Aman v

State, 261 Ga. 669, 409 S.E.2d 645, 1991 Ga. LEXIS 831 (1991). Terms genitals and pubic area in O.C.G.A. § 16-12-100(a)(4)(D), as to exploitation of children, do not include buttocks or breasts. Weyer v. State, 333 Ga. App. 706, 776 S.E.2d 304, 2015 Ga. App. LEXIS 504 (2015). “Visual medium” construed. — Motion to quash charge of sexual exploitation of children was error as “visual medium,” as used in O.C.G.A. § 16-12-100, encompassed digital images of child pornography sent via computer and was thus prohibited conduct. State v. Brown, 250 Ga. App. 376, 551 S.E.2d 773, 2001 Ga. App. LEXIS 767 (2001). Conviction on each and every image possessed permitted. — Plain language of O.C.G.A. § 16-12-100(b)(8), when read in the statute’s entirety, allowed for a charge and conviction on each and every image the defendant possessed. State v. Williams, 347 Ga. App. 102 16-12-100 OFFENSES/HEALTH & MORALS 183, 818 S.E.2d 256, 2018 Ga. App. LEXIS 480 (2018), aff’d, 307 Ga. 778, 838 S.E.2d 235, 2020 Ga. LEXIS 50 (2020). Simultaneous possession of multiple items of visual media. — Georgia Supreme Court concludes that O.C.G.A. § 16-12-100(b) was unambiguous and permitted only one prosecution and conviction for the simultaneous possession of multiple items of visual media. The offense was the possession of any prohibited “visual medium” at all, whether one or 100. Edvalson v. State, 310 Ga. 7, 849 S.E.2d 204, 2020 Ga. LEXIS 672 (2020). Venue. — Evidence was sufficient to prove venue was proper in Coweta County for purposes of the sexual exploitation charge because the defendant possessed the image of the victim’s genitals in Coweta County as the defendant lived in Coweta County during the time the image was on the defendant’s cellular phone. Boyd v. State, 351 Ga. App. 469, 829 S.E.2d 163, 2019 Ga. App. LEXIS 265 (2019). Requirements for immunity. — To be entitled to immunity under O.C.G.A. § 16-12-100(d), two requirements must be satisfied. First, the person asserting immunity must be a member of a law enforcement or prosecution agency. Second, the otherwise illegal conduct must have occurred when that person was acting in their official capacity to investigate and/or prosecute a violation of O.C.G.A. § 16-12-100. Maddox v. State, 346 Ga. App. 674, 816 S.E.2d 796, 2018 Ga. App. LEXIS 427 (2018). Application Probable cause. — Deputy sheriff was entitled to qualified immunity on the arrestee’s 42 U.S.C. § 1983 Fourth Amendment claim because the deputy sheriff had at least arguable probable cause to arrest the arrestee because the deputy sheriff applied for an arrest warrant for sexual exploitation of children, O.C.G.A. § 16-12-100; when the totality of the circumstances was viewed objectively, a reasonable officer in the deputy sheriff’s position could have believed that the deputy had probable cause to arrest the arrestee based on: (1) 16-12-100 the investigations conducted by both the school technology specialists and the sheriff’s office specialist; (2) the images found on the computers used by the arrestee; (3) an interview with the school technology staff; and (4) the doctor’s statement that some of the individuals depicted in the images appeared to be under the age of eighteen years. Rockel v. Watkins, 673 F. Supp. 2d 1356, 2009 U.S. Dist. LEXIS 109692 (M.D. Ga. 2009). Trial court did not err in denying the defendant’s motion to suppress evidence seized from a search warrant authorizing entry into the defendant’s home because the affidavit submitted in support of the warrant provided a sufficient basis for the magistrate to make a practical, commonsense decision that there was a fair probability that evidence of sexual exploitation of children would be found at the defendant’s residence; the National Center for Missing and Exploited Children forwarded the information it received from a security specialist employed by the host of the website to the Georgia Bureau of Investigation (GBI), and the affidavit of a special agent with the GBI set forth facts that showed both the reliability and basis of knowledge of the specialist. James v. State, 312 Ga. App. 130, 717 S.E.2d 713, 2011 Ga. App. LEXIS 904 (2011), cert. denied, No. S12C0347, 2012 Ga. LEXIS 227 (Ga. Feb. 27, 2012). No fatal variance in indictment. — There was no fatal variance between the indictment and the evidence based on the fact that the indictment alleged that the defendant knowingly possessed a photograph depicting a minor engaged in sexually explicit contact while the evidence showed it was a digital image as the indictment sufficiently apprised the defendant of the charge. Moon v. State, 335 Ga. App. 642, 782 S.E.2d 699, 2016 Ga. App. LEXIS 53 (2016), cert. denied, No. S16C0951, 2016 Ga. LEXIS 478 (Ga. Sept. 6, 2016). Offenses did not merge. — Trial court properly refused to merge a defendant’s convictions as the offenses of aggravated child molestation and sexual exploitation of children were separate legal offenses and did not merge as a matter of law; the offenses did not merge as a matter of fact 103 Application (Cont’d) as: (1) the defendant was charged with five separate acts of aggravated child molestation, each of which was based on different facts; (2) the 35 convictions of sexual exploitation of children were based on the distinct actions of the defendant creating 32 separate sexually explicit photographic or video images and distributing three other sexually explicit images over the Internet; and (3) the defendant’s creation of sexually explicit images of several of the sex acts that constituted the basis for the aggravated child molestation charges were separate actions warranting a separate charge and conviction as the offenses of aggravated child molestation were completed separately and independently of the defendant photographing or videotaping the acts. Walthall v. State, 281 Ga. App. 434, 636 S.E.2d 126, 2006 Ga. App. LEXIS 1121 (2006). Offenses should have merged. — Trial court erred in failing to merge the defendant’s convictions for possession with intent to distribute images depicting a minor engaged in sexually explicit conduct into a single count, and the court of appeals erred in affirming that decision, because “any” in the phrase “any visual medium” had to be interpreted as a quantitative term, implying no specific quantity and having no limit; and the offense was the possession of any prohibited “visual medium” at all, whether one or 100; accordingly, the supreme court concluded that O.C.G.A. § 16-12-100(b)(5) was unambiguous and permitted only one prosecution and conviction for the simultaneous possession of multiple items of “visual media”. Edvalson v. State, 310 Ga. 7, 849 S.E.2d 204, 2020 Ga. LEXIS 672 (2020). No expectation of privacy in subscriber information voluntarily conveyed to Internet provider. — Trial court properly denied the defendant’s motion to suppress identifying Internet subscriber information obtained by police pursuant to an administrative subpoena issued under O.C.G.A. § 16-9-108(a) because the defendant lacked standing to challenge the search of the defendant’s 16-12-100 Internet provider (IP) for identifying information since O.C.G.A. § 16-9-109(b) did not grant a defendant a reasonable expectation of privacy in subscriber information voluntarily conveyed to the IP. Courtney v. State, 340 Ga. App. 496, 797 S.E.2d 496, 2017 Ga. App. LEXIS 56 (2017), cert. denied, No. S17C1315, 2017 Ga. LEXIS 649 (Ga. Aug. 14, 2017). Suppression of computer evidence not warranted. — Warrantless seizure of two computers in a defendant’s home was authorized by exigent circumstances, specifically, the objectively reasonable concern that the defendant threatened to destroy computer images of child pornography, images that were vulnerable to quick destruction, irreplaceable, and essential to proving that a crime had been committed. Hesrick v. State, 308 Ga. App. 363, 707 S.E.2d 574, 2011 Ga. App. LEXIS 189 (2011). Trial court did not err finding defendant consented to search of bag and all contents, including digital information contained on laptop, and that consent was never withdrawn as record showed defendant knew that sergeant was searching for photographs of children and defendant gave permission to check bag, which contained laptop. Winslow v. State, 315 Ga. 133, 880 S.E.2d 530, 2022 Ga. LEXIS 297 (2022). Certain surreptitious photos not within statute. — Surreptitious photos of the genitals of clothed children, visible due to the angle of the camera and the children’s open legs, was not within the precise language of O.C.G.A. § 16-12-100(b)(5). Craft v. State, 252 Ga. App. 834, 558 S.E.2d 18, 2001 Ga. App. LEXIS 1432 (2001), cert. denied, No. S02C0654, 2002 Ga. LEXIS 418 (Ga. May 13, 2002), cert. denied, 537 U.S. 1025, 123 S. Ct. 537, 154 L. Ed. 2d 437, 2002 U.S. LEXIS 8433 (2002). Admission of photographs showing the victims naked in a bath tub was upheld since the photographs were relevant to show that defendant’s interest in the victims was sexual in nature. Phillips v. State, 269 Ga. App. 619, 604 S.E.2d 520, 2004 Ga. App. LEXIS 844 (2004). USB drive with digital photos sufficient for conviction. — Evidence was sufficient to convict the defendant of 104 16-12-100 OFFENSES/HEALTH & MORALS five counts of sexual exploitation of children beyond a reasonable doubt because the evidence was more than sufficient to exclude every reasonable hypothesis that someone other than the defendant possessed a USB drive when the defendant stayed at a hotel since a forensic computer specialist testified that the date and time imprinted on a photograph taken from a digital camera was recorded from the digital camera’s date and time feature; given the specialist’s testimony, coupled with the fact that the defendant possessed several computers, a digital camera, and another USB drive in the defendant’s home in Arkansas, a rational trier of fact could find that the defendant took defendant’s own photograph from the defendant’s home in Arkansas with the defendant’s digital camera, saved those photographs to the USB drive, took the USB drive with the defendant to Georgia, where the defendant stayed at the hotel, and inadvertently left the USB drive on the fifth floor of the hotel, and the jury could also conclude that the defendant knowingly possessed material depicting minors engaged in sexually explicit conduct in light of evidence that sexually explicit images of children were saved to the USB drive within seconds of the time two photographs of the defendant were saved to such drive. Hunt v. State, 303 Ga. App. 855, 695 S.E.2d 53, 2010 Ga. App. LEXIS 345 (2010), overruled on other grounds, Hill v. State, 360 Ga. App. 143, 860 S.E.2d 893, 2021 Ga. App. LEXIS 318 (2021). Admission of a videotape of defendant masturbating and sexually explicit magazines was upheld because they showed defendant’s lustful disposition toward the unlawful sexual activity with which defendant was charged. Phillips v. State, 269 Ga. App. 619, 604 S.E.2d 520, 2004 Ga. App. LEXIS 844 (2004). Trial court did not err in allowing the jury to view videos of child pornography that were allegedly downloaded by the defendant because the videos presented were clearly directly relevant to the specific offenses of sexual exploitation charged and the trial court limited the videos’ prejudicial impact by significantly 16-12-100 restricting the state’s use of the videos that were themselves the subject of the charges against the defendant. Beaver v. State, 330 Ga. App. 496, 767 S.E.2d 503, 2014 Ga. App. LEXIS 839 (2014). Admission of DVDs. — Defendant’s conviction for sexual exploitation of children in violation of O.C.G.A. § 16-12-100(b)(8) was affirmed because the jury viewed DVDs of the movie files found on the defendant’s computer and in the defendant’s home, which depicted small children, who were “clearly prepubescent” and was authorized to conclude that the children were under the age of 18. Henderson v. State, 320 Ga. App. 553, 740 S.E.2d 280, 2013 Ga. App. LEXIS 234 (2013). Attempted sexual exploitation. — Indictment charging defendant with attempted sexual exploitation of children properly alleged that defendant took a substantial step toward the commission of the crime by making arrangements to meet the victim for the purpose of violating the statute and by proceeding to the meeting place. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182, 2000 Ga. App. LEXIS 547 (2000), cert. denied, No. S00C1515, 2000 Ga. LEXIS 839 (Ga. Oct. 27, 2000). Trial court did not err in concluding that the victim, who subsequently married the defendant, could be compelled to testify against the defendant with regard to the charge of sexual exploitation of children because that charge qualified as a crime against the person of a minor based upon the public policy expressed in former O.C.G.A. § 249-23(b) (see now O.C.G.A. § 24-5-503), the particular pictures involved in the case, and the specific subsection with which the defendant was charged, O.C.G.A. § 16-12-100(b)(8); the pictures in the defendant’s possession showed the victim personally engaged in sexually explicit conduct. Peck v. State, 300 Ga. App. 375, 685 S.E.2d 367, 2009 Ga. App. LEXIS 1171 (2009). Evidence sufficient to support conviction. — Defendants’ convictions of sexual exploitation of children were supported by evidence that they had taken turns photographing each other as 105 Application (Cont’d) they engaged in sexual intercourse with the victim, who was under 18 years of age at the time, and it was not necessary for the state either to produce the photographs in question or otherwise to prove that the camera had been working properly. Moua v. State, 200 Ga. App. 49, 406 S.E.2d 557, 1991 Ga. App. LEXIS 745 (1991). Defendant was properly convicted of four counts of sexual exploitation of children where there was evidence that defendant’s minor daughter had shaved her pubic area and the position of her body in photographs presented a question for jury determination as to whether the photographs depicted a lewd exhibition of the minor’s pubic area. These facts constituted adequate evidence to present for jury determination whether defendant’s exhibition of photographs was accomplished with intent to sell. Unden v. State, 218 Ga. App. 463, 462 S.E.2d 408, 1995 Ga. App. LEXIS 758 (1995), cert. denied, No. S96C0090, 1996 Ga. LEXIS 192 (Ga. Jan. 5, 1996). Evidence that the minor did not drive a motor vehicle in defendant’s presence, and that defendant was aware of the girlish handwriting and phraseology displayed on a greeting card she sent to him and of her appearance and demeanor was sufficient to prove that defendant knew the minor was under 18 years of age. Phagan v. State, 268 Ga. 272, 486 S.E.2d 876. Evidence was sufficient to convict the defendant on two counts of sexual exploitation of children for having taken nude photographs of defendant’s two sons. Loveless v. State, 245 Ga. App. 555, 538 S.E.2d 464, 2000 Ga. App. LEXIS 1008 (2000). Evidence sufficiently supported defendant’s conviction for 12 counts of sexual exploitation of children, in violation of O.C.G.A. § 16-12-100(b)(8), because a consent search led to discovery of home-produced photographs of nude young females on defendant’s computer; whether evidence of equal access was sufficient to rebut an inference of possession was a matter for the trier of fact. Tennille v. State, 279 Ga. 884, 622 S.E.2d 346, 2005 Ga. LEXIS 848 (2005). 16-12-100 Defendant’s convictions for aggravated child molestation and sexual exploitation of children were supported by the evidence based on the testimony of two minor victims that the victims engaged in numerous acts of oral and anal sex with the defendant, their identification of themselves in numerous photographs and several videos taken from the defendant’s computer files, which depicted the victims engaging in sexually explicit conduct, and the sexually explicit photographs and video recordings. Walthall v. State, 281 Ga. App. 434, 636 S.E.2d 126, 2006 Ga. App. LEXIS 1121 (2006). Evidence was sufficient to convict a defendant of sexually exploiting children (O.C.G.A. § 16-12-100(b)(8)) as pictures of the defendant and minors engaged in sexually explicit conduct were on a compact disk found in a vehicle in which the defendant had been riding, and some of the same pornographic images were on a computer disk found in the defendant’s home. Thus, the state did not rely solely on the defendant’s ownership of the home to prove possession of the pornography. Clewis v. State, 293 Ga. App. 412, 667 S.E.2d 158, 2008 Ga. App. LEXIS 952 (2008). Evidence was sufficient to sustain a defendant’s conviction for knowing possession of child pornography under O.C.G.A. § 16-12-100(b)(8) because a technician who reviewed a CD and computer from the defendant’s home testified that somebody had deliberately copied sexually explicit images to the CD, and police recovered the defendant’s thumb print from the CD containing child pornography. Dickerson v. State, 304 Ga. App. 762, 697 S.E.2d 874, 2010 Ga. App. LEXIS 606 (2010). Evidence was sufficient to convict a defendant for the sexual exploitation of children as the evidence indicated that files containing child pornography had not come to be on the defendant’s computer in some passive way, and the defendant admitted that the defendant shared files on the Internet using certain file sharing programs, including the program used to download the images of child pornography. Haynes v. State, 317 Ga. App. 400, 731 S.E.2d 83, 2012 Ga. App. LEXIS 716 (2012). 106 16-12-100 OFFENSES/HEALTH & MORALS Defendant’s conviction on 21 counts of sexual exploitation of a minor, in violation of O.C.G.A. § 16-12-100(b)(8), was supported by sufficient evidence based on the photographs on a compact disc containing pictures of young girls exhibited nude on stage in the lewd exhibition of the girls’ genitals. Scarborough v. State, 317 Ga. App. 523, 731 S.E.2d 396, 2012 Ga. App. LEXIS 753 (2012). When an investigator searched the recreational vehicle pursuant to the warrant and found a defendant’s computer, which was the same computer which the investigator’s Internet investigation showed was sharing child pornography files, and contained the video files used as evidence, the evidence was sufficient to find the defendant committed sexual exploitation of children in violation of O.C.G.A. § 16-12-100(b)(8). Hines v. State, 317 Ga. App. 541, 731 S.E.2d 782, 2012 Ga. App. LEXIS 763 (2012). Evidence was sufficient to convict the defendant of 20 counts of sexual exploitation of children because the defendant knowingly possessed or controlled pornographic images of children as the child pornography images found in the cache folder on the defendant’s computer had all been intentionally accessed on the date the officer observed the defendant with the computer; the officer observed the images on the defendant’s computer and watched as the defendant attempted to close and minimize the pornographic images of children; and the images were not generated in a passive way in pop-up windows. Sorg v. State, 324 Ga. App. 595, 751 S.E.2d 196, 2013 Ga. App. LEXIS 991 (2013). Evidence was sufficient to convict the defendant of 15 counts of sexual exploitation of children based on the child pornography found on a girlfriend’s computer because a Georgia Bureau of Investigation expert in computer forensics explained that there was no evidence that a virus had downloaded any of the illegal files, and that there was no evidence that anyone had hacked into the computer; the defendant’s mother, the defendant’s girlfriend, and the defendant’s girlfriend’s mother and brothers testified that they 16-12-100 did not download the illegal files onto the computer; and the downloads began just one month after the defendant moved in with the girlfriend and only on days when the defendant was not incarcerated. Beaver v. State, 330 Ga. App. 496, 767 S.E.2d 503, 2014 Ga. App. LEXIS 839 (2014). Evidence that images of the defendant’s step-daughter were found on the defendant’s computer and hidden on the defendant’s phone was sufficient to prove that the defendant knowingly possessed the images. Gerbert v. State, 339 Ga. App. 164, 793 S.E.2d 131, 2016 Ga. App. LEXIS 599 (2016). Evidence tying the defendant to the flash drive containing the child pornography images, including that the evidence was found in the defendant’s garage in the same location as the defendant’s cell phone, was sufficient to support the defendant’s conviction for 14 counts of sexual exploitation of children. Nix v. State, 354 Ga. App. 47, 839 S.E.2d 687, 2020 Ga. App. LEXIS 55 (2020), cert. denied, No. S20C1171, 2020 Ga. LEXIS 887 (Ga. Nov. 2, 2020). Evidence that an officer observed the defendant viewing child pornography on a cell phone in a car of which the defendant was the sole occupant, and that after being granted consent to search the vehicle, the officer found the cell phone with child pornography on the screen in the exact place the officer observed the defendant attempt to conceal it was sufficient to support the conviction for sexual exploitation of children. State v. Palacio-Gregorio, 361 Ga. App. 339, 862 S.E.2d 605, 2021 Ga. App. LEXIS 452 (2021). Evidence was sufficient to convict the defendant of one count of sexual exploitation of a child because, although the state did not provide any evidence of the individuals’ ages other than the photograph itself, the appellate court reviewed the image at issue and concluded that the individuals in the image were not so mature that something beyond mere chain of custody evidence was required to establish that they were younger than 18 years; and the defendant possessed and controlled the image as the image was downloaded to a laptop, the defendant admitted 107 Application (Cont’d) that the defendant used the laptop and referred to it as “his” during the defendant’s arrest, and the jury apparently rejected the equal access defense when it returned a guilty verdict. Cunningham v. State, 365 Ga. App. 669, 879 S.E.2d 860, 2022 Ga. App. LEXIS 492 (2022). Possession of photographs sufficient. — Sufficient evidence supported the appellant’s conviction for exploitation of children based upon all of the text messages and other evidence adduced at trial that the appellant sought nude photographs that would show all the intimate areas of the victims’ bodies, including their genitals and pubic areas and that the appellant’s intended motivation was to obtain photographs of the victims engaged in sexually explicit conduct as that phrase is defined by the statute. Weyer v. State, 333 Ga. App. 706, 776 S.E.2d 304, 2015 Ga. App. LEXIS 504 (2015). Conviction for conspiring to commit sexual exploitation of a child through possessing photographs of the lewd exhibition of a child’s genitals was supported by testimony that the defendant conspired with another to generate the photos for use in an escort business’s Craiglist ads as corroborated by the victim in the photos. Ferguson v. State, 335 Ga. App. 862, 783 S.E.2d 380, 2016 Ga. App. LEXIS 99 (2016). Evidence sufficient when images viewed on computer. — Evidence was sufficient to sustain the defendant’s 20 convictions for sexual exploitation of children because the child pornography images on the defendant’s computer had all been intentionally accessed on the date the officer observed the defendant viewing the images on the defendant’s computer, and the images were not pop-up images that the defendant had not intentionally viewed. Sorg v. State, 324 Ga. App. 595, 751 S.E.2d 196, 2013 Ga. App. LEXIS 991 (2013). Severance of exploitation counts from molestation, battery counts not required. — Because a case charged in two indictments, one for child molestation and aggravated sexual battery against a 16-12-100 defendant’s daughter and one for the defendant’s possession of digital and print materials depicting a minor engaged in sexually explicit conduct in violation of O.C.G.A. § 16-12-100(b)(8), was not so complex as to impair the jury’s ability to distinguish the evidence and apply the law intelligently to the counts as joined, the trial court did not abuse the court’s discretion in denying the defendant’s motion to sever. Dickerson v. State, 304 Ga. App. 762, 697 S.E.2d 874, 2010 Ga. App. LEXIS 606 (2010). Evidence was insufficient to warrant a conviction under O.C.G.A. § 16-12-100(b)(8) since there was no evidence that the defendant, who entered a bedroom while the codefendant photographed young girls in the nude, knowingly possessed or controlled the picture which the codefendant took of the girls. Conejo v. State, 189 Ga. App. 14, 374 S.E.2d 826, 1988 Ga. App. LEXIS 1272 (1988). Because the mere existence of pornographic images in the cache files of an individual’s computer was insufficient to constitute knowing possession of those materials, absent proof that the individual either: (1) took some affirmative act to save or download those images to the computer; or (2) had knowledge that the computer automatically saved those files, the evidence could not support the defendant’s convictions for knowing possession of child pornography under O.C.G.A. § 16-12-100(b)(8). Barton v. State, 286 Ga. App. 49, 648 S.E.2d 660, 2007 Ga. App. LEXIS 688 (2007), cert. denied, No. S07C1655, 2007 Ga. LEXIS 622 (Ga. Sept. 10, 2007). Defendant’s conviction for sexual exploitation as to an unrelated victim had to be reversed because there was no evidence that the defendant knew that the image, taken by the subject of the photo when the subject was 17 years old, depicted a minor. Gerbert v. State, 339 Ga. App. 164, 793 S.E.2d 131, 2016 Ga. App. LEXIS 599 (2016). Evidence insufficient to support conviction. — Photographs of a minor child or children who are wearing short pants or swim trunks, sitting down with legs open with the child’s genitals 108 16-12-100 OFFENSES/HEALTH & MORALS partially or completely observable; nor photos of children playing outside in various stages of nudity because they were swimming; nor photographs depicting sleeping minor children whose genitals are partially exposed; nor a photo of a partially nude minor child climbing a wall constitute a violation of O.C.G.A. § 16-12-100. Craft v.