Taylor v. the State , 338 Ga. App. 804 ( 2016 )

SECOND DIVISION
BARNES, P. J.,
BOGGS and RICKMAN, 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
October 11, 2016
In the Court of Appeals of Georgia
A16A0880. TAYLOR v. THE STATE.
BOGGS, Judge.
In the third appearance of this case before this court,1 Harry Taylor appeals
from his convictions of 6 counts of aggravated child molestation, 11 counts of child
molestation, 11 counts of sexual exploitation of children, 1 count each of aggravated
sexual battery, sexual battery, and criminal attempt, involving 15 minor victims. He
contends that the trial court erred in (1) its balancing of the speedy trial factors
required by Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972) and
1
In Taylor v. State, 321 Ga. App. 736 (738 SE2d 347) (2013) (“Taylor I”), we
dismissed Taylor’s attempt to directly appeal the trial court’s order denying his pre-
trial plea in bar based upon an alleged violation of his constitutional right to a speedy
trial. In Case No. A15A1305 (“Taylor II”), an unpublished opinion, we remanded this
case to the trial court for reconsideration based upon errors and deficiencies in its
order denying Taylor’s plea in bar.
Doggett v. United States, 505 U. S. 647 (112 SCt 2686, 120 LE2d 520) (1992); and
(2) denying his motion to suppress based upon deficiencies in the search warrant
issued for his home. For the reasons explained below, we affirm.
1. Taylor contends that the trial court abused its discretion in its second ruling
on the speedy trial issue in: (a) weighing the length of the delay lightly against the
State; (b) weighing the reason for the delay benignly against the State; (c) weighing
the assertion of his right to a speedy trial heavily against him; (d) weighing the
prejudice factor heavily against him; and (e) balancing of the four factors to conclude
that no speedy trial violation occurred.
Application of the Barker-Doggett factors
to the circumstances of a particular case is a task committed principally
to the discretion of the trial courts, and it is settled law that our role as
a court of review is a limited one. Under our precedents, we must accept
the factual findings of the trial court unless they are clearly erroneous,
and we must accept the ultimate conclusion of the trial court unless it
amounts to an abuse of discretion, even though we might have reached
a different conclusion were the issue committed to our discretion.
(Citations and punctuation omitted.) State v. Alexander, 295 Ga. 154, 155-156 (758
SE2d 289) (2014). Based upon this deferential standard of review, we find no merit
in Taylor’s argument that the trial court should have granted his plea in bar.
2
In Taylor II, we summarized the relevant facts concerning Taylor’s speedy trial
claim as follows:
The record reflects that Taylor was [first] arrested on July 24,
2008. He was first indicted on October 15, 2008; however, due to what
the State admitted were errors in the first indictment, Taylor was
reindicted on January 7, 2009. And discovery in his case ensued from
October 31, 2008, to August 2, 2010.
On January 30, 2009, Taylor filed, among numerous other
motions, a motion to suppress, which he later amended and recast on
August 12, 2010. The judge first assigned to handle Taylor’s case held
hearings on this motion on August 16, 18, and 30, 2010, but did not
immediately issue a decision. Additionally, in October 2009, Taylor
consented to a continuance due to the still ongoing discovery, and he
alleged that the State’s compliance was deficient as to 19 different items.
Thereafter, Taylor consented to three more continuances.
In February 2010, Taylor consented to a continuance to allow for
specially set motions proceedings and due to his divorce trial. Two
months later, in April 2010, Taylor consented to a continuance again
because both he and the State believed the case would require one to
two days to hear all pretrial motions and that the trial itself would last
longer than one week. And in February 2011, Taylor consented to a
continuance due to the continued unavailability of a sufficiently long
trial calendar and because he was still awaiting a ruling on his motion
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to suppress. Finally, on December 16, 2011, the first-assigned judge
denied Taylor’s [amended and recast] motion to suppress evidence.
When Taylor received, via e-mail, the court’s order denying his
motion to suppress, he learned the identity of the judge’s staff attorney
and recognized that she was a former assistant district attorney who had
previously been employed with the Gwinnett County District Attorney’s
office and had some involvement in his case. Therefore, on December
20, 2011, Taylor filed a motion to recuse the judge. This motion was
granted on February 17, 2012. Then, on February 2[2], 2012, the
second-assigned judge voluntarily recused without explanation in
accordance with Uniform Superior Court Rule 25.7, as did the third-
assigned judge on February 27, 2012.
On February 27, 2012, Taylor filed a motion for a de novo hearing
and review of his previously denied motion to suppress. And on March
12, 2012, the fourth-assigned judge voluntarily recused without
explanation. On March 15, 2012, the fifth-assigned judge set a hearing
on Taylor’s February 27, 2012 motion for April 5, 2012. But then, after
the hearing, on April 6, 2012, the [fifth]-assigned judge recused at the
State’s request after realizing a potential conflict of interest.
On April 18, 2012, the [sixth]-assigned judge set the case down
for a May 29 status hearing and for trial on August 6, 2012. After
denying a motion to recuse the [sixth]-assigned judge, on June 15, 2012,
that judge granted Taylor’s request for a de novo hearing on his
amended and recast motion to suppress and scheduled same for July 10,
4
2012. Thereafter, on July 27, 2012, the [sixth]-assigned judge denied
Taylor’s recast and amended motion to suppress.
On July 26, 2012, Taylor for the first time asserted his right to a
speedy trial when he filed a plea in bar and/or motion to dismiss,
alleging that his Sixth Amendment right to a speedy trial had been
violated. Following a hearing on September [6], 2012, Taylor’s motion
was denied on September 26, 2012 by a [seventh]-assigned judge. On
October 16, 2012, Taylor filed a direct appeal to this denial, but in light
of the Supreme Court of Georgia’s decision in Sosniak v. State,[292 Ga.
35, 40 (2) (734 SE2d 362) (2012), his appeal was dismissed on February
14, 2013.
Following the case’s return to the trial court, Taylor filed, on
November 21, 2013, a second amended motion to suppress, raising new
arguments as to why the evidence against him should be suppressed.
This motion was denied on April 28, 2014. Thereafter, Taylor waived
his right to a trial by jury and, following a [] bench trial [based upon
stipulated facts and admitted photographs], was adjudicated guilty of the
offenses set forth supra.
(Footnotes omitted.) Taylor II, slip opinion at 2-5. In Taylor II, this court issued a 26-
page unpublished opinion in which we exhaustively considered the trial court’s
rulings on each of the Barker factors and remanded the case to the trial court “to
exercise its discretion again using properly supported factual findings and the correct
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legal analysis.” (Punctuation and footnote omitted.) Id. at 25. In a 14-page order, the
trial court diligently and faithfully addressed each of the deficiencies outlined by this
court in Taylor II.
Having outlined the procedural history of this case, we now examine the trial
court’s analysis of each of the Barker factors.
(a) Length of Delay. In Taylor II, we instructed the trial court to
assess whether the delay in Taylor’s case was uncommonly long and/or
excessive, keeping in mind that a delay is considered uncommonly long
under the test to the extent to which the delay stretches beyond the bare
minimum needed to trigger judicial examination of the claim. The court
must then consider the weight of this factor.
(Citations, punctuation and footnotes omitted.) Slip opinion at 11. The trial court
concluded “that the delay in this case was uncommonly long and weigh[ed] this factor
against the state.” It then exercised its discretion to “weigh[] this factor lightly against
the state given the amount of information to be searched on Taylor’s computers, the
number of child victims, and the number of counts charged.”
As the trial court recognized, the length of “delay that can be tolerated in a
particular case depends to some extent on the complexity and seriousness of the
charges in that case.” (Citations omitted.) State v. Buckner, 292 Ga. 390, 393 (3) (a)
6
(738 SE2d 65) (2013). And there is no bright-line rule that all uncommonly long
delays must be weighed heavily against the State. Milner v. State, 329 Ga. App. 654,
658 (2) (765 SE2d 790) (2014) (physical precedent only). See also Stewart v. State,
310 Ga. App. 551, 553-554 (2) (a) (713 SE2d 708) (2011) (trial court did not abuse
discretion by declining to weigh four and a half year long delay heavily against State).
As this case involved a 32-count indictment with 15 child victims and voluminous
computerized information, we cannot conclude that the trial court abused its
discretion by weighing the length of the delay lightly against the State.
(b) Reason for Delay. Another reason for our remand of this case back to the
trial court related to its analysis of the reason for the delay in trying Taylor. Taylor
II, slip opinion at 12-16. We stated:
Thus, although the trial court made some findings of fact as to the
reasons for the delay, it ignored others. The court also failed to conclude
whether this factor weighed against either the State or Taylor, or, in the
alternative, was neutral as against both sides.
The trial court’s analysis mentions the five months between
Taylor’s arrest and re-indictment, but it does not weigh this period
against the State or Taylor. Then, the trial court purports to weigh the
entire fifteen-and-one-half month delay to obtain a ruling on Taylor’s
motion to suppress against the State before vaguely stating that Taylor
7
“is not blameless for the delay,” apparently holding Taylor responsible
for continuances and pretrial motions. The trial court then summarily
weighs the fact that Taylor consented to continuances for approximately
one year against him, but then fails to assess the reasons for these
continuances before doing so. Additionally, though the trial court finds
that some of the delay was due to the negligence of the State, it does not
specify what amounted to negligence or the amount of weight this
conclusion receives. Finally, the trial court fails to indicate whether it
considered the delay between the initial denial of Taylor’s motion to
suppress by the first-assigned judge and the denial of his plea in
bar/motion to dismiss—a period that accounts for approximately nine
months of the fifty-month delay.
Given the scant findings of fact in support of the trial court’s
decision, we are constrained to remand so that the court can reconsider
the circumstances giving rise to the delay and reassess the causes for the
delay with regard to the principles outlined supra before reweighing this
factor.
(Footnotes omitted.) Slip opinion at 14.
Upon remand, the trial court separately analyzed and weighed the following
periods of delay: the five months between arrest and re-indictment; the 15-month
delay for a ruling on Taylor’s motion to suppress; delays from continuances and the
role incomplete discovery played in the continuance requests; and delays from
8
multiple motions to recuse; delay from a second motion to suppress; and delay from
a change in defense counsel. It then concluded that the portions of the delay attributed
to the State weighed benignly against the State and that the portions of the delay
attributed to Taylor should also be weighed benignly.
Taylor contends the trial court erred by failing to weigh the reason for the delay
in this case heavily against the State. It is true, as Taylor asserts, that “the weight we
assign to official negligence compounds over time as the presumption of evidentiary
prejudice goes. Thus, our toleration of such negligence varies inversely with its
protractedness.” (Citation, punctuation and footnote omitted.) Grizzard v. State, 301
Ga. App. 613, 615-616 (2) (b) (688 SE2d 402) (2009). For example, in Grizzard, we
held
if ever there were a case in which the assigned to official negligence
should be compounded, this is the case. . . . [T]he eight-year delay here
– even if reduced by one year to account for Grizzard’s successful
appeal – mandated that the trial court should have compounded the
weight and weighed this factor heavily against the State, not merely
benignly.
(Emphasis in original.) Id. at 616 (2) (b). In that case, eight years elapsed before the
defendant was brought to trial, and for six of those eight years, there was a complete
9
absence of any activity on the part of the State. In contrast, the longest period of
complete inactivity on Taylor’s case was approximately one year. And in numerous
other cases, we have concluded that a trial court did not abuse its discretion by
weighing a lengthy delay caused by the State’s negligence lightly or benignly against
the State. See Milner, supra, 329 Ga. App. at 658-659 (2) (b) (no abuse of discretion
in weighing ten-year delay benignly against State); Moore v. State, 314 Ga. App. 219,
221-222 (2) (b) (723 SE2d 508) (2012) (no abuse of discretion in weighing benignly
against State an 84-month delay caused by its negligence); Stewart v. State, supra,
310 Ga. App. at 555-556 (2) (b) (713 SE2d 708) (2011) (trial court did not abuse
discretion by failing to weigh heavily against the State a five-year delay largely
attributable to the State’s negligence).
Based upon the unusual facts and circumstances of this case and, in particular,
the necessity for sophisticated software to conduct a forensic examination of Taylor’s
computers and the necessity for five trial judges to recuse, the trial court did not abuse
its discretion by failing to weigh this factor heavily against the State. See id.
(c) Assertion of Speedy Trial Right. In Taylor II, we concluded that the trial
court did not abuse its discretion “by weighing this factor against Taylor when the
record demonstrates that the State was responsive to and ultimately compliant with
10
Taylor’s discovery requests.” (Footnote omitted.) Slip opinion at 19. We remanded,
however, for the trial court to clarify whether it “simply weighed this factor against
Taylor or heavily weighed it against him.” Id. at 20. The trial court subsequently
clarified that it weighed this factor heavily against Taylor and declined to exercise its
discretion to mitigate the weight based upon the length of time it took the State to
respond to Taylor’s discovery requests.
We find no merit in Taylor’s assertion in this appeal that the trial court was
required to mitigate the weight of this factor. The Supreme Court of Georgia has
“acknowledged that the weight to be attributed to this factor may be mitigated in
some cases, and whether the circumstances of a particular case warrant any mitigation
is a question committed to the sound discretion of the trial court. [Cits.]” Buckner,
supra, 292 Ga. at 397-398 (3) (c). Here, the record shows that Taylor received all of
the State’s discovery by August 2010, but did not demand a speedy trial until July
2012, almost two years later. Under these circumstances, the trial court was
authorized to find Taylor’s claim that his failure to file a speedy trial demand should
be mitigated by the State’s delay in providing discovery “unavailing.” See Williams
v. State, 290 Ga. 24, 27 (3) (717 SE2d 640) (2011) (affirming trial court’s decision
to weigh this factor heavily against the defendant even though defendant contended
11
he could not have asserted right sooner because discovery was incomplete); Williams
v. State, 300 Ga. App. 797, 798 (c) (686 SE2d 407) (2009) (trial court authorized to
conclude no connection between State’s failure to comply with discovery requests
and defendant’s late assertion of right to speedy trial).
(d) Prejudice. In Taylor II, we affirmed the following conclusions of the trial
court with regard to the prejudice factor: Taylor suffered oppressive pretrial
incarceration; he did not suffer undue concern or anxiety; and his defense was not
impaired by the delay. Slip opinion at 20-24. We remanded, however, for the trial
court “to ultimately determine whether Taylor suffered prejudice and weigh this
factor as a whole.” Id. at 24. The trial court complied with this direction by stating in
its second order:
there is no evidence of any prejudice to Taylor beyond the oppressive
pre-trial incarceration. While that first sub-factor weigh[]s against the
State, the other two sub-factors must weigh[] against Taylor. When
combining the three sub-factors[,] this court holds that the pretrial
incarceration, while oppressive, does not carry the day for Taylor. . . .
[T]he incarceration did not affect Taylor’s ability to communicate with
his lawyer, did not prevent him from reviewing the case file, did not
prevent him from completing his paralegal course, and did not result in
the loss of any evidence, therefore the first factor must weigh lightly
against the State. The second sub-factor, since there is no evidence that
12
Taylor experienced [] undue anxiety or concern as a result of his
incarceration[,] this factor must weigh heavily against Taylor. Finally,
in the third sub-factor, Taylor has presented no evidence to support any
conclusion that his case has been impaired by the delay, thus, this factor
must weigh heavily against Taylor. . . . Based upon the foregoing, the
prejudice factor must weigh heavily against Taylor.
(Citations, punctuation and footnote omitted.)
In this appeal, Taylor contends that this trial court abused its discretion by
failing to weigh this factor heavily against the State. We disagree. It is well-
established that of the three factors considered when determining prejudice to the
defendant, harm to the accused’s defense is the most serious and important. See
Brewington v. State, 288 Ga. 520, 524 (3) (b) (iv) (705 SE2d 660) (2011); Weis v.
State, 287 Ga. 46, 55 (1) (d) (694 SE2d 350) (2010). And while Taylor was placed
in solitary confinement,2 there is no evidence that he was exposed to substandard
conditions while incarcerated, such as a lack of adequate food, climate control, proper
medical care, or cleanliness. See Weis, supra, (noting substandard conditions as
2
Taylor testified that he was allowed leave his solitary jail cell approximately
three times a day for about an hour each time and go into a day room and an enclosed
recreation yard. During this free time, he was allowed to take showers, shave, talk to
other people, buy food from the commissary store, and make telephone calls.
13
means of proving oppressive pretrial incarceration); State v. Ariegwe, 338 Mont. 442,
478-479 (I) (C) (4) (i) (167 P3d 815) (2007) (providing definition of substandard
conditions for speedy trial analysis). And as recognized by our Supreme Court,
oppressive pretrial detention, standing alone does not require “an automatic inference
of enough prejudice to balance that factor in a defendant’s favor without proof of sub-
standard conditions or other oppressive factors beyond those that necessarily attend
imprisonment.” (Citations and punctuation omitted.) Boseman v. State, 263 Ga. 730,
733 (1) (d) (438 SE2d 626) (1994), overruled on other grounds, Sosniak, supra, 292
Ga. at 40 (2). Similarly, solitary confinement does not mandate a finding that the
prejudice prong of the speedy trial analysis be weighed heavily against the State. Cf.
Wilson v. State, 148 Md. App. 601, 638-639 (II) (814 A2d 1) (2002). Accordingly,
we conclude that the trial court did not abuse its discretion with regard to the
prejudice factor. See Hall v. State, 240 Ga. App. 356, 358 (3) (d) (523 SE2d 409)
(1999).
(e) Balancing the Factors.
At the conclusion of its detailed order, the trial court carefully and thoroughly
balanced the Barker factors and explained its reasons for concluding that Taylor’s
right to a speedy trial had not been violated:
14
When combining the weight given to each factor, this court holds the
first prong, (1) presumptive prejudice, required the court to balance the
remaining Barker factors, (2) the length of the delay, based upon
Georgia precedent this court is constrained to weigh this prong against
the State, however, this court weighs this prong lightly or benignly
against the State for the reasons stated, supra, (3) the reason for the
delay, this court holds that both the State and Taylor were partly
responsible for portions of the delay in this case, for the reasons stated,
supra, this court weighs this prong lightly or benignly against the State
and Taylor for their respective roles in the delay, (4) prior assertion of
the right to a speedy trial, this court weighs heavily against Taylor.
Taylor’s argument that he could not assert his right to a speedy trial
because of delayed discovery is unavailing to this court and, thus, this
factor weighs heavily against Taylor, (5) prejudice to the defendant,
despite what the court feels was oppressive pre-trial incarceration, this
court holds that there is no evidence that Taylor suffered any undue
anxiety or concern, or that Taylor’s case was prejudiced by the delay or
the incarceration, thus, this court weighs this factor heavily against
Taylor.
When weighing all of the factors together, this court concludes
that Taylor has failed to satisfy the Barker - Doggett test and hereby
DENIES Taylor’s plea in bar and demand for discharge and acquittal.
While we recognize that this was a case involving lengthy solitary confinement
before trial, “we must be mindful that no one factor is sufficient to sustain a speedy
15
trial claim” and that the trial court is “required to engage in a difficult and sensitive
balancing process of all four factors.” (Citations and punctuation omitted.) Franklin
v. State, 305 Ga. App. 354, 362 (1) (e) (699 SE2d 575) (2010). Based upon the
complexity of the multi-count indictment involving 15 separate victims, Taylor’s
failure to timely assert his right to a speedy trial, and the lack of any actual prejudice
to his defense, we cannot say that the trial court’s ultimate conclusion amounts to an
abuse of discretion. See Jenkins v. State, 294 Ga. 506, 513 (2) (c) (755 SE2d 138)
(2014); Boseman, supra, 263 Ga. at 734 (1) (e). Additionally, to the extent it could be
concluded that the trial court failed to expressly consider presumed prejudice when
balancing and weighing the factors, we conclude that a second remand would serve
no purpose because even taking into account the presumed prejudice, the trial court
“would have had no discretion to reach a different judgment. [Cits.]” Ward v. State,
325 Ga. App. 890, 894 (2) (e) (756 SE2d 21) (2014). See also Phan v. State, 290 Ga.
588, 596 (1) (e) (723 SE2d 876) (2012); Leopold v. State, 333 Ga. App. 777, 784 (1)
(e) (777 SE2d 254) (2015).
2. Taylor asserts that the trial court erred by denying his motion to suppress for
two reasons: (a) the affidavit submitted with the application for a search warrant of
his home failed to establish that Taylor resided at the address to be searched; and (b)
16
the affidavit failed establish that evidence of child molestation and sexual battery
would be on the computers, cameras, and electronic storage devices listed on the
warrant. We disagree.
The magistrate’s task in determining if probable cause exists to issue a
search warrant is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him,
including the “veracity” and “basis of knowledge” of persons supplying
hearsay information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. Our duty in
reviewing the magistrate’s decision in this case is to determine if the
magistrate had a “substantial basis” for concluding that probable cause
existed to issue the search warrants. A magistrate’s decision to issue a
search warrant based on a finding of probable cause is entitled to
substantial deference by a reviewing court. The test for probable cause
is not a hypertechnical one to be employed by legal technicians, but is
based on the “factual and practical considerations of everyday life on
which reasonable and prudent men act.” Moreover, even doubtful cases
should be resolved in favor of upholding a warrant.
(Citations and punctuation omitted.) State v. Hunter, 282 Ga. 278 (646 SE2d 465)
(2007).
(a) Taylor’s argument with regard to the affidavit’s failure to establish that he
resided at the address listed as the location to be searched overlooks the fact that the
17
detective in this case submitted a combined “AFFIDAVIT AND APPLICATION
FOR A SEARCH WARRANT,” the entirety of which was under oath, as well as an
“Attachment A,” which was also under oath. In our view, the trial court correctly
concluded “that a sufficient nexus, or connection, between the items sought and the
place to be searched, existed so as to support a conclusion of probable cause for
issuance of the search warrant for the residence.” As the trial court explained:
The supporting affidavit and application for search warrant here are
combined into one document and specific facts, as provided by victim’s
statements, connecting this Defendant to the crimes of Child
Molestation, and/or Sexual Battery committed at Defendant’s residence
are detailed in “Attachment A,” expressly incorporated into the affidavit
and application by reference. The affiant avers in “Attachment A” that,
based on the recited facts, probable cause exists to “believe that a crime
has been committed and that there may be evidence to support such
crimes at said location.”
Page 2 of the affidavit and application provides that “the facts
establishing probable cause in searching for and seizing the foregoing
specifically described person(s), property, items, articles, instruments
connected with the foregoing crime(s) at the location described herein
are: SEE ATTACHMENT ‘A.’”
This express language is immediately followed by the physical
address and description of the location.
18
(Emphasis supplied.)
Although our research revealed no Georgia case addressing a similar alleged
deficiency in a warrant application, other jurisdictions have applied a common-sense
approach to resolving the issue when the affidavit fails to state explicitly that an
address to be searched is the residence of the suspect. See State v. Trujillo, 150 N.M.
721, 720-728 (I) (266 P3d 1) (2011); United States v. Hunter, 86 F3d 679, 681-682
(7th Cir. 1996). These courts have concluded that when the affidavit describes only
one place connected to the suspect, such as a residence, and lists a specific address
to be searched, a connection between the address described where evidence can be
found and the probable cause outlined in the affidavit “is the only logical conclusion
supported by a common-sense reading of the affidavit.” Trujillo, 150 N. M. at 726,
citing Hunter, supra, 86 F3d at 682. We find the following reasoning by the New
Mexico Supreme Court persuasive:
Barring a hypertechnical reading of the affidavit, an inference that
the residence described is the same as the residence where evidence can
be found, is much more reasonable than its opposite—that the residence
described in such painstaking detail actually has no relationship to the
events of this case. We think the reviewing judge was well within his
rights to draw the rational inference and avoid the irrational.
Understandably, the reviewing judge was concerned that “there was no
19
indication in the affidavit that Defendant lived at this address, that he
was presently at that address or had been at that address sometime in the
past.” However, considered in context, what else could the detective
have intended to say? More significant still, what other inference could
the issuing judge reasonably have come to?
Simply put, it is a stretch to draw the opposite inference; one must
work hard not to infer that 1208 Juanita SW is “the residence” where all
these criminal acts occurred and where incriminating evidence can be
found. Deference is due under the circumstances, and his decision to
issue the warrant is supported by a substantial basis in the record.
(Punctuation omitted.) Trujillo, 266 P3d at 7. For these reasons, the trial court did not
err by denying Taylor’s motion to suppress on this ground.
(b) We find no merit in Taylor’s contention that the application and affidavit
failed to establish probable cause that evidence of the offenses of child molestation
and sexual battery would be found on the computers, cameras, and electronic storage
devices listed in the warrant. Taylor asserts that there is no information in the
affidavit connecting his computer “in any way to the alleged conduct” and that the
detective misrepresented in her affidavit that one of the victims described Taylor as
having a digital camera.
20
“[A]n affidavit is presumed valid in the absence of evidence that it contained
deliberate falsehoods, was made with reckless disregard for the truth, or that the
affiant consciously omitted material facts that, if included, would have indicated the
absence of probable cause.” (Citation, punctuation and footnote omitted.) Jarrett v.
State, 299 Ga. App. 525, 533 (7) (c) (683 SE2d 116) (2009). Here, the detective stated
under oath in “Attachment A” that a victim stated, in reference to photographs taken
by Taylor while boys were undressing: “Mr. Taylor showed him one of the pictures
on the screen on the back of a black digital camera.” In its order denying Taylor’s
motion to suppress, the trial court found:
the evidence showed that Defendant took at least one photograph of the
victim and showed said photograph to the victim. Such evidence
demonstrates the Defendant’s ability to record photographs. . . . The lack
of an averment stating that child molesters generally use the computer
in furtherance of their crime does not negate the connection and
sufficiency here.
(Citations omitted.) As the State eloquently argues in its brief, there is no evidence
that the detective’s affidavit contained deliberate falsehoods or was made with a
reckless disregard for the truth:
While the detective stated that [the victim] never said the words “digital
camera,” she also testified during cross-examination, that [the victim]
21
said he was able to see his picture on the back of the camera. So, despite
the testimony of the detective that [the victim] said it was an “old-timey”
camera, the fact that he could see his picture immediately on the back of
the camera would reasonably lead the detective to know that Appellant
was using a Digital SLR camera that has the appearance of an old 35
millimeter camera, but is, in fact, digital with a viewing window on the
back of the camera from which a person may view a photograph just
taken.
And it is a minor, common-sense inference to conclude that a person taking nude
photographs using electronic devices that are meant to be connected to a computer
would also store the photographs on a computer. Based upon this reasonable
inference drawn from the facts before the magistrate, we find no merit in Taylor’s
claim that there was no probable cause to search his computers. See Marlow v. State,
288 Ga. 769, 770 (2) (707 SE2d 95) (2011) (“An officer’s inference that items sought
will be at the place to be searched requires no more than ‘a fair presumption to be
reasonable.’ [Cit.]”)
Judgment affirmed. Barnes, P. J., and Rickman, J., concur.
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