Hesrick v. the State.
| Decision Date | 10 March 2011 |
| Docket Number | No. A10A1770.,A10A1770. |
| Citation | 707 S.E.2d 574,308 Ga.App. 363 |
| Parties | HESRICKv.The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Jennifer R. Burns, for Appellant.Larry Chisolm, Savannah, Emily Catherine Thomas, for Appellee.ELLINGTON, Chief Judge.
[1] Following a bench trial, the Superior Court of Chatham County found David Hesrick guilty beyond a reasonable doubt of sexual exploitation of children, OCGA § 16–12–100(b)(8), and two counts of making false statements to law enforcement officers, OCGA § 16–10–20. He appeals, contending that the trial court erred in denying his motion to suppress evidence seized during a warrantless search of his home. For the following reasons, we affirm.
Because the trial court sits as the trier of fact when ruling on a motion to suppress or a motion in limine, its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them. When we review a trial court's decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court's findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review. With mixed questions of fact and law, the appellate court accepts the trial court's findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.
(Citations and punctuation omitted.) State v. Tousley, 271 Ga.App. 874, 611 S.E.2d 139 (2005). Further, “[w]hen reviewing a trial court's ruling on a motion to suppress, we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.” (Citation and punctuation omitted.) Postell v. State, 279 Ga.App. 275, 276(1), 630 S.E.2d 867 (2006).
Viewed in such light, the evidence in the record shows that, on November 28, 2008, two officers with the Savannah–Chatham Metropolitan Police Department were dispatched to the scene of a domestic dispute. Upon arrival, they encountered a man, Cody Hoffman, in the front yard. Hoffman was the person who had called the police, and he told the officers that he and the homeowner, Hesrick, had been in a fight earlier that day and that Hesrick had “ basically kicked” him out of the residence.
The officers knocked on the front door, and Hesrick unlocked the door and let them into the house. Hesrick told the officers that Hoffman had broken his (Hesrick's) glasses and he showed them a bruise around his eye, but he also admitted that the altercation had taken place several days earlier. Hesrick confirmed that Hoffman had been staying at the house “off and on for quite some time,” and said that he wanted the officers to remove Hoffman from his house. The officers explained to Hesrick the legal process of eviction, and Hesrick stated that he would take care of that the next morning.
While Hesrick stood in the doorway to the house, the officers went outside and spoke to Hoffman again, telling him that Hesrick wanted to evict him. Hoffman responded that he had already made arrangements to leave the house, but then told the officers that “things were much more serious than ... what [the officers] were called for that day.” When asked what he meant, Hoffman said that, earlier that day, he had seen Hesrick looking at child pornography on his computer, that he had told Hesrick that the pictures were illegal, and that an argument had ensued, leading to a fight. Hoffman told the officers that Hesrick had “gotten in trouble with child pornography in Chicago” before he moved to Savannah. Hoffman also told the officers that, when Hesrick learned that he had called the police, Hesrick removed the computer's external hard drive and put it in a shed in the backyard. Hoffman then warned the officers that, if they asked Hesrick about the child pornography, Hesrick would destroy the evidence.
At some point while the officers were talking to Hoffman, Hesrick retreated back into the house and locked the front door. After hearing Hoffman's allegations about the child pornography, the officers decided to talk to Hesrick again and knocked on the front door. After a few minutes, Hesrick opened the door and let the officers inside the front room, and the officers asked Hesrick where he was from. According to one officer, Hesrick immediately became “pissed off” and said that he was from Chicago. The officers then asked Hesrick if he had child pornography on his computer. Hesrick asked the officers what constituted child pornography, and the officers explained that it would be images of children under the age of 18 in “explicit acts, without clothing.” According to the officers, Hesrick stated that “he did have that on his computer” and that he had been looking at it. When asked if he would show them the pictures, however, Hesrick responded that he did not know what material they were talking about and that they would need a search warrant to find out any further information.
At that point, one of the officers contacted a sergeant with the Special Victims Unit, explained the situation, and asked for guidance, and the sergeant told him to seize all of the computers and other media that were in plain view due to the possibility that Hesrick was going to destroy the evidence. The officers seized a laptop computer that they saw in the corner, as well as a desktop computer that was in another room, and locked them in their patrol car. The officers walked through the house looking for any other computer equipment that was sitting in plain view, but they found nothing. Although one of the officers also looked inside the door to the backyard shed, he did not see an external hard drive. When the officers asked Hesrick about the external hard drive, he denied having one. Hesrick then told the officers that, before they were able to get a search warrant to look for additional evidence, he would destroy the evidence.
On December 2, 2008, a detective with the police department's Special Victim's Unit obtained a search warrant for Hesrick's house.1 The search warrant authorized the seizure of “All DIGITAL Data storage devices to include COMPUTER HARD DRIVES, USB drive, digital cameras, video cameras, storage cards, tapes and computer disks (DVD's, CD's, FLOPPY DISKS) that may store data on them[ ] which is tangible evidence of the crime of Sexual [ ] Exploitation of Minors[,] OCGA [§ ] 16–12–100.” The detective and other officers executed the search warrant on December 3. While the other officers were searching the house, Hesrick told the detective that he had “got[ten] rid of” the external hard drive, but could not remember where he had taken it. Hesrick also volunteered that he had started collecting child pornography 40 years earlier, but had now decided to “get rid of it” because “society ... didn't accept it.” During the conversation, another officer approached and asked Hesrick...
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