New v. State
| Decision Date | 10 April 2014 |
| Docket Number | No. A13A2391.,A13A2391. |
| Court | Georgia Court of Appeals |
| Parties | NEW v. The STATE. |
OPINION TEXT STARTS HERE
Jacobs & King, Sanford Allen Wallack, Atlanta, Scott Richard King, for Appellant.
Scott L. Ballard, Dist. Atty., Jeremy Mathew Hayes, Robert Wright Smith, Jr., Asst. Dist. Attys., for Appellee.
Following a trial by jury, Matthew Anthony New was convicted on thirty-five counts of sexual exploitation of children, two counts of child molestation, and one count of enticing a child for indecent purposes. On appeal from these convictions, New contends that (1) the evidence was insufficient as to his convictions for sexual exploitation of children; (2) the trial court erred by admitting improper evidence; (3) he received ineffective assistance of counsel; (4) the trial court erred in denying his motion to suppress evidence; and (5) his sentence is void. Because we agree with New that his sentence is void, we vacate his sentence and remand the case to the trial court for resentencing, but we affirm in all other respects.
Viewed in the light most favorable to the jury's guilty verdict,1 the record reflects that in February 2010, New—a former police officer—was living in an apartment attached to his mother's home when his ex-wife and three children paid a visit to spend time with an ailing family pet. During the course of this visit, a disagreement arose between New and his middle child, B.N. And following that altercation, B.N. called the police to report an incident that occurred when he lived with his father some three years earlier.
According to B.N., he was 14 years old during the period in question and there came an evening when his 13–year–old girlfriend, T.P., visited the apartment B.N. shared with his father. During that evening, New encouraged B.N. and T.P. to engage in what he called “strip wrestling,” explaining that the participants wrestle each other to the point of complete undress. New observed the event and photographed the minors as their clothes were removed down to their underwear, with T.P.'s bra being removed at one point.
And after the “strip wrestling” game concluded, New pulled B.N. aside and encouraged him to engage in sexual intercourse with T.P. in B.N.'s bedroom. New also set up a hidden video camera in B.N.'s bedroom under the suggestion that it would protect his son against any allegation of rape. Nevertheless, before engaging in sexual conduct with T.P., B.N. turned off the camera when New left the room.
Upon the report to law enforcement (which was made while B.N. was visiting his grandmother's home), an investigation ensued as officers arrived to speak with New at his attached apartment. During the investigation, officers searched for any items that could hold digital media, seizing a computer from New's residence. A forensic analysis of the computer revealed images depicting the “strip wrestling” incident as described by B.N. and T.P. Additionally, the same forensic search uncovered numerous images of child pornography. New was subsequently indicted for the offenses enumerated supra and convicted after a trial by jury. This appeal follows.
At the outset, we note that on appeal from a criminal conviction, “we view the evidence in the light most favorable to the jury's verdict, and the defendant is no longer presumed innocent.” 2 And in evaluating the sufficiency of the evidence, we do not weigh the evidence or assess witness credibility, but only determine “if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt.” 3 Accordingly, the jury's verdict will be upheld so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State's case.” 4 With these guiding principles in mind, we turn now to New's enumerations of error.
1. First, New contends that the evidence was insufficient to support a guilty verdict as to the thirty-five counts of sexual exploitation of children related to images of child pornography discovered on his computer.5 Specifically, he argues that, based on the location of the recovered images on his hard drive, the State failed to prove that he knowingly possessed images of child pornography.
A person commits the offense of sexual exploitation of children in the manner for which New was convicted when he or she knowingly possesses “any material which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct.” 6 Specifically, New was indicted for sexual exploitation of children in that,
New was so indicted after images of child pornography were discovered on his computer during law enforcement's search for digital photographs of the “strip wrestling” incident. A GBI computer forensics expert examined the hard drive of New's computer and testified to discovering both the “strip wrestling” pictures and the images of child pornography as “shadow copies” in the computer's system volume information.8 According to the GBI expert, the system volume file creates daily file/data backups, in the form of shadow copies, to allow for restoration to previous file versions, although New's edition of the Windows Vista operating system did not permit user restoration to previous versions.9 The images at issue were located in shadow copy volumes “that existed in January of 2010,” meaning that the images were backed up in January 2010.
With regard to computer usage, the GBI specialist testified that only one Windows-operating-system user account (or profile) was consistently utilized on the computer's hard drive, and that user account/profile was named “Matt.” The system also had one guest account/profile that had last been used on December 15, 2007, and another guest account/profile that had never been used.10
While searching the computer, the GBI specialist discovered several user-installed software programs that could “clean” or “wipe” data from the computer's hard drive and erase, inter alia, Internet search history. One particular program was configured to conduct three “wipes” of the hard drive, which included removing deleted files from unallocated disk space 11 and altering the content of file data by “wip[ing] it with zeros” or “chang [ing] those letters so that that code is gone.” The last system “wipe” occurred on December 16, 2009.
In addition to deletion software, the computer also contained LimeWire, a peer-to-peer file-sharing program from which the GBI specialist obtained log files. These logs identified files that were contained in the shared folder for the username “Matt,” what files were downloaded, and recent downloads. In the GBI specialist's expert opinion, the LimeWire log files indicated image and movie file names that were “likely to be associated with child pornography” downloaded to the user's shared folder.
With regard to the child-pornography images discovered on New's computer, the GBI specialist testified that, due to the images' location on the hard drive and missing metadata,12 she could not definitively say that the images came from LimeWire because the shadow copies did not maintain file names that she could link to the LimeWire log. The child pornography images could only be associated with a hash value, which amounts to a long string of letters and numbers that is unique to a given image.13 Accordingly, the GBI specialist could not determine whether the child pornography had only been viewed on a web page or whether the computer user downloaded it to the computer; however, she opined that it was likely that the files were downloaded to the computer based on the LimeWire log files' inclusion of file names that were likely to be associated with child pornography.
On appeal, New cites to Barton v. State14 in support of his argument that because the G.B.I. computer forensics expert could not determine whether the shadow copy images were the result of downloads or were merely viewed on a website and automatically saved to the computer, there is insufficient evidence to sustain his convictions. We disagree.
In Barton, the defendant was indicted, and subsequently convicted, for knowing possession of child pornography after more than one hundred images were located in his computer hard drive's cache of temporary Internet files. 15 There, we held that
the mere existence of pornographic images in the cache files of an individual's computer is insufficient to constitute knowing possession of those materials absent proof that the individual either: (1) took some affirmative action to save or download those images to his computer; or (2) had knowledge that the computer automatically saved those files. 16
Despite the complexity involved in determining exactly when a person is knowingly in “possession or control” of child pornography transmitted electronically, the bottom line is relatively straightforward: Was the evidence presented sufficient to sustain the conviction? In the case sub judice, unlike in Barton, the evidence was more than sufficient to sustain the conviction. In Barton, we concluded that evidence of the temporary Internet cache files alone was not sufficient to sustain the conviction under OCGA § 16–12–100(b)(8) because there was insufficient evidence to prove knowing possession of the files themselves.17Barton makes no mention whatsoeverof any other evidence presented by the State, which we understand to mean that the temporary Internet files represented the State's sole evidence,18 and Barton therefore narrowly approached the question in terms of present possession 19 of...
To continue reading
Request your trial
- Hill v. State
- Tucker v. Tucker
- McAllister v. State, A19A0613
- Gerbert v. State