HOLZHEUSER v. the STATE.

FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

June 12, 2019

In the Court of Appeals of Georgia
A19A0757. HOLZHEUSER v. THE STATE. DO-025 C

DOYLE, Presiding Judge.

Following a jury trial, Robert Holzheuser was convicted of child molestation1

and public indecency.2 Holzheuser now appeals from the denial of his motion for new

trial, contending that (1) he received ineffective assistance of counsel with respect to

(a) the admission of certain website images admitted at trial, (b) the admission of his

recorded confession to police, and (c) the failure to request a downward deviation

from mandatory sentencing under OCGA § 17-10-6.2; and (2) the trial court erred by

1
OCGA § 16-6-4 (a) (1).
2
OCGA § 16-6-8 (a) (2). The indecency count merged into the molestation
count.
admitting certain similar transaction evidence pursuant to OCGA § 24-4-414. For the

reasons that follow, we affirm.

Construed in favor of the verdict,3 the evidence shows that a family was

shopping at a home improvement store when the 9-year-old daughter became upset

and asked her mother to leave the store immediately. They left, and the daughter soon

disclosed to her father that a male stranger had lifted up his sweatshirt and exposed

his penis to her while they were in the store. The family returned to the store, which

eventually was able to produce a surveillance video of the incident after the family

filed a police report. Based on the video and other store records, the store and police

were able to determine that the suspect in the video purchased a gift card using a debit

card issued to Holzheuser.

Holzheuser was identified as an active member of the U. S. Navy, so police

contacted Special Agent Jason Boswell, an investigator with the Naval Criminal

Investigative Service. Boswell contacted Holzheuser’s commanding officer and

arranged a time to interview Holzheuser that would not interfere with Holzheuser’s

military duties.

3
See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

2
 At the appointed time, Holzheuser reported to the interview, which was

conducted by Boswell and police detective Brian Allgood. Boswell read Holzheuser

a form titled “Military Suspect’s Acknowledgment and Waiver of Rights.” Boswell

read the form to Holzheuser, who signed the waiver acknowledging: that he was

suspected of committing indecent exposure, that he had a right to remain silent and

not answer any questions, that any statements could be used against him in a court

martial or other trial, that he could have an attorney present, that he could terminate

the interview at any time, and that he was free to leave at any time. After Holzheuser

signed the waiver, the interview began, and Holzheuser ultimately admitted that he

exposed himself to a minor at the home improvement store. He also admitted that he

had viewed child pornography, and “I know that there is child pornography on my

phone. . . . I’m not going to deny that there have been single[-]digit [age] children on

my phone.”

Based on the interview and other investigation, Holzheuser was indicted in

superior court for committing one count each of child molestation and public

indecency. Prior to trial, he moved to exclude certain sexual images of children found

in connection with a search of his cell phone, which motion was denied. Following

a jury trial, he was found guilty on both counts, and the trial court merged the

3
indecency count into the child molestation count. Holzheuser moved for a new trial,

and after an evidentiary hearing, the trial court denied his motion, giving rise to this

appeal.

1. Holzheuser first argues that he received constitutionally ineffective

assistance of trial counsel on three grounds: (a) the admission of certain website

images, (b) the admission of his recorded police interview, and (c) his trial counsel’s

failure to request a downward deviation from the mandatory sentencing provision in

OCGA § 17-10-6.2.

Under Strickland v. Washington,4 to succeed on an ineffective assistance claim,

a criminal defendant must demonstrate both that his trial counsel’s performance was

deficient and “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”5

“There is a strong presumption that the performance of trial counsel falls within the

wide range of reasonable professional assistance. The reasonableness of the conduct

4
466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
5
See id. at 687-688, 694 (III) (A)-(B).

4
is viewed at the time of trial and under the circumstances of the case.”6 If an appellant

fails to meet his burden of proving either prong of the Strickland test, the reviewing

court need not examine the other prong.7 In reviewing the trial court’s decision, “[w]e

accept the trial court’s factual findings and credibility determinations unless clearly

erroneous, but we independently apply the legal principles to the facts.”8

With this framework in mind, we turn to Holzheuser’s specific arguments on

appeal.

(a) Failure to object to the admission of website images. At trial, the State

examined Boswell about the investigation he conducted after the police relayed the

family’s complaint about Holzheuser. Boswell explained that part of the investigation

included reviewing the contents of Holzheuser’s smart phone, based on Holzheuser’s

admission during the police interview that he had viewed child pornography on his

6
(Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6)
(596 SE2d 597) (2004).
7
See Strickland, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3)
(591 SE2d 782) (2004).
8
(Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313)
(2003).

5
phone.9 As part of that search, Boswell obtained a list of the websites that had been

viewed on Holzheuser’s phone as well as Internet search terms and notes stored in a

note-taking application. Included in this information were sexually suggestive

uniform resource locators (“URLs”10) and searches with term “little girls” in them.

Boswell further explained that he entered the search terms and URLs on a dedicated

investigative computer and printed out screen shots of the results, including a small

number of “representative images” he selected independently. There was also at least

one suggestive website URL saved in Holzheuser’s note-taking application, and

Boswell printed out screen shots of the results when he visited that website as part of

the investigation.

According to Boswell, the images and web sites from these searches featured

“images [of] consistently young[] girls in their underwear or lingerie.” As part of his

testimony, Boswell carefully explained that these were images that displayed when

he searched the terms and URLs found on Holzheuser’s phone; he did not claim that

9
Police did an initial, perfunctory search pursuant to Holzheuser’s consent, and
they later did a more thorough search pursuant to a warrant.
10
A URL refers to a particular website address on the Internet. See
https://www.merriam-webster.com/dictionary/URL (website last accessed May 5,
2019).

6
the images themselves were found on Holzheuser’s phone. Essentially, “I opened up

three of the links to get a gist of what is on the website or where it takes you. And that

was enough for me.” He also testified that there were no images that he believed to

be pornographic saved on the phone itself, and on cross-examination, Boswell agreed

that he did not know whether Holzheuser actually viewed any of the particular images

presented at trial.

(i) Authentication. Holzheuser argues that his trial counsel should have

objected to the captured images introduced during Boswell’s testimony because they

were not properly authenticated. Holzheuser cites United States v. Bansal,11 arguing

in his brief that the Federal Rules of Evidence “require[] the use of an internet archive

to show how that website appeared at the time of access. . . .” While that case did

involve testimony of a witness describing an internet archive called the “Wayback

Machine,” the case did not purport to establish the clear rule that Holzheuser urges

here. Instead, Bansal merely reiterates one way to satisfy Federal Rule of Evidence

901, which states that “[t]o satisfy the requirement of authenticating or identifying an

11
663 F3d 634, 667 (VII) (D) (2) (3d Cir. 2011).

7
item of evidence, the proponent must produce evidence sufficient to support a finding

that the item is what the proponent claims it is.”12

The applicable rule in Georgia is OCGA § 24-9-901 (a): “The requirement of

authentication or identification as a condition precedent to admissibility shall be

satisfied by evidence sufficient to support a finding that the matter in question is what

its proponent claims.” This can be shown by “[t]estimony of a witness with

knowledge that a matter is what it is claimed to be,”13 or by a document’s

“[a]ppearance, contents, substance, internal patterns, or other distinctive

characteristics, taken in conjunction with circumstances.”14 Thus, there is no bright

line rule specifically requiring the use of an Internet archive, and based on Boswell’s

testimony — that the screen shots accurately depicted the images Boswell viewed and

printed out, not that they had been viewed by Holzheuser at a particular time —

Holzheuser’s argument fails as to an authenticity objection regarding those

12
Id.
13
OCGA § 24-9-901 (b) (1).
14
OCGA § 24-9-901 (b) (4).

8
documents.15 The admission of evidence is reviewed only for an abuse of the trial

court’s discretion,16 and based on the record before us, Holzheuser’s argument does

not demonstrate deficient performance on the part of his trial counsel.17

(ii) Relevance. Holzheuser similarly argues that his trial counsel should have

objected on the ground that the website images were not relevant to the issues at trial

because there was no evidence that Holzheuser viewed them. Relevant evidence is

“evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.”18

The images the State introduced through Boswell were admitted, in part, to

show Holzheuser’s sexual intent in exposing himself to a young girl. Demonstrating

15
See Cotton v. State, 297 Ga. 257, 259 (3) (773 SE2d 242) (2015)
(“[D]ocuments from electronic sources such as the printouts from a website . . . are
subject to the same rules of authentication as other more traditional documentary
evidence and may be authenticated through circumstantial evidence.”).
16
See, e.g., Spencer v. State, 287 Ga. 434, 436 (2) (a) (696 SE2d 617) (2010)
(noting that we review a trial court’s decision on the admission or exclusion of
evidence for an abuse of discretion).
17
See Faust v. State, 302 Ga. 211, 218 (4) (a) (805 SE2d 826) (2017) (holding
that “counsel was not ineffective for failing to make a meritless objection”).
18
OCGA § 24-4-401.

9
a prurient interest in underage girls would support a finding that Holzheuser intended

to expose himself for the purpose of sexual gratification, which is an element of child

molestation.19 Holzheuser denied any sexual intent during his police interview, so

evidence tending to prove that fact would be relevant. Accordingly, a relevance

objection would have been meritless and cannot support Holzheuser’s ineffective

assistance claim.20

(iii) Rule 403. Holzheuser next argues that his trial counsel should have

objected on the ground that the images were inadmissable under OCGA § 24-4-403:

“Relevant evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury or

by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.”

Holzheuser points to the fact that there was no evidence that he actually viewed

the specific images at issue, and he urges that this deprived the evidence of probative

19
See OCGA § 16-6-4 (a) (“A person commits the offense of child molestation
when such person: (1) Does any immoral or indecent act to or in the presence of or
with any child under the age of 16 years with the intent to arouse or satisfy the sexual
desires of either the child or the person. . . .”).
20
See Faust, 302 Ga. at 218 (4) (a).

10
value. Holzheuser misapprehends the purpose of the evidence. The State did not

argue that the images were on Holzheuser’s phone or that Holzheuser viewed the

particular images proffered through Boswell’s testimony. Instead, the State argued

that the evidence was representative of the type of images available on the websites

Holzheuser admitted to visiting as well as on URLs stored on Holzheuser’s phone.

Police found no sexually explicit images actually stored on Holzheuser’s phone, so

the evidence was useful to show the type of content displayed when someone visited

the URLs and used the search terms saved on Holzheuser’s phone. Futher, the images

were probative of the fact that Holzheuser sought sexual gratification by viewing

sexually suggestive images of underage girls. As noted above, this would be relevant

to his intent in committing the acts alleged in the indictment.

The harm that Rule 403 seeks to minimize is not mere prejudice, but “unfair

prejudice,”21 such as by introducing inflammatory material that has no bearing on the

issues at trial. But here, Holzheuser admitted to police that he had viewed child

erotica on his phone, and the images were the result of visits to the URLs on

21
See, e.g., United States v. Meester, 762 F2d 867, 875 (II) (A) (11th Cir.
1985) (“Relevant evidence is inherently prejudicial; but it is only unfair prejudice,
substantially outweighing probative value, which permits exclusion of relevant
matter[.]”) (citation and punctuation omitted; emphasis in original) (applying Fed. R.
Evid. 403).

11
Holzheuser’s phone and in his note-taking app. Thus, the material offered by Boswell

was part of the subject matter of the police interview, and it was helpful in

demonstrating the type of content in Holzheuser’s phone and web activity.22 Boswell

was careful to explain what the images were as well as what they were not, and the

State did not attempt to confuse the jury as to what the images represented. Under

these circumstances, the challenged evidence did not present a risk of undue prejudice

that substantially outweighed its probative value. Accordingly, trial counsel’s failure

to make an objection on Rule 403 grounds does not meet Holzheuser’s burden under

Strickland.

(b) (i) Failure to object to admission of police interview based on a fear of

losing employment. Prior to trial, Holzheuser’s trial counsel moved to exclude the

police interview, and the trial court held a Jackson-Denno23 hearing at which Boswell

testified. The trial court denied Holzheuser’s motion to exclude the interview, finding

it voluntary. On appeal, Holzheuser contends that his trial counsel should have

objected to admission of the interview on the ground that Holzheuser consented to the

22
See generally Stinski v. State, 281 Ga. 783, 786 (3) (642 SE2d 1) (2007)
(“[P]hotographs are inherently more persuasive regarding the existence of the things
they depict than testimony regarding those same things.”).
23
Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

12
interview only because he reasonably feared he would lose his duty-required security

clearance if he did not speak to police.

As support, Holzheuser cites Garrity v. New Jersey,24 which addressed police

officers accused of fixing traffic tickets. As part of an investigation ordered by the

Supreme Court of New Jersey, the state attorney general interviewed the officers,

warning them that they had a right to refuse to answer the questions, but if they

refused, they would be subject to removal from their jobs pursuant to a state statute.25

The United States Supreme Court ruled that the interviews were not voluntary

because “the choice imposed on [the officers] was one between self-incrimination or

job forfeiture.”26

Here, Boswell explained the interview scenario in this case. At the outset,

Boswell explained to Holzheuser that he was not in custody: “The door is not locked.

You’re free to leave at any time.” Holzheuser replied that he “definitely

underst[oo]d.” Boswell then read Holzheuser an acknowledgement and waiver of

rights stating:

24
385 U. S. 493 (87 SCt 616, 17 LE2d 562) (1966).
25
See id. at 495.
26
Id. at 496.

13
 I have the right to remain silent and make no statement at all[.] Any
statement I make can be used against me in a trial by court-marshall or
other judicial or administrative proceeding[.] I have the right to consult
with a lawyer prior to any questioning. This lawyer may be a civilian
lawyer retained by me at no cost to the United States, a military lawyer
appointed to act as my counsel at no cost to me, or both[.] I have the
right to have my retained lawyer and/or appointed military lawyer
present during this interview[.] . . I may terminate this interview at any
time, for any reason. . . With that understanding, I have decided that I do
not desire to remain silent, consult with a . . . lawyer, or have a lawyer
present at this time. I make this decision freely and voluntarily. No
threats or promises have been made to me.

Boswell explained to Holzheuser that these rights “are not going away. . . . [I]f you

would like to speak with us or you have anything that you want to say, we’re open to

hear it. But if you decide that you don’t, you can always exercise [the right not to

speak]. You can turn it off for any reason at any time.” Holzheuser agreed to sign the

waiver.

With respect to the circumstances surrounding the interview, at trial Boswell

explained that Holzheuser was not in custody at the time of the interview, but military

protocol requires that suspects be read the acknowledgment of rights due to the

influence of command:

14
 [Military suspects] are under authority of a commanding officer. He had
to come to our office that morning. We talked to his commanding
officer. [Holzheuser] was sent there. Once he gets to the building, that’s
done. He doesn’t have to speak to us, but we have to explain that, you
were told to come here. You are not in custody. You are not under arrest.
The door is not locked. You are free to leave at any time. We would like
to speak to you. I’m going to go over your . . . rights. Once you’ve
acknowledged those, we’ll have a conversation if you want to. . .[W]hile
they told you to come here, again, your part is over.

As explained by Boswell, Holzheuser was under an obligation to report to the

interview by virtue of the military command authority, but he was not under

obligation to speak or substantively engage in the interview, and he could invoke his

right to remain silent or leave at any time. Holzheuser cites no regulation or other law

requiring him to submit to the interview process and answer the investigators’

questions. This materially distinguishes the facts of this case from those in Garrity,

where the officers were under a statutory obligation to follow through with the

substance of the interview or be subject to discipline for not doing so.27 That

Holzheuser might be subject to discipline for the content of his interview did not

render the interview involuntary; if anything, it would militate against participating

27
See id.

15
in the interview, which Holzheuser elected to do with knowledge of his right to

remain silent. Further, Boswell’s urging Holzheuser to tell the truth in the interview

to help himself in the eyes of his commanding officers or eligibility for duty status

was not improper.28 Under these circumstances, an objection pursuant to Garrity

would not require exclusion of the interview, and this argument demonstrates no basis

for reversal.

(ii) Failure to object to the police interview on the ground that Holzheuser was

required to waive his Miranda rights to make a voluntary statement. Next,

Holzheuser argues that his trial counsel should have argued that he was misled into

waiving his rights because, as stated in his appellate brief, Holzheuser “would need

to waive his rights to speak to Agent Boswell as he [had] been ordered to do when his

‘Skipper called him in.’” Holzheuser points to Boswell’s statement that “before we

can really get into what has gone on . . . we need you to acknowledge your rights

before [we] get into that. They’re not going away.” Based on this, Holzheuser argues

that he was obligated to waive his rights in order to speak to investigators, which

28
See Price v. State, __ Ga. __ (2) (825 SE2d 178) (2019) (“[I]t is permissible
for the police to tell a suspect that the trial judge may [favorably] consider his truthful
cooperation with the police.”) (punctuation omitted); Morales v. State, 337 Ga. App.
614, 617 (2) (b) (788 SE2d 535) (2016) (holding that exhortations to tell the truth are
not improperly coercive).

16
contravenes the holding in State v. Darby: “[A] suspect can always make a

spontaneous, voluntary statement which would be admissible at trial. . . [More fully,

a suspect can] make a voluntary statement, but . . . he [can] not be interrogated by the

officers, without signing the waiver.”29

In light of the facts before us, Holzheuser’s argument does not require reversal.

In Darby, the defendant made a spontaneous statement after invoking his right to

counsel, and the officers responded that “If you want to tell us your side of the story

you can — you know, you can sign off on a waiver and tell us your side of the

story.”30

Here, unlike in Darby, [Holzheuser] did not make a spontaneous
statement or indicate that he wanted to do so. Instead, the agent
explained that he was presenting him with his rights before proceeding
with an “interview” about what had occurred. . . . After confirming that
[Holzheuser] understood his rights, the agent began questioning him.31

29
(Citation omitted.) State v. Darby, 284 Ga. 271, 272 (1) (663 SE2d 160)
(2008).
30
(Punctuation omitted.) Id. at 271.
31
Francis v. State, 296 Ga. 190, 195-196 (3) (A) (766 SE2d 52) (2014).

17
Thus, this scenario presents no basis for reversal, had Holzheuser’s trial counsel

objected pursuant to the rule in Darby.32

(c) Failure to request a downward deviation from the mandatory minium

sentence. In his last ineffective assistance claim, Holzheuser contends that his trial

counsel should have requested a downward deviation in his sentence pursuant to

OCGA § 17-10-6.2 (c) (1) (C). That Code section provides:

In the court’s discretion, the court may deviate from the mandatory
minimum sentence33 [applicable to certain sexual offenses], or any
portion thereof, when the prosecuting attorney and the defendant have
agreed to a sentence that is below such mandatory minimum or provided
that . . . [t]he court has not found evidence of a relevant similar
transaction. . . .

Holzheuser has provided no evidence that the State would have agreed to a

downward deviation, nor has he demonstrated that the trial court felt constrained not

to exercise its discretion in his favor by his failure to request a lower sentence.

32
See id.
33
Under OCGA § 17-10-6.2 (b), persons convicted of certain sexual offenses
“shall be sentenced to a split sentence which shall include the minimum term of
imprisonment specified in the Code section applicable to such sexual offense. No
portion of the mandatory minimum sentence imposed shall be suspended, stayed,
probated, deferred, or withheld by the court.”

18
Nevertheless, even assuming the trial court would exercise its discretion in

Holzheuser’s favor, the trial court would be authorized to do so only if it did not find

evidence of a relevant similar transaction.34 The trial court did find such evidence,

and in light of our holding below in Division 2 affirming that ruling, the trial court

was not authorized to deviate from the statutory sentencing requirement in OCGA §

17-10-6.2. Accordingly, Holzheuser’s request would have been meritless, and this

argument fails.35

2. Holzheuser’s last argument is that the trial court erred by admitting evidence

under OCGA § 24-4-414. This rule provides that “[i]n a criminal proceeding in which

the [defendant] 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.”36 An “offense

of child molestation” includes transmitting to a child under 16 years old, by means

of an electronic device, images of a person engaging in an indecent act “with the

34
See OCGA § 17-10-6.2 (c) (1) (C).
35
See Faust, 302 Ga. at 218 (4) (a).
36
OCGA § 24-4-414 (a).

19
intent to arouse or satisfy the sexual desires of either the child or the person.”37

OCGA § 24-4-414 is “a rule of inclusion, with a strong presumption in favor of

admissibility, and the State can seek to admit evidence under these provisions for any

relevant purpose, including propensity. And a trial court’s decision to admit other acts

evidence will be overturned only when there is a clear abuse of discretion.”38

Here, after the State provided notice of its intent to admit evidence that

Holzheuser committed a prior act of child molestation, the court held a hearing,

reviewed the police report from the prior incident, and admitted the evidence. The

record shows that in 2013, an 11-year-old girl was staying at a local motel with her

family. On several occasions over the course of a week, when the girl walked to her

school bus in the morning, the girl observed notes in the window of a nearby hotel

room occupied by Holzheuser. One note said, “tap on the window to see my D-I-C-

K,” and another note said “I want to lick your P-U-S-S-Y.” Another time, the girl saw

a phone resting against the window and displaying a photo of a nude woman

receiving oral sex. The girl told her mother, and when they immediately came to look

37
OCGA §§ 24-4-414 (d) (1); 16-6-4 (a) (2).
38
(Footnotes and punctuation omitted.) King v. State, 346 Ga. App. 362, 364
(1) (816 SE2d 390) (2018).

20
for the sign, it was gone. The mother deduced by the timing of the notes that they

were directed at her daughter.

This record supports a finding that Holzheuser displayed indecent notes,

including an indecent image on his phone depicting oral sex, to the 11-year-old child

for sexual gratification. Accordingly, this would demonstrate a prior act of child

molestation,39 making the evidence admissible for the purpose of showing

Holzheuser’s lustful interest in minor girls of approximately the same age as the

victim in this case.40

The exception to the general rule that evidence of other crimes is not
admissible has been most liberally extended in the area of sexual
offenses[, particularly against minors]: In [such cases], evidence of
similar previous transactions is admissible to show the lustful
disposition of the defendant [toward underage children]. There need
only be evidence that the defendant was the perpetrator of both crimes
and sufficient similarity or connection between the independent crime
and the offenses charged. 41

39
See OCGA § 16-6-4 (a) (2).
40
See OCGA § 24-4-414 (d) (1).
41
(Punctuation omitted.) Peterson v. State, 337 Ga. App. 70, 74 (785 SE2d
905) (2016) (decided under prior Evidence Code).

21
In light of the targeting of similarly-aged, female child victims, as well as the semi-

public nature of indecency in each case, the trial court did not abuse its discretion in

admitting the prior act evidence under OCGA § 24-4-414.

Judgment affirmed. Coomer and Markle, JJ., concur.

22