Beaver v. the State , 330 Ga. App. 496 ( 2014 )

FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and MCMILLIAN, J.
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/
December 18, 2014
In the Court of Appeals of Georgia
A14A1509. BEAVER v. THE STATE.
MCMILLIAN, Judge.
Following a jury trial in November 2012, Gregory Beaver was convicted of 15
counts of sexual exploitation of children and sentenced to 20 years, 15 to serve.
Beaver timely filed a motion for new trial , which the trial court denied. On appeal,
Beaver asserts that (1) the evidence was insufficient to sustain his convictions and (2)
the trial court erred in allowing the jury to view portions of pornographic videos
recovered from his computer. Finding no error, we affirm.
Viewed in the light most favorable to the jury’s verdict,1 the evidence shows
that Forsyth County Sheriff’s Office Investigator Jeffrey Roe conducted
investigations over the internet as a member of the Internet Crimes Against Children
1
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
Task Force. As part of his investigations, Roe worked to identify computers that
contained suspected child pornography. In particular, the task force members looked
for “file sharing” programs, which allow computers on the same network to access
content from other computers. LimeWire, which was later confirmed to have been
installed on the computer used by Beaver, was such a program. At trial, Roe
explained how LimeWire works, including how users search for and download
particular files. He also explained that each file has a “hash value,” which is a
numerical value unique to every file, much like a digital fingerprint. As a result of his
investigation, Roe identified an IP2 address that was utilizing the LimeWire program
to access files that he suspected contained child pornography. The IP address
belonged to Judy Vess, Beaver’s mother. At that time, Beaver was living at his
mother’s home, along with his wife, Christina Deal, and her young daughter.
Roe then handed the information over to local investigator Katria Johnson, who
executed a search warrant at Vess’s home in May 2010. GBI forensic computer
specialist Vickie Adams examined two computers found at that address. The one in
Vess’s office did not contain any evidence of child pornography. However, the
2
IP stands for internet protocol. Roe explained that it is like a telephone
number for a computer and that no two computers on the internet maintain the same
IP address at the same time.
2
computer found inside Beaver’s bedroom was ultimately found to contain known
child pornography3 in five separate locations: a folder labeled “Chrissie music
folder,” a LimeWire saved folder, the recycle bin, a folder containing incomplete
downloads, and the computer’s unallocated space. Adams was able to determine that
approximately 54 pictures and 23 videos had been downloaded between May 2009
and May 2010.4 She testified as to the dates and times of the downloads, and short
portions of some of the videos were briefly displayed to the jurors.
At trial, Deal testified that she and Beaver met in March 2009, and he moved
in with her the following month. At the time, she was living with her parents and her
infant daughter. She and Beaver married in June 2009 and continued living in a
converted garage in the back of her parents’ home. In 2008, Deal’s brother and father
had built her a computer so that she could go back to school. She explained that she
3
Those files had a known hash value, which means that the victims depicted
in the files had been previously identified by the National Center for Missing and
Exploited Children or the files had previously been used in a case and deemed child
pornography. At trial, pediatrician Dana Hogan testified for the State as an expert in
determining children’s ages using the Tanner Scale. In her opinion, the children
depicted in the materials described in each of the remaining counts of the indictment
ranged in age from 6 years to 16 years.
4
The State ultimately indicted Beaver on 19 counts of sexual exploitation of
children in violation of OCGA § 16-12-100, but nolle prossed four counts of the
indictment just prior to trial.
3
downloaded LimeWire right after she received the computer so that she could
download music. However, once Beaver moved in with her, whenever she wanted to
download new music, she would ask Beaver to download it for her. Although her
computer was password protected, Beaver knew the password.
Beaver was not employed and would stay at home and use the computer daily.
Deal began working in September 2009 and would sometimes not return home until
after her shift ended at midnight. She often saw Beaver using the computer when she
woke up in the morning and again when she went to bed at night. In January 2010,
they moved to Vess’s house where she, Beaver, and her daughter shared a bedroom.
She brought her computer with them, and Beaver continued to use it daily.
Beaver was arrested not too long after they moved in with Vess, but returned
at approximately midnight on March 18, 2010.5 Deal testified that she was upset
when Beaver immediately began using the computer again as soon as he came home
and stayed on the computer after she went to sleep. The State presented stipulated
evidence that Beaver was in fact incarcerated three separate times after he married
Deal: (1) from August 3, 2009 to August 13, 2009; (2) from December 1, 2009 to
December 22, 2009; and (3) from February 27, 2010 to March 18, 2010. No files
5
That arrest was unrelated to the charges brought in this case.
4
containing child pornography that were located on the computer found in Beaver’s
bedroom were downloaded during any of those three periods of incarceration, but one
such file was downloaded just hours after Beaver was released from jail on March 18,
2010. The jury convicted Beaver on all counts, and the trial court denied his
subsequent motion for new trial. This appeal followed.
1. We first address Beaver’s challenge as to the sufficiency of the evidence.
When a criminal defendant challenges the sufficiency of the evidence
supporting his or her conviction, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. The jury, not this Court, resolves conflicts
in the testimony, weighs the evidence, and draws reasonable inferences
from basic facts to ultimate facts. As long as there is some competent
evidence, even though contradicted, to support each fact necessary to
make out the State’s case, the jury’s verdict will be upheld.
(Citations and punctuation omitted; emphasis in original.) Wright v. State, 302 Ga.
App. 332, 332 (690 SE2d 654) (2010).
Beaver claims that the State failed to exclude every other reasonable hypothesis
save that of his guilt pursuant to OCGA § 24-4-6.6 However,
6
This case was tried under Georgia’s previous Evidence Code. Former OCGA
§ 24-4-6 provided that, “[t]o warrant a conviction on circumstantial evidence, the
5
[q]uestions as to the reasonableness of hypotheses are generally to be
decided by the jury which heard the evidence and where the jury is
authorized to find that the evidence, though circumstantial, was
sufficient to exclude every reasonable hypothesis save that of guilt, that
finding will not be disturbed unless the verdict of guilt is insupportable
as a matter of law.
(Citation and punctuation omitted.) Wright, 302 Ga. App. at 333.
Beaver argues that there are other reasonable hypotheses to explain how the
child pornography came to be on the computer. Namely, a computer virus could have
been responsible for downloading the files, or other people, including Deal’s two
brothers – who were computer savvy, did not like him, and had access to the
computer – could have downloaded the files. However, Adams, a GBI expert in
computer forensics, explained that, although there were viruses on the computer,
which were “very common,” there was no evidence that a virus had downloaded any
of the illegal files. Adams concluded that, because only some of the files were
deleted, and other files were found in various folders and downloaded on multiple
proved facts shall not only be consistent with the hypothesis of guilt, but shall
exclude every other reasonable hypothesis save that of the guilt of the accused.”
Former OCGA § 24-4-6 is carried forward in the new Evidence Code as OCGA § 24-
14-6.
6
days, they were not the result of a virus. Moreover, she had never seen a case in
which a virus conducted a search for child pornography on a file-sharing program and
then downloaded the files onto someone’s computer. She also found no evidence that
anyone had “hacked” into the computer.
In addition, Deal and her mother both testified that they did not download child
pornography onto the computer. Vess likewise testified that she never downloaded
or viewed child pornography on the computer. Deal’s brother who helped build the
computer testified that it was new and “clean” when he gave it to his sister. He moved
out of his parents’ house in 2004 or 2005 and never remotely accessed the computer.
Deal’s other brother also testified at trial and stated that he never lived at his parents’
house while Beaver was there, he never used the computer when he visited, and he
never remotely accessed it. Both brothers specifically denied downloading child
pornography onto the computer.
While it may have been possible for someone else to have learned the
computer’s password, gained access to the computer, and downloaded the illegal files
beginning just one month after Beaver moved in with Deal and only on days when
Beaver was not incarcerated, “whether such a hypothesis was reasonable or
improbably coincidental was for the jury to determine.” Wright, 302 Ga. App. at 334.
7
See also McNeal v. State, 326 Ga. App. 429, 432 (1) (756 SE2d 660) (2014) (“In
order to support a conviction, such circumstantial evidence does not have to exclude
every possible hypothesis other than the defendant’s guilt, but only reasonable
hypotheses.”) (citation omitted; emphasis in original); Cox v. State, 300 Ga. App.
109, 110 (684 SE2d 147) (2009) (reasonable hypotheses do not include “bare
possibilities that the crime could have been committed by someone else”) (citation
and punctuation omitted). Given the record before us, we cannot say that the jury’s
guilty verdicts are insupportable as a matter of law. See Haynes v. State, 317 Ga. App.
400 (731 SE2d 83) (2012) (evidence showing that files containing child pornography
found on defendant’s computer had been intentionally moved or downloaded to his
computer and the files had been modified on various dates was sufficient and any
conflicting evidence was for the jury to resolve). See also Tennille v. State, 279 Ga.
884, 885 (2) (622 SE2d 346) (2005) (whether evidence of equal access is sufficient
to rebut inference of possession arising from discovery of contraband on defendant’s
computer was a question for the trier of fact).
2. Beaver also contends that the trial court erred in allowing the jury to view
portions of the videos rather than still shots taken from the videos. Prior to trial,
Beaver moved in limine to preclude the State from presenting the actual videos to the
8
jury, arguing that showing video clips rather than still shots was unfairly prejudicial.
The trial court denied his motion, but limited the State’s presentation of the videos
to 10-12 seconds per video.7 The test for excluding relevant evidence has been well
set out: “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.” (Citation and punctuation omitted.) Ross v. State, 279 Ga. 365, 366 (2) (614
SE2d 31) (2005). And, a “trial court’s determination on this issue will not be
disturbed absent an abuse of discretion.” Id.“The term unfair prejudice, as to a criminal defendant, speaks to the capacity
of some concededly relevant evidence to lure the factfinder into declaring guilt on a
ground different from proof specific to the offense charged.” (Citation and
punctuation omitted.) Ross, 279 Ga. at 367 (2). In Simpson v. State, 271 Ga. 772 (523
SE2d 320) (1999), the Supreme Court clarified that in a prosecution for a sexual
offense, sexually explicit material can only be admitted if it can be linked to the crime
charged. Id. at 774 (1). Here, the videos presented were clearly directly relevant to the
specific offenses charged. And where the trial court limited their prejudicial impact
7
The trial court otherwise permitted the State to introduce testimony describing
the actual length and overall content of each video.
9
by significantly restricting the State’s use of the videos that were themselves the
subject of the charges against Beaver, we find no abuse of discretion.8 See Henderson
v. State, 320 Ga. App. 553, 555 (1) (740 SE2d 280) (2013) (noting that jury was
authorized to conclude that the children depicted in videos were clearly prepubescent
and the State therefore met its burden of proving the children were under the age of
18). See also Ross, 279 Ga. at 367 (2) (“a criminal defendant may not stipulate or
admit his way out of the full evidentiary force of the case as the State chooses to
present it”) (citation and punctuation omitted).
Accordingly, the trial court did not err in denying Beaver’s motion for new
trial.
Judgment affirmed. Phipps, C. J., and Ellington, P. J., concur.
8
We also note that Beaver does not argue that the content of the 10-12 second
video clips was unrepresentative of what was depicted on the videos, or that the
specific content shown was more prejudicial than what would be portrayed in
corresponding still shots, other than making the unsupported assertion that moving
video is always more prejudicial than still shots.
10