State v. Al-Khayyal
| Decision Date | 09 July 2013 |
| Docket Number | No. A13A0623.,A13A0623. |
| Citation | 322 Ga.App. 718,744 S.E.2d 885 |
| Parties | The STATE v. AL–KHAYYAL. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Samuel S. Olens, Atty. Gen., Laura D. Pfister, Nels Stefan David Peterson, for appellant.
Alston & Bird, Michael Lawrence Brown, Atlanta, Angela Adams, for appellee.
The State indicted Faiz Al–Khayyal on 49 counts of sexual exploitation of children in violation of OCGA § 16–12–100(b)(8), based upon allegations that he possessed and controlled child pornography in the form of digital files on his laptop computer. The Superior Court of Clayton County sustained Al–Khayyal's plea in bar and granted his motion to dismiss the indictment for lack of venue, finding that, although Al–Khayyal possessed the computer in Clayton County, he had deleted the digital files before he entered the county and could no longer access the illegal images, and, therefore, that there was no evidence that he committed the offenses as alleged in the indictment. The State appeals this ruling, in part, as to Counts 30 through 49.1 For the reasons explained below, we reverse in part.
The following facts are undisputed. In 2009, while Al–Khayyal, a professor at the Georgia Institute of Technology, was abroad teaching in China, he became the target of an investigation into child pornography. When he returned to the United States on August 5, 2009, bringing his laptop computer, immigration control officers detained him in the Atlanta airport (in Clayton County) and seized that computer. A forensic computer specialist for the Georgia Bureau of Investigation conducted a forensic examination of the computer, using specialized forensic software, and discovered 29 digital files that contained sexually explicit images of young girls. The files had been placed in the computer's trash folder, which had then been emptied, so that the files were permanently deleted or “double-deleted” and inaccessible to the user. 2 A subsequent examination of the computer yielded 20 additional files that had been “deleted” but remained saved in the trash folder.3 Those files were in a compressed “.rar” format, and the images contained in the files could be viewed only with an “uncompressing” or “unzipping” program that at that time was not loaded on the computer. A different unzipping program, however, was loaded on the computer, and the computer's history files showed that the software had been used, though not on the files at issue in this case. In addition, the computer specialist testified that the software required to access the .rar files is readily available to the public and can be used without special training. When the computer specialist used the required software to “rebuild” the .rar files in the trash folder, she found that the files also contained sexually explicit images of young girls.
The State indicted Al–Khayyal on 49 counts of violating OCGA § 16–12–100(b)(8).4 Each count alleges that Al–Khayyal,
in the State of Georgia and County of Clayton, on or about August 5, 2009, did knowingly possess and control material, to wit: a digital file located on a Toshiba laptop and labeled[, giving the file name of one of the 49 digital files recovered from his computer], which depicts a minor engaged in sexually explicit conduct, to wit: [describing the conduct depicted in the specified file].
Counts 1 through 29 concern the double-deleted files; Counts 30 through 49 concern the single-deleted .rar files.
Al–Khayyal filed a plea in bar and motion to dismiss the indictment, arguing that, regardless whether he possessed and controlled the files at one time, he did not do so in Clayton County and, therefore, that the prosecution was barred for lack of venue.5 After an evidentiary hearing, the trial court sustained the plea in bar and granted the motion to dismiss, finding that there was no evidence that Al–Khayyal was in knowing possession and control of the images in Clayton County.
The State appeals this ruling only as to Counts 30 through 49, which concern the single-deleted .rar files.6 The State contends that, for purposes of Al–Khayyal's plea in bar and motion, the evidence establishes that he possessed his computer in Clayton County at a time when the subject .rar files were present on the computer's hard drive. In addition,the State contends that the evidence establishes that, although the subject files were then assigned to Al–Khayyal's computer's trash folder, he could have accessed the files and viewed the contraband images after downloading software that was readily available to the public. Further, the State contends that the evidence supports an inference that Al–Khayyal knew that the files were present on his computer and that he could later access them. Because questions concerning Al–Khayyal's knowledge and intent are for the jury to decide, the State contends that, under the circumstances presented, the trial court erred in sustaining Al–Khayyal's plea in bar and granting his motion to dismiss the indictment.
Al–Khayyal contends, on the other hand, that the trial court's ruling was correct because, while he was in Clayton County, he lacked the ability to access the illegal images stored on his computer. He contends that contraband that is in the form of electronic data “can only be thrown away in one way—[by] rendering it inaccessible on the computer” on which the data is stored. He contends that, before entering Clayton County, he had done “everything he could to discard the [illegal] images and terminate his possession” and that the steps he had taken before he returned to the United States did, in fact, render the subject files “totally inaccessible.” Based on this, he contends that the trial court correctly determined that, as a matter of law, he was not in knowing possession or control of the contraband in that venue. We apply a de novo standard of review to the trial court's ruling on Al–Khayyal's plea in bar and motion to dismiss the indictment for improper venue.7
Under Georgia law, a person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. In any criminal prosecution for possession, therefore, the State must prove that the defendant was aware he possessed the contraband at issue.
(Citation and punctuation omitted.) Barton v. State, 286 Ga.App. 49, 52(1), 648 S.E.2d 660 (2007). “Both knowledge and possession may be proved, like any other fact, by circumstantial evidence.” (Citation and punctuation omitted.) Hunt v. State, 303 Ga.App. 855, 858(2), 695 S.E.2d 53 (2010). Further, “[a]s long as there is slight evidence of access, power, and intention to exercise control or dominion over an instrumentality, the question of fact regarding constructive possession remains within the domain of the trier of fact.” (Citation and punctuation omitted.) Id.
The common thread in child pornography laws is the visual depiction of minors engaged in sexually explicit conduct.8 Although the iconic example of child pornography may be a photograph, where the illegal image is fixed in a tangible form, child pornography presents special issues in contemporary times because technology allows images to be ephemerally generated from data stored in a variety of media.9 Georgia law in the arena of child pornography has evolved to reflect the impact of technology. Some offenses are narrowly drawn to prohibit specifiedconduct involving a “visual medium” 10 or “visual or printed matter” 11 which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct. The offense at issue in this case, on the other hand, is more broadly drawn to prohibit possession or control of “any material” which depicts such an image. OCGA § 16–12–100(b)(8).12 Georgia's appellate courts have upheld convictions under this subsection in cases based on the defendant's possession of a videotape,13 a compact disc,14 a DVD,15 or a USB flash drive 16 that contained prohibited content. Thus, in these storage media cases, evidence that a defendant possessed data capable of generating images of a minor engaged in sexually explicit conduct authorized the jury to find that the defendant possessed prohibited “material” even though actually viewing the prohibited images would require the use of a machine or electronic device (a videocassette player, a computer equipped with particular software, etc.).17 In this case, it is undisputed that Al–Khayyal physically possessed a computer that served as the storage medium for data files capable of generating visual depictions of minors engaged in sexually explicit conduct.
Despite his undisputed physical possession of the computer in Clayton County, Al–Khayyal contends that the State cannot prove that he possessed the contraband at issue in that venue because, while he was in the county, he lacked the ability to access the illegal images stored on his computer. He relies in part on evidence that the software required to view the prohibited visual depictions was not loaded on his computer at the same time. We find no support in Georgia law, however, for the proposition that possession of prohibited material under OCGA § 16–12–100(b)(8) exists only in conjunction with the defendant's present ability to view illegal visual depictions, especially given the evidence that the needed software was readily available to the public. See Veats v. State, 300 Ga.App. 600, 602(1), 685 S.E.2d 416 (2009) ().18
Finally, we turn to Al–Khayyal's argument that the evidence precludes the requisitefinding that he possessed the contraband at issue knowi...
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