Maddox v. State

• Decision Date: 27 June 2018
• Docket Number: A18A0659
• Citation: 816 S.E.2d 796,346 Ga.App. 674
• Court: Georgia Court of Appeals
• Parties: MADDOX v. The STATE.

346 Ga.App. 674

816 S.E.2d 796

MADDOX

v.The STATE.

A18A0659

Court of Appeals of Georgia.

June 27, 2018

Ray Burke Gary Jr., Marietta, for Appellant

D. Victor Reynolds, District Attorney, Michael S. Carlson, John R. Edwards, Assistant District Attorneys, for Appellee

Gobeil, Judge.

Following a bench trial in Cobb County Superior Court, James Maddox was convicted of two counts of distributing child pornography and two counts of possessing child pornography. Maddox now appeals from the denial of his motion for a new trial, arguing that the trial court erred in admitting a written document provided police by Maddox's Internet service provider ("ISP") in response to a subpoena. He further contends that in the absence of that document, the evidence was insufficient to convict him of distributing child pornography. Additionally, Maddox claims that even if the subpoenaed document was admissible, the evidence failed to prove that he distributed child pornography and the trial court therefore erred in denying his motion for a directed verdict on the distribution charges. And Maddox also asserts that the trial court erred in denying his motion to suppress: (1) the subscriber information obtained through an allegedly illegal subpoena served on his ISP; (2) evidence obtained during a search of Maddox's residence pursuant to a warrant; and (3) incriminating statements Maddox made during his initial police interview. For reasons explained below, we find no error and affirm.

"On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict." Marriott v. State , 320 Ga. App. 58, 58, 739 S.E.2d 68 (2013). So viewed, the record shows that this case involves the distribution of child pornography through a peer-to-peer file sharing program, which represents a commonly used method of obtaining and sharing child pornography. Such programs allow the sharing of digital media and documents between computers. One of these peer-to-peer programs, known as ARES, is available for any member of the public to download from the Internet. When ARES downloads, it automatically installs on the user's desktop a folder that is identified as "My Shared Folder." Other ARES users are then able to access, view, and download any document or digital media stored in the shared folder of another ARES user.¹ Additionally, when an ARES user downloads information from the shared folder of another ARES computer, the items downloaded will automatically be stored in the user's shared folder. If a user wants to prevent downloaded items from being accessed and downloaded by others, he or she can move those files out of the shared folder, delete the files, disconnect his or her computer from the Internet, or uninstall the peer-to-peer file sharing program.

Once a person has downloaded the ARES program, he or she can use it to search for specific terms. The program will then compile a list of other ARES users whose shared folders contain filenames that include one or more of those search terms. The user then has the ability to download those "matching" files, which will automatically be stored in his or her computer's shared file folder.²

In or about May 2013, the Cobb County Police Department was investigating the ARES peer-to-peer file sharing program to determine if anyone in Cobb County was distributing child pornography using the ARES network. The Cobb County Police Department ran on one of its secure computers a program called Round Up ARES ("RU-ARES"). The program searched other ARES computers for terms associated with child pornography.³ The RU-ARES program also ran a search for videos and pictures using a secure hash algorithm, also known as an SHA-1. Based on the number and arrangement of pixels, every video and picture has a specific SHA-1 value. Thus, the RU-ARES program in this case searched for the SHA-1 values of specific images and videos known to contain child pornography. Additionally, the search was limited to IP addresses that were potentially located in Cobb County.

On May 22, 2013, the RU-ARES program running on the police department's computer identified an IP address in Cobb County as having six shared files that contained possible child pornography. Three files were downloaded to the police department computer from that IP address on May 22, a fourth file downloaded on May 23, and a fifth file downloaded on May 29. Sergeant Raymond Drew of the Cobb County Police Department⁴ reviewed those files after they were downloaded and determined that each of them contained what appeared to be child pornography. Working with a crime analyst, Drew learned that the ISP for the IP address in question was Comcast. Drew then prepared a grand jury subpoena for Comcast asking it to produce the subscriber name, physical address, and other identifying information for the IP address in question. The subpoena was served on Comcast and the ISP provided law enforcement with information showing that the account in question belonged to Maddox and that the bills went to a residential address in Marietta.

Upon learning that the computer using the IP address was associated with a residence inside the Marietta city limits, Drew provided all of the information regarding the investigation to Detective Mark Erion with the City of Marietta Police Department. The information provided to Erion included Maddox's subscriber information and a copy of the downloaded files. After determining that Maddox lived at the residential address in question, Erion obtained a search warrant for that residence. During the execution of the search warrant, police located three computers, including a Dell desktop and a Dell laptop, both of which belonged to Maddox.

At the time the search warrant was executed, Maddox agreed to talk with police and an audio recording of this interview was admitted and played at trial. During that interview, Maddox, who had majored in computer science, told police that he had downloaded the ARES software so that he could obtain pornography from the Internet. Maddox explained that any pornographic files he downloaded went to the "My Shared Folder" on his desktop, and that he was the only person who had downloaded anything to his computers. Additionally, Maddox admitted that he located the titles of and previewed the pornographic files before downloading them, and he admitted to downloading all of the files subsequently obtained by the State using RU-ARES. Maddox further admitted that he was aware that child pornography videos were in his shared folder, but stated that he was drunk at the time he downloaded them.

Police obtained a search warrant for Maddox's computers, and a forensic examination of those computers showed the presence of child pornography on both the desktop and the laptop. The desktop contained a total of 19 videos containing child pornography, including the five videos transferred to the State's computer during the RU-ARES search. A shared folder on the laptop held approximately 13 videos containing what appeared to be child pornography.

Maddox was indicted on five counts of distributing child pornography based on the five videos in his desktop's "My Shared Folder" that were downloaded to the State's computer. He was also indicted on two counts of possessing child pornography, based on a video and an image found on his laptop. Prior to trial, Maddox moved to suppress the subscriber information provided by Comcast, the search warrants for Maddox's residence and his computers, and Maddox's incriminating statements made during his police interview. Following a full evidentiary hearing, the trial court denied that motion. The case then proceeded to a bench trial at which the court found Maddox guilty of two counts of distributing child pornography and two counts of possessing child pornography, but acquitted him of the three remaining distribution charges.⁵ The trial court subsequently denied Maddox's motion for a new trial, and Maddox now brings this appeal.

1. In response to the subpoena requesting Comcast to provide subscriber information related to the IP address from which police downloaded pornographic videos, Comcast provided a written document containing the requested information. When the State introduced this document into evidence at trial, defense counsel objected "on the grounds that it's not the best evidence. [It's] a facsimile transmittal.... [A]nd it's hearsay as well. And I ... object to it on the previous Fourth Amendment grounds [asserted] in the motion to suppress." The trial court overruled the objection and allowed the State to introduce the document under OCGA § 24-8-803 (6) (‘‘Rule 803 (6)’’) as a business record. Maddox challenges this ruling on appeal.

Georgia Rule of Evidence 803 (6) provides that the following shall be admissible as an exception to the hearsay rule:

Records of regularly conducted activity. Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness ... a memorandum, report, record, or data compilation, in any form , of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24-9-902 ...

OCGA § 24-8-803 (6) (emphasis supplied).

Here, the State used an OCGA § 24-9-902 (11) (‘‘Rule 902 (11)’’)⁶ certification for the Comcast document. Specifically, attached to the document was a "Business Record...