Patch v. State

• Decision Date: 26 May 2016
• Docket Number: A16A0524
• Citation: 786 S.E.2d 882,337 Ga.App. 233
• Parties: Patch v. The State.
• Court: Georgia Court of Appeals

337 Ga.App. 233

786 S.E.2d 882

Patch

v.The State.

A16A0524

Court of Appeals of Georgia.

May 26, 2016

Sharon Lee Hopkins, Duluth, for Appellant.

Jon Wesley Setzer, Asst. Dist. Atty., Daniel J. Porter, Dist. Atty., Lawrenceville, for Appellee.

Dillard

, Judge.

Phillip Preston Patch appeals his convictions for three counts of computer or electronic pornography and child exploitation, arguing that the evidence was insufficient to support his convictions and that the trial court erred by admitting identification testimony of an investigating officer based solely on his observations of photographs and webcam videos that were unavailable to the jury. For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the jury's guilty verdict,¹ the record shows that, in 2010, Stephen Land—who was, at that time, a corporal with the Gwinnett County Police Department's Special Victims Unit—created an online profile of a young girl for use in his investigations of Internet crimes against children. Specifically, relevant to this case, Land created a Yahoo! account with the username “roxiechick14,” which included a cartoon avatar of a young female to suggest that the user was a 14–year–old girl. Land also added images to the account of a 19 or 20–year–old female employee of the police department, who looked much younger than her age, and the profile indicated that her name was “Rhonda.” Next, Land used the account to log into an internet chat room designated for users located in Georgia, and he waited for other users to initiate a one-on-one chat with him. In conducting his investigation, Land used software that recorded everything occurring on his screen while he was using the roxiechick14 account.

On July 23, 2010, an individual with the username “heeeyyy_waitaminute” (the “suspect”) initiated a chat with Land, who was using the roxiechick14 account, and subsequently, they had additional chats on August 16, 2010; September 20, 2010; and October 18, 2010. During the first conversation, the suspect initiated the interaction with Land by sending a message to roxiechick14 that said, “hey girl,” and Land responded, “hey.” Early in the conversation, the suspect asked roxiechick14 for her age, and Land responded that she was 14. And later, roxiechick14 confirmed her age again when Land responded to a question by saying, “[b]ecause I'm 14.” The conversation continued and eventually the suspect began asking roxiechick14 what she was wearing, including whether she was wearing a “bra and panties.” The suspect also inquired into “what's the most [she had] done with a guy,” and Land responded, “um, kissing and some touching, but not really.” The sexual tenor of the conversation then began to escalate with the suspect asking, inter alia , if he could “touch [her] ass,” whether she was “wet at all,” whether she “wanted [him] inside where it's wet,” “what size are [her] tits,” and whether she wanted his “cock.” After they had been messaging for a while, the suspect asked roxiechick14 whether she wanted to watch him masturbate, and he sent her an invitation to view him on a webcam. Land accepted the invitation and was then able to view the suspect's “naked penis.”

Over the next few months, Land—still using the roxiechick14 account—continued to have online conversations of a sexual nature with the suspect, and on at least two occasions, the suspect “masturbat[ed] his naked, erect penis” on the webcam for the apparent 14–year–old girl to view. But Land was never able to see the suspect's face on the webcam. Eventually, Land subpoenaed Yahoo! to produce any information it had on the heeeyyy_waitaminute account, including any IP addresses used and identifying information about the user. Yahoo!'s response revealed that the suspect's account was associated with the name “Preston Patch” and an address in Lawrenceville, Georgia. Next, Land requested information from Patch's Internet-service provider regarding the IP address that the suspect's computer had used on the dates and times when heeeyyy_waitaminute chatted with roxiechick14, and he discovered that the IP address was accessed from 1843 Guardian Way in Lawrenceville (the “Guardian Way residence”). Land also learned that Chris Stephens, Patch's roommate, was the account holder for that address.

In addition to the foregoing investigative efforts, Land searched the police department's internal records and located Patch's driver's license, as well as a photograph of him. Then, after confirming Patch's address, Land applied for and obtained a search warrant for the Guardian Way residence. On November 18, 2010, Land executed the search warrant and seized Patch's computer. The computer was thereafter sent to the police department's computer forensics lab to be examined. And during the examination, the technician extracted files from Patch's computer containing Land's username, roxiechick14.

Thereafter, Patch was charged, via indictment, with three counts of computer or electronic pornography and child exploitation. And following a jury trial, Patch was convicted on all counts. Patch then filed a motion for a new trial, which the trial court denied after a hearing. This appeal follows.

1. On appeal, Patch first argues that the evidence was insufficient to support his convictions. We disagree.

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 when 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 Finally, 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 Patch's specific challenge to the sufficiency of the evidence to support his convictions.

In relevant part, OCGA § 16–12–100.2 (d) (1)

provides:

It shall be unlawful for any person intentionally or willfully to utilize a computer wireless service or Internet service, including, but not limited to, a local bulletin board service, Internet chat room, e-mail, instant messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child [or] another person believed by such person to be a child ... to commit any illegal act by, with, or against a child as described in ... Code Section 16–6–4

, relating to the offense of child molestation or aggravated child molestation; Code Section 16–6–5, relating to the offense of enticing a child for indecent purposes; or Code Section 16–6–8, relating to the offense of public indecency, or to engage in any conduct that by its nature is an unlawful sexual offense against a child.

And OCGA § 16–12–100.2 (b)(1)

defines “child” to mean “any person under the age of 16 years.”

As to the indictment in this case, it alleged in three separate counts that Patch violated OCGA § 16–12–100.2 (d) (1)

on July 23, 2010; August 16, 2010; and September 20, 2010, by

unlawfully intentionally us[ing] an internet service and an internet chat room and an electronic device, to attempt to seduce, solicit, lure and entice another person, to wit: Gwinnett County Police Officer S. J. Land, who accused believed to be a child under the age of 16, to engage in unlawful sexual conduct, contrary to the laws of said State, the peace, good order[,] and dignity thereof.

On appeal, Patch does not contend that the State failed to prove any essential element of his charged offenses, but instead, he claims that there was insufficient evidence to establish that he was the perpetrator.⁵ Specifically, Patch contends that the only “visual identification evidence” was the testimony of Richard Peluso, a retired Cobb County police sergeant who investigated him in a similar case in 2008, and he argues that Peluso's in-court identification of him in this case was inadmissable.⁶ Patch further asserts that, while there was evidence that his username was used in the chats with roxiechick14, no evidence established who was on the computer at the time of the chats, and even though “multiple people” had access to his computer, investigators never met or interviewed any of those individuals.

But here, even discounting Peluso's in-court identification of Patch, there was ample evidence to support a jury finding that he was the perpetrator, including his own incriminating statements to police. It is well settled that circumstantial evidence of identity “may be sufficient to enable a rational trier of fact to find a defendant guilty beyond a reasonable doubt.”⁷ Moreover, circumstantial evidence of a defendant's identity “need not exclude every conceivable inference or hypothesis—only those that are reasonable.”⁸ And importantly, to set aside the conviction, “it is not sufficient that the circumstantial evidence show that the act might by bare possibility have been done by somebody else.”⁹

And here, in his pretrial interviews with Land, which were played for the jury, Patch admitted the following: (1) heeeyyy_waitaminute was his username, and he had used it for two or three years; (2) as far as he knows, no one else uses his account; (3) his roommate would not use his computer; (4) he was the person in the pictures that were sent to roxiechick14; (5) he masturbates on his webcam two or three times a month; and (6) he chats with females online who are as young as 15 years old. More significantly, Patch expressly admitted that it was “safe to say” that he was the person chatting with roxiechick14 on the relevant dates, that it was his penis shown on the webcam, and that no one else ever used his computer.

Although Patch changed his story at trial, denying that he committed the charged offenses and...