Holzheuser v. State, A19A0757

CourtGeorgia Court of Appeals
Writing for the CourtDoyle, Presiding Judge.
Citation828 S.E.2d 664
Decision Date12 June 2019
Docket NumberA19A0757

828 S.E.2d 664



Court of Appeals of Georgia.

June 12, 2019
Reconsideration Denied July 1, 2019

828 S.E.2d 666

Noah Howard Pines, Atlanta, Andrew Santos Fleischman, for Appellant.

Jacquelyn Lee Johnson, Thomas Edward Buscem, for Appellee.

Doyle, Presiding Judge.

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 evidence based on the contents of his phone, (b) the admission of his recorded confession to police, and (c) the failure to request a downward deviation from mandatory sentencing under OCGA § 17-10-6.2 ; and (2) the trial court erred by admitting certain similar transaction evidence pursuant to OCGA § 24-4-414. For the reasons that follow, we affirm.

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

828 S.E.2d 667

Boswell and police detective Brian Allgood. Boswell read Holzheuser a form titled "Military Suspect’s Acknowledgment and Waiver of Rights." Boswell read the form to Holzheuser, who signed the waiver acknowledging: that he was suspected of committing indecent exposure, that he had a right to remain silent and not answer any questions, that any statements could be used against him in a court martial or other trial, that he could have an attorney present, that he could terminate the interview at any time, and that he was free to leave at any time. After Holzheuser signed the waiver, the interview began, and Holzheuser ultimately admitted that he exposed himself to a minor at the home improvement store. He also admitted that he had viewed child pornography, and "I know that there is child pornography on my phone. ... I’m not going to deny that there have been single[-]digit [age] children on my phone."

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 notes on his phone and related 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 OCGA § 17-10-6.2.

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 and phone notes . 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

828 S.E.2d 668

resource locators ("URLs"10 ) and searches with term "little girls" in them. Boswell further explained that he entered the search terms and URLs on a dedicated investigative computer and printed out screen shots of the results, including a small number of "representative images" he selected independently. There was also at least one suggestive website URL saved in Holzheuser’s note-taking application, and Boswell printed out screen shots of the results when he visited that website as part of the investigation.

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 and notes 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 Federal Rule of Evidence 901, which states that "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is."12

The applicable rule in Georgia is OCGA § 24-9-901 (a) : "The requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." This can be shown by "[t]estimony of a witness with knowledge that a matter is what it is claimed to be,"13 or by a document’s "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances."14 Thus, there is no bright line rule specifically requiring the use of an Internet archive, and based on Boswell’s testimony — that the screen shots accurately depicted the images Boswell viewed and printed out, not that they had been viewed by Holzheuser at a particular time — Holzheuser’s argument fails as to an authenticity objection regarding those documents.15 To the extent that Holzheuser argues that the information on his phone could have been the product of a different person’s use of his phone without his knowledge or permission, this argument goes to weight, not authenticity.16 There was no dispute that the notes were found on Holzheuser’s personal cell phone, Boswell personally authenticated them as such, and Holzheuser admitted to

828 S.E.2d 669

using his phone to view child pornography.17 The admission of evidence is reviewed only for an abuse of the trial court’s...

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