State v. Palacio-Gregorio

• Decision Date: 16 September 2021
• Docket Number: A21A0801,A21A0800
• Parties: THE STATE v. PALACIO-GREGORIO PALACIO-GREGORIO; v. THE STATE
• Court: Georgia Court of Appeals

THE STATE v. PALACIO-GREGORIO

PALACIO-GREGORIO; v. THE STATE

Nos. A21A0800, A21A0801

Court of Appeals of Georgia, Fifth Division

September 16, 2021

RICKMAN, C. J., MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

RICKMAN, Chief Judge

Following a jury trial, Leandro Palacio-Gregorio was convicted on five counts of sexual exploitation of children. Palacio-Gregorio filed a timely motion for new trial. The trial court denied Palacio-Gregorio's motion for new trial, but determined that it erred by failing to merge his convictions for the purposes of sentencing and vacated his sentence on the first four counts of the indictment. In A21A0801, Palacio-Gregorio appeals from the denial of his motion for new trial and contends that the evidence was insufficient to support his conviction, the trial court erred by admitting certain evidence, and his trial counsel provided ineffective assistance. In A21A0800, the State appeals from the re-sentencing and contends that the trial court erred by vacating Palacio-Gregorio's sentences on counts 1 through 4. For the following reasons, we affirm in both cases.

"On appeal from a criminal conviction, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility, and the evidence is viewed in the light most favorable to support the verdict with the defendant no longer benefitting from a presumption of innocence." (Citation and punctuation omitted.) Sorg v. State, 324 Ga.App. 595, 595 (751 S.E.2d 196) (2013). "The standard under Jackson v Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), is whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense." Id.

So viewed, the evidence showed that one evening after midnight a law enforcement officer was patrolling a high crime area near a hotel. The law enforcement officer observed Palacio-Gregorio sitting in the driver's seat of a parked car in the hotel's parking lot. Palacio-Gregorio's car was running with its headlights off. As the officer approached the driver's side, he observed Palacio-Gregorio looking at what initially appeared to be pornography depicting adult women. Upon closer examination the officer realized that the image on Palacio-Gregorio's screen depicted a pre-pubescent girl.

The officer shined a flashlight in Palacio-Gregorio's window and observed Palacio-Gregorio take "the [phone he viewed child pornography on] and sort of put it between the console and the passenger seat. It wasn't a large console but it is the console that runs in most vehicles and pushed it down like between the seats partially there." Palacio-Gregorio then rolled down his window and told the officer that he became tired while driving and stopped at the hotel to sleep. Palacio-Gregorio informed the officer of his route and the officer noted that the location of the hotel was not on his route.

When asked what he was doing on the cell phone, Palacio-Gregorio responded that "he was looking at videos." Palacio-Gregorio granted the officer consent to search the vehicle. According to the officer, he

went to where [Palacio-Gregorio] had placed the phone. The screen was actually on.... I looked at that phone and could see that it was on a Google Incognito on the browser. On that page there was a picture of a very young girl with her legs spread, her vagina exposed. She had underdeveloped breasts, no pubic hair and a face that I would imagine she was no more than seven, eight, nine years old.

The officer testified that Google Incognito was a mode on the Google web browser that enabled the user to view websites without any history of what was viewed, "[a]ll the cookies and everything are immediately erased as soon as the phone is closed out of the browser." There was also a notification on the recovered phone that there were downloads on the phone, some of which had been downloaded and others which were downloading at the time of retrieval. After arresting Palacio-Gregorio, the officer searched him incident to arrest and found another cell phone in his pocket. Both phones were placed into evidence.

The phone on which Palacio-Gregorio viewed child pornography on was forensically examined and contained five images of child pornography located in the downloads folder of the S.D. card within the phone. The officer who performed the forensic examination testified that "[i]n order for the image to reside in the downloads section or on the S.D. card, you have to actually save it. You have to save the data to that location or you have to give permission for the operating system to download to that location." Those five images corresponded to the five counts in the indictment and as to each photo the officer testified to where the image was recovered from the phone and when the photo was created. In addition to those five images, the officer also recovered 52 other images containing child pornography in either the downloads folder of the S.D. card or the internal storage of the phone. The officer further testified that this cell phone had been used multiple times at the hotel to access websites containing child pornography.

An other acts witness testified that she was related to Palacio-Gregorio and that he molested her when she was a child. When the victim was 14 years old, Palacio-Gregorio took pictures of her while she was partially clothed. Palacio-Gregorio eventually had sexual intercourse with the victim and the victim became pregnant with his child. Palacio-Gregorio pled guilty to two counts of sexual battery due to his abuse of the victim and the State introduced a certified copy of his convictions at the trial on this case.

A grand jury returned an indictment charging Palacio-Gregorio with five counts of sexual exploitation of children. Palacio-Gregorio was found guilty of all five counts and was initially sentenced as to each. Following his motion for new trial hearing, Palacio-Gregorio's sentence was vacated on Counts 1 through 4 and only his conviction and sentence on count 5 remains, his motion for new trial was otherwise denied.

1. Palacio-Gregorio contends that the evidence was insufficient to support his conviction. Specifically, Palacio-Gregorio argues that the State failed to prove that he possessed the cell phone containing the pornography.

Count 5 of the indictment charged Palacio-Gregorio with "knowingly possess[ing] a material, to wit: an electronic image with a hash value of . . ., depicting a minor engaged in sexually explicit conduct, to wit: lewd exhibition of the vagina of said child[.]"^[1] See OCGA § 16-12-100 (b) (8) ("It is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct.")

With respect to possession, as a general rule,

possession of contraband may be joint or exclusive, and actual or constructive. Actual possession means knowing, direct physical control over something at a given time. For constructive possession, the standard is also well-understood: if a person has both the "power and the intention at a given time to exercise dominion or control" over a thing, then the person is in constructive possession of that thing.

(Citation and punctuation omitted.) Hill v. State___ Ga.App.___ (860 S.E.2d 893) (2021).

Here, a law enforcement officer testified that he observed Palacio-Gregorio viewing child pornography on a cell phone in a car of which he was the sole occupant. When the officer shined a flashlight in Palacio-Gregorio's window, Palacio-Gregorio slid the phone in the console to hide it. After being granted consent to search the vehicle, the officer found the cell phone in the exact place he observed the defendant attempt to conceal it. When the officer retrieved the cell phone, child pornography was on the screen. This testimony was sufficient for the jury to conclude that Palacio-Gregorio was in possession of the cell phone. See Nix v. State, 354 Ga.App. 47, 50 (1) (839 S.E.2d 687) (2020). While Palacio-Gregorio argues that the phone was not his, the jury was free to disregard his explanation. See Lowery v. State, 264 Ga.App. 655, 657-658 (3) (592 S.E.2d 102) (2003).

Additionally, the officer who performed the forensic examination of the cell phone testified about the specific image which formed the basis for count 5. The officer testified that the image was found in the downloads folder of the S.D. card recovered from the phone identified the hash value of the image and the creation date for the photo. The officer further testified that in order for an image to be found in the downloads file of the phone's S.D. card it would actually have to have been saved. Accordingly, there was sufficient evidence to authorize Palacio-Gregorio's conviction. See New, 327 Ga.App. at 95-96 (1); Hunt, 303 Ga.App. at 858-859 (2).^[2]

2. Palacio-Gregorio contends that the trial court erred by admitting certain evidence.

(a) Other acts victim.

Palacio-Gregorio argues that the trial court erred by admitting evidence that he previously had sexual intercourse with a child and took partially nude photographs of the same child.

"In a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused's commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant." OCGA § 24-4-414 (a). 'Offense of child molestation' includes sexual exploitation of children under OCGA § 16-12-100. See OCGA § 24-4-414 (d) (1). "This is a rule of inclusion, with a strong presumption in favor of admissibility." (Citation and punctuation omitted.) Boyd v. State, 351 Ga.App....