, GBI Agent Brown testified regarding the procedure he employs for securing a subpoena from an internet provider in such a case: Brown drafts the subpoena, including therein the IP address in question, “forwards it to [his] supervisor, who will forward it to the Deputy Director or Assistant Director or Director for approval. From there it goes to the [A]ttorney [G]eneral's office[,] and they send back a confirmation.” According to Agent Brown, the consent of the Attorney General's office in this case was reflected in a letter signed by an assistant attorney general on September 23, 2009.¹³ Thus, the trial court did not err by denying Henderson's motion to suppress (and subsequent motion for new trial) based on an allegedly improper subpoena.

4. During trial, at the conclusion of Agent Brown's direct examination, the trial court reviewed the evidence that had been admitted until that point, noting that one of the exhibits was “[two] DVDs located in the defendant's house in the bedroom,” while another exhibit consisted of “[six] DVDs located at the defendant's house in the [living room].” Henderson contends that these statements constituted improper commentary of the evidence prohibited by OCGA § 17–8–57 because possession and knowledge are essential elements of the charged crimes. We disagree.

OCGA § 17–8–57 provides:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

In this case, “the context of the trial court's references shows that they generally were made for the purposes of administering the trial and clarifying which exhibit was associated with which [evidence].” ¹⁴The trial court's statements were not an expression of the trial court's opinion regarding whether Henderson knowingly possessed materials depicting sexually explicit images of children.¹⁵

Under these circumstances, we find no error because OCGA § 17–8–57 does not prohibit the trial judge from taking such measures as necessary to ensure the orderly administration of the trial, and the court may even propound questions to a witness to clarify testimony when necessary in order to enforce its duty to ensure a fair trial. ¹⁶

Furthermore, ...