Gerbert v. State

DILLARD, Judge,

concurring fully and specially

While I concur fully in the majority’s opinion, I write separately to address Gerbert’s argument that the evidence was insufficient to sustain his conviction for possessing sexually explicit photographs of A. W. As discussed by the majority in Division 2 (b) (i), Gerbert relies upon Barton v. State7 to argue that the evidence was insufficient to sustain this conviction because the relevant images were located in hidden files.

I agree with the majority that the instant case is readily distinguishable from Barton. And I write separately to make clear that a conviction for possession of child pornography does not hinge upon a defendant engaging in affirmative conduct to save or download the relevant files/copies that are presented in evidence, nor does a conviction always require that the defendant have knowledge of the relevant files’ existence, as Gerbert appears to take Barton to mean. Indeed, as thoroughly explained by this Court in New v. State,8 and as recognized by the majority, the holding in Barton is a limited one. In New, we explained as follows:

In Barton , we concluded that evidence of the temporary Internet cache files alone was not sufficient to sustain the conviction under OCGA § 16-12-100 (b) (8) because there was insufficient evidence to prove knowing possession of the files themselves. Barton makes no mention whatsoever of any other evidence presented by the State, which we understand to mean that the temporary Internet files represented the State’s sole evidence, and Barton therefore narrowly approached the question in terms of presen t possession of *183child pornography based on the peculiar facts of that case. But Barton cannot be read to foreclose the State’s ability to prosecute and convict a defendant for prior possession of child pornography when automatic backup files, in addition to other direct or circumstantial evidence, establish same.9

Indeed, in New, we distinguished present possession cases from situations in which the State proves prior possession. And in doing so, we explained that

[i]n the context of prior possession of child pornography, a computer user knowingly possesses the contraband when the user intentionally downloads child pornography to the computer but later deletes the file or when he or she performs some function to reach out and select the image from the Internet. Indeed, a computer user who intentionally accesses child pornography images on a website gains actual control over the images, just as a person who intentionally browses child pornography in a print magazine “knowingly possesses” those images, even if he later puts the magazine down. In this way, any backup or residual files become evidence of possession at a prior point; the files need not represent the literal contraband. Instead, the backed up or residual files are proof that a crime has occurred—that is, proof of the corpus delicti. And while these files standing alone are not sufficient to establish that a defendant knowingly possessed those images at a prior point, they can be used in conjunction with other circumstantial evidence to prove such possession. The totality of the evidence presented by the State, of course, must support an inference that the act was wilful and not inadvertent.10

Thus, in New, we concluded that

even if the State did not (and could not) present evidence that New was aware of the shadow copy images’ existence and, thus, could not prove present possession of those files, there was more than sufficient circumstantial evidence for *184the jury to conclude that New knowingly possessed child pornography on his computer at a prior point.11

And the files that remained on New’s computer “were evidence of prior possession of the original images, no matter the manner in which those original images were viewed—whether New downloaded the original images or limited his action to temporarily viewing the images on a web page.”12

Thus, I wish to reiterate that although Barton speaks to a lack of affirmative conduct on the part of the defendant therein to save or download the subject files to his computer, the focus of that opinion was on present possession of the files at issue because, there, we also focused on the fact that the defendant was unaware of the files’ existence and, could not access or retrieve the images (facts which are wholly inapposite to those in the case sub judice). And once again, as thoroughly detailed in New, nowhere did Barton suggest that a defendant could not be convicted of prior possession of child pornography when automatically saved files of which a defendant is unaware (i.e., files saved to a computer without the defendant taking affirmative conduct with regard to those exact files/copies) and other circumstantial or direct evidence may support a conviction for same.13

Because this distinction might still be unclear to the bench and bar, it is worth emphasizing that the approach we took in Barton is often referred to as the “present possession approach,” which has been described as analogizing a computer to a file cabinet with the temporary Internet file cache as a file drawer.14 And under this approach, “[t]he user has reached out to the Internet through use of a web browser and selected an image, after which the computer automatically ‘files’ a copy of that image in its file drawer.”15 Viewed in this way, the possession of the image begins when “the image is cached and ends when the file is deleted and overwritten by other *185data.”16 Therefore, knowledge of the cache becomes significant because “the focus of the analysis is on the images actually in the cache,”17 which are the contraband themselves.18 Thus, using this approach in Barton, we concluded that the defendant’s lack of knowledge or access to the cache of temporary Internet files was dispositive; and without a showing of any affirmative action by the defendant to place the files in the cache or to interact with the files in the cache, we determined that the State failed to prove that he presently possessed those files.19

Similarly, in New, we were presented with a situation in which images of child pornography were located in a portion of the defendant’s hard drive that was, according to a computer forensics expert, inaccessible to an ordinary user—the system volume information. But in New, we were cognizant that, “unlike tangible contraband, digital images do not necessarily exist in a singular form.”20 Indeed, with data stored in system volume information, a cache of temporary Internet files, unallocated disk space, or any other portion of a computer hard drive responsible for automatic copying and/or backup functions, “there are at least two temporally distinct versions of the image—the image on the computer screen and a copy of the image automatically stored... .”21Thus, in New, we assessed the facts under the so-called “evidence of approach,” in which cached temporary Internet file images, system volume shadow copies, and other forms of backed-up or residual data merely represent a recording of the original contraband.22

Using the “evidence of approach,” the computer becomes analogous to a video camera recording the user’s activity, rather than a file cabinet as is the case with the “present possession approach.”23 Accordingly, the user possesses the contraband when he or she performs some function to reach out and select the image from the *186Internet, and possession ends when he or she leaves the image.24 In this way, any backup or residual file becomes evidence of possession at a prior point; the file does not represent the literal contraband.25

As a practical matter, the logic of the “evidence of approach” becomes apparent when one considers a hypothetical situation in which an individual visits a bookstore that secretly deals in child pornography, specifically requests a child pornography magazine, sits down to read the magazine and examine its content, and then returns the magazine before leaving.26 If law enforcement obtained a closed-circuit videotape of what transpired, showing the child pornography images in great detail, it would strain credulity to suggest that the above individual could not be charged with possession of child pornography for his possession of the magazine at an earlier time.27 Likewise, a computer user who intentionally accesses child pornography images on a website “gains actual control over the images, just as a person who intentionally browses child pornography in a print magazine ‘knowingly possesses’ those images, even if he later puts the magazine down.”28 Thus, viewing child pornography on a web page constitutes possession of “material which depicts a minor *187or a portion of a minor’s body engaged in any sexually explicit conduct,”29 so long as the evidence supports an inference that the act was wilful and not inadvertent.30

So again, using a present-possession approach in Barton, the cached pornographic files were viewed by this Court as constituting the literal contraband that the defendant was accused of possessing. And the Court in Barton agreed with the defendant that he could not be convicted of knowing possession when “(1) he took no affirmative action to store the images on his computer; (2) he was unaware that the computer had automatically saved those images to the hard drive; and (3) he had no ability to retrieve or access those images.”31 But had this Court applied the evidence-of approach in Barton to consider prior possession, as done in New, Barton’s conviction would have been affirmed if the State presented other circumstantial evidence to show that he reached out and affirmatively sought to access child pornography The evidence of such pornography in the computer cache alone would have been insufficient, but if other evidence existed, it would have been of no consequence that the defendant did *188not (1) store the files on his computer, (2) know that the images were automatically saved to the hard drive, or (3) have the ability to access the images on the hard drive. However, for reasons that were not entirely clear to this Court when it decided New (the panel in New not having the benefit of reviewing Barton's record), the panel in Barton analyzed the case under a present-possession approach. But the facts presented in New permitted this Court to apply the evidence-of approach to consider prior possession in that case.

Decided October 28, 2016. Grisham & Poole, Scott T. Poole, for appellant. Peter J. Skandalakis, District Attorney, Kevin T. McMurry, Robert W. Mooradian, Assistant District Attorneys, for appellee.

Again, under the evidence-of approach used in New, leftover files do not always represent the literal contraband, but instead—when combined with other circumstantial evidence—may represent evidence of prior possession.32 In this regard, the necessity of other circumstantial evidence—in addition to the duty imposed upon prosecutors, judges, and juries—acts as a safeguard against the understandable concern regarding “the prevalence and sophistication of some computer viruses and hackers that can prey upon innocent computer users.”33 But “knowing possession” is mainly an issue of fact, not law, and “the specter of spam, viruses, and hackers must not prevent the conviction of the truly guilty.”34

In conclusion, although Barton is limited to a present-possession approach, it cannot—and should not—be read to “foreclose the State’s ability to prosecute and convict a defendant for prior possession of child pornography when automatic backup files, in addition to other direct or circumstantial evidence, establish same.”35 And to the extent that the bench and bar continue to interpret Barton to do so, this Court may need to one day revisit the holding in that case and explicitly overrule same if it continues to cause substantial confusion on this point.

286 Ga. App. 49 (648 SE2d 660) (2007).

327 Ga. App. 87 (755 SE2d 568) (2014).

Id. at 92-93 (1) (footnotes omitted).

Id. at 93-94 (1) (punctuation and footnotes omitted).

Id. at 95 (1).

Id.

See id. (noting that automatically stored “shadow copies, combined with the expert’s testimony as to LimeWire logs that indicated searches for and downloads of child pornography, the number of child pornography images discovered, the user-installed deletion software and attendant settings, and the fact that [the defendant] photographed B. N. and T. R engaged in ‘strip wrestling,’ presented the jury with circumstantial evidence by which to find that [the defendant] violated OCGA § 16-12-100 (b) by knowingly possessing child pornography at a prior time”).

Ty E. Howard, Don’t Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based on Images Located in Temporary Internet Files, 19 Berk. Tech. L.J. 1227, 1254-55 (V) (A) (1) (Fall 2004).

Id. at 1254 (V) (A) (1).

Id. at 1254-55 (V) (A) (1).

Id. at 1256 (V) (B) (1) (emphasis supplied).

Id. at 1255 (V) (A) (2); see also Wise v. State, 364 SW3d 900, 904 (1) (Tex. Crim. App. 2012) (“Under the first approach, termed a present-possession approach, a court will analyze the sufficiency of the evidence to determine whether a defendant had the knowledge and ability to access the files in their present format. In the context of deleted files, if an ordinary computer could not access files that have been deleted by a user or an automatic computer program, then the defendant could not presently have care, control, or management of the images.” (citations omitted)).

286 Ga. App. at 52 (1).

Howard, supra note 14, at 1253 (V).

Id. at 1253 (V) (footnote omitted).

Howard, supra note 14, at 1255 (V) (A) (2).

Id.

Id.\ see also Wise, 364 SW3d at 905 (I) (“[EJvidence of pornography found in a computer cache could be sufficient to support a conviction because the presence of the images in the cache is evidence that, at some earlier point, a defendant knowingly or intentionally possessed the images by viewing them online.” (emphasis supplied)). Of course, a different analysis applies if the user downloads the image to the computer, in which case possession would continue indefinitely, as in Haynes v. State, 317 Ga. App. 400 (731 SE2d 83) (2012). There, we affirmed a conviction for possession of child pornography when “the evidence showed that the files containing the child pornography on [the defendant’s] computer had been intentionally moved or downloaded to his computer and that the files had been modified on various dates.” Id. at 401 (1).

The “evidence of approach” does not preclude prosecution for possession of residual files that could be considered literal contraband, as when the surrounding circumstances are more akin to continued possession of downloaded images. See State v. Al-Khayyal, 322 Ga. App. 718, 724-25 (744 SE2d 885) (2013) (reversing grant of plea in bar and motion to dismiss when defendant deleted original child pornography files before entering the country, but possessed a computer containing deleted .rar files, and there was evidence that defendant was aware of the location of the deleted .rar files, could have accessed the files with readily available software, and had advanced technical knowledge).

See Howard, supra note 14, at 1265-66 (VI) (A).

Id. at 1267 (VI) (A).

United States v. Kain, 589 F3d 945, 950 (I) (C) (8th Cir. 2009); see also People v. Flick, 790 NW2d 295, 298 (Mich. 2010) (rejecting defendants’ arguments that they “merely viewed” rather than “knowingly possessed” child pornography accessed on Internet web pages because “the many intentional affirmative steps taken by defendants to gain access and control over child sexually abusive material belie[d] their claims that they merely viewed the depictions”); Commonwealth v. Diodoro, 932 A2d 172, 174 (¶ 11) (Pa. Super. Ct. 2007) (“[The appellant’s] actions of operating the computer mouse, locating the Web sites, opening the sites, displaying the images on his computer screen, and then closing the sites were affirmative steps and corroborated his interest and intent to exercise influence over, and, thereby, control over the child pornography.”), aff’d. Commonwealth v. Diodoro, 970 A2d 1100 (Pa. 2009).

OCGA § 16-12-100 (b) (8) (emphasis supplied); see Al-Khayyal, 322 Ga. App. at 722-23 (explaining that OCGA § 16-12-100 (b) (8) has been construed to criminalize the possession or control of data capable of generating images of child pornography); see also Tecklenburg v. App. Div. Super. Ct., 87 Cal. Rptr. 3d 460, 473 (II) (Cal. Ct. App. 2009) (distinguishing California’s statute, which criminalized “knowing) ] possession] or control) ] [of] any matter, representation of information, data, or image ...” (emphasis omitted), with federal statute that “does not make it illegal to knowingly possess or control an image of child pornography; only to knowingly possess the material containing the image” (emphasis supplied)). Cf. OCGA § 16-12-100.1 (criminalizing the electronic transmission of sexually explicit pictures or conversations to minors); OCGA § 16-12-100.2 (criminalizing the use of online services to solicit or attempt to solicit a child for the purposes of committing sexual offenses, and criminalizing online service owners or operators’ intentional or wilful permission to violate this section); State v. Brown, 250 Ga. App. 376, 380 (1) (551 SE2d 773) (2001) (holding, in affirming conviction for sexual exploitation of children by using a computer to send images of child pornography to another person, that OCGA §§ 16-12-100.1 and 16-12-100.2 “are directed primarily at prohibiting direct interactions with minor victims located in Georgia”).

See Tecklenburg, 87 Cal. Rptr. 3d at 473 (II) (holding that evidence established that defendant possessed child pornography images by knowingly viewing images online); see also Flick, 790 NW2d at 305-06 (contrasting the possession of child pornography when there have been affirmative steps taken to view it online with the lack of evidence of possession of child pornography when it is viewed accidentally or inadvertently); State v. Mercer, 782 NW2d 125, 132 (¶ 18) (Wis. Ct. App. 2010) (recognizing the distinction between a person who knowingly seeks out child pornography on a computer, such that he possesses the images, and one who inadvertently and innocently views child pornography).

286 Ga. App. at 50 (1); see also id. at 52 (1) (“[T]here was no way that Barton could have learned of the cache files in the normal course of using his computer. Nor did the State present any circumstantial evidence that would have allowed the jury to infer Barton’s knowledge of these files—i.e., they did not show that Barton was an experienced or sophisticated computer user who would have been aware of this automatic storage process. In short, the State presented no evidence that Barton was aware of the existence of the files at issue, and in doing so, they failed to prove that Barton knowingly possessed these images.”).

But see supra notes 24 & 25.

United States v. Pruitt, 638 F3d 763, 766 (II) (11th Cir. 2011); see also id. (“[PJrosecutors, judges, and juries have a duty to safeguard—as best as they are able—potential defendants when receipt of child pornography might well have been truly inadvertent.”).

Id.

New, 327 Ga. App. at 92-93 (1) (footnotes omitted).