THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 25, 2021
In the Court of Appeals of Georgia
A21A0571. MACKY v. THE STATE.
REESE, Judge.
After a jury found James Macky, Jr., guilty of 25 counts of sexual exploitation
of a minor,1 the Superior Court of Columbia County sentenced him to consecutive 19-
year sentences totaling 475 years, plus one year of probation. Macky appeals from the
subsequent denial of his amended motion for a new trial, arguing that his trial counsel
was ineffective in failing to file a motion to suppress, and that the trial court erred in
imposing multiple punishments. For the reasons set forth infra, we vacate the
judgment and remand for resentencing in light of a recent decision of the Supreme
Court of Georgia in Edvalson v. State.2
1
See OCGA § 16-12-100 (b) (8).
2
310 Ga. 7 (849 SE2d 204) (2020).
Viewed in the light most favorable to the verdict,3 the evidence shows the
following. Detective Charles Woodall, a member of the Georgia Bureau of
Investigation’s Internet Crimes Against Children Task Force, observed that an
internet protocol (“IP”) address associated with Macky was being used to share and
obtain child pornography on peer-to-peer (“P2P”) networks. Woodall requested a list
of files from the user and ultimately downloaded two videos containing child
pornography shared by that user.
Another member of the task force, Agent Charles Kicklighter, executed a
search warrant on November 2, 2016, at Macky’s home, collecting four hard drives
(all held within a custom computer tower) containing numerous files with child
pornography. The first ten counts of the indictment charged Macky with respect to
images contained on a 500-gigabyte hard drive, while Counts 11 to 25 charged him
with respect to 15 videos found on a 750-gigabyte hard drive. Each of the 25 files
contained sexually explicit material involving a minor.
After the jury returned a verdict finding Macky guilty on all 25 counts, the trial
court sentenced him on each count to 20 years, with 19 years to be served in
confinement, followed by one year of probation. The court made the periods of
3
See Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).
2
incarceration consecutive, so that the total sentence was 475 years of incarceration,
followed by 1 year of probation.
In its order denying Macky’s amended motion for new trial, the trial court
noted that Edvalson was pending, but declined to delay ruling on Macky’s motion.
The trial court concluded that Macky “possessed [25] separate, distinct images and
video clips depicting different sexual acts, by and with different children,” and that
merger of the counts was thus inappropriate. This appeal followed.
In order to prevail on such a claim of the ineffective assistance of
counsel pursuant to Strickland v. Washington,4 a criminal defendant
must demonstrate that his counsel’s performance was deficient and that,
but for such deficiency, there is a reasonable probability that the
outcome of the proceeding would have been different; on appeal, this
Court is to accept the trial court’s factual findings and credibility
determinations unless they are clearly erroneous, but is to independently
apply the legal principles to the facts.5
“The doctrine of merger precludes the imposition of multiple punishments
when the same conduct establishes the commission of more than one crime. Whether
4
466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
5
Slan v. State, 316 Ga. App. 843, 844 (2) (730 SE2d 565) (2012) (punctuation
and additional footnote omitted).
3
offenses merge is a legal question, which we review de novo.”6 With these guiding
principles in mind, we turn now to Macky’s claims of error.
1. Macky argues that his trial counsel was ineffective in failing to file a motion
to suppress evidence because the information in the search warrant affidavit was
stale, and thus there was insufficient probable cause to support the search warrant.
Here, in the search warrant affidavit filed on May 2, 2017, Agent Kicklighter
attested that on October 18, 2016, he was assigned the P2P investigation initiated by
Detective Woodall and part of the statewide initiative dubbed Operation Southern
Impact. The packet contained a printed report that indicated Woodall had utilized the
P2P program to obtain downloads of child pornography from a specific IP address,
which was owned by Wide Open West (“WOW”). WOW had identified Macky as the
subscriber. According to Woodall’s report, he was able to obtain two partial
downloads of child pornography from Macky’s IP address on September 12, 2016.
“From July 2016 to September 2016, [Woodall] noted that the previously listed IP
address had numerous files of interest that were available for download.” The
affidavit went on to describe the content of the two downloaded files.
6
Fordham v. State, 352 Ga. App. 520, 526 (3) (835 SE2d 360) (2010) (citation
and punctuation omitted).
4
“When claiming ineffectiveness for failure to file a motion to suppress, an
appellant must establish a strong showing that the evidence would have been
suppressed had a motion to suppress been filed.”7
While a magistrate must consider time as an element of probable cause
when issuing a warrant, the mere passage of time does not equate with
staleness. Rather, the inquiry is as to whether the factual statements
within the affidavit are sufficient to create a reasonable belief that the
conditions described in the affidavit might yet prevail at the time of
issuance of the search warrant.8
Here, the search warrant affidavit specifically indicated the date that Woodall
downloaded the files from Macky’s IP address, so that the magistrate had sufficient
information to evaluate timeliness. Given the totality of the circumstances, including
the fact that the items sought were not perishable, consumable, or disposable, and the
explanation of P2P file sharing in the affidavit, the warrant was not based on stale
7
Bradley v. State, 322 Ga. App. 541, 548 (3) (c) (745 SE2d 763) (2013)
(citation and punctuation omitted).
8
Copeland v. State, 273 Ga. App. 850, 853 (1) (a) (616 SE2d 189) (2005)
(punctuation and footnotes omitted).
5
information.9 Thus, Macky has failed to make a strong showing that the trial court
would have granted a motion to suppress.10
2. While this appeal was pending, the Supreme Court of Georgia decided
Edvalson v. State.11 Although the State concedes that the trial court erred in imposing
consecutive sentences on all 25 counts, the parties disagree as to how Macky should
be sentenced on remand. Specifically, Macky argues that OCGA § 16-12-100 (b) (8)
only permits one prosecution and conviction for a single act of possession, no matter
how many discrete items of child pornography are possessed. The State contends that
Macky should have been sentenced for two separate counts because there is
significant evidence that he began to possess the images that formed the basis of
Counts 1 through 10 at a separate time and in a separate physical location as the
videos that formed the basis of Counts 11 through 25. Under the facts of this case, we
find Macky’s argument persuasive.
Under OCGA § 16-12-100 (b) (8), “[i]t is unlawful for any person knowingly
to possess or control any material which depicts a minor or a portion of a minor’s
9
See Tarvin v. State, 277 Ga. 509, 511 (4) (591 SE2d 777) (2004).
10
See Gerbert v. State, 339 Ga. App. 164, 166 (1) (a) (793 SE2d 131) (2016).
11
310 Ga. 7.
6
body engaged in any sexually explicit conduct.”12 In Edvalson, the defendant was
convicted of possessing 11 digital images depicting a minor engaging in sexually
explicit conduct.13 Each image earned him two convictions: one for possession under
subsection (b) (8) and the other for possession with intent to distribute under
subsection (b) (5).14 The trial court merged the possession counts into the possession
with intent counts, and sentenced him on the remaining 11 counts.15
On appeal, the Supreme Court of Georgia held that the convictions should have
been merged into a single conviction because “the plain language of OCGA §
16-12-100 (b) (5), interpreted in the context of the entire statute, is unambiguous and
permits only one prosecution and conviction for a single act of possession of child
pornography, regardless of the number of images depicted therein.”16 Under OCGA
§ 16-12-100 (b) (5), “[i]t is unlawful for any person knowingly to create, reproduce,
publish, promote, sell, distribute, give, exhibit, or possess with intent to sell or
12
(Emphasis supplied.)
13
310 Ga. at 7.
14
Id.
15
Id.
16
Edvalson, 310 Ga. at 8.
7
distribute any visual medium which depicts a minor or a portion of a minor’s body
engaged in any sexually explicit conduct.”17
The Edvalson Court concluded:
Here, the term “any visual medium” in OCGA § 16-12-100 (b) (5) must
be read in light of the definition provided by the General Assembly in
OCGA § 16-12-100 (a) (5): “‘Visual medium’ means any film,
photograph, negative, slide, magazine, or other visual medium.”
Accordingly, “any visual medium” in paragraph (b) (5) cannot refer to
the qualitative sense of “any,” as that meaning is provided by the
definition in paragraph (a) (1). Instead, “any” in the phrase “any visual
medium” must be interpreted as a quantitative term, implying no specific
quantity and having no limit. [T]he offense is the possession of any
prohibited “visual medium” at all, whether one or one hundred.18
The Court added in a footnote, “because this case concerns only the simultaneous
possession of multiple ‘visual media,’ we state no opinion regarding cases involving
the possession of different visual media in separate places or at separate times.”19
17
(Emphasis supplied.)
18
Edvalson, 310 Ga. at 10 (footnote omitted; emphasis in original); see also
OCGA § 16-12-100 (a) (5) (“‘Visual medium’ means any film, photograph, negative,
slide, magazine, or other visual medium.”).
19
Id. at 10, n. 8.
8
As an initial matter, as discussed in Edvalson, OCGA § 16-12-100 (b) (5) refers
to “any visual medium[,]” which subsection (a) (5) defines as “any film, photograph,
negative, slide, magazine, or other visual medium.” By contrast, Macky was
convicted under § 16-12-100 (b) (8), which refers to “any material[.]” That term is not
defined in § 16-12-100. We conclude that the logic of Edvalson still applies. Reading
the statute in a natural and ordinary way, the gravamen of the offense is the general
possession of material, rather than the specific quantity possessed.20 Thus, § 16-12-
100 (a) (8) is unambiguous and permits only one prosecution and conviction for the
simultaneous possession of multiple “material.”21
Further, there was no evidence in this case regarding when Macky downloaded
the files that formed the basis of the charges in the indictment. The State concedes
that it is possible that the two types of media (the images that formed the basis of
Counts 1-10 and the videos that formed the basis of Counts 11-25) were downloaded
simultaneously.
20
See Coates v. State, 304 Ga. 329, 331-332 (818 SE2d 622) (2018)
(construing OCGA § 16-11-131 (b) (2014)).
21
See id.
9
Accordingly, under Edvalson,22 we vacate Macky’s convictions and sentences
for the 25 counts under OCGA § 16-12-100 (b) (8), and remand the case for the trial
court to merge the convictions into a single conviction consistent with our opinion.
Judgment vacated, and case remanded with direction. Doyle, P. J., and Brown,
J., concur.
22
See Edvalson, 310 Ga. at 10.
10