Winslow v. State

SUPREME COURT OF GEORGIA
November 2, 2022
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
Upon consideration, the Court has revised the deadline for
motions for reconsideration in this matter. It is ordered that a
motion for reconsideration, if any, including motions submitted via
the Court’s electronic filing system, must be received in the
Clerk’s Office by 2 p.m. on Wednesday, November 9, 2022.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
In the Supreme Court of Georgia
Decided: November 2, 2022
S22A0498. WINSLOW v. THE STATE.
BETHEL, Justice.
William Sanford Winslow was convicted on four counts of
sexual exploitation of children in connection with his possession of
two videos depicting children engaged in sexually explicit conduct.
The videos were found on his laptop computer by law enforcement.
On appeal, Winslow raises three enumerations of error: (1) the trial
court erred by denying his motion to suppress evidence obtained
from a search of his laptop; (2) facial and as-applied challenges to
the sentencing scheme of OCGA § 16-12-100 (f) (1); and (3) the trial
court erred by failing to merge all counts of the indictment together
for sentencing under Edvalson v. State, 310 Ga. 7 (849 SE2d 204)
1
(2020).1
For the reasons set forth below, we affirm Winslow’s
convictions. However, because the trial court should have sentenced
Winslow on only one count and merged the remaining counts for
sentencing, see Edvalson, 310 Ga. at 8, 10, we vacate the sentences
imposed by the trial court and remand for resentencing. And,
because we vacate these sentences, we do not reach Winslow’s as-
applied challenge to OCGA § 16-12-110 (f) (1).
1 An officer with the Forsyth Police Department confiscated a laptop
containing explicit videos from Winslow on November 4, 2018. On May 11,
2021, Winslow was indicted by a Monroe County grand jury for four counts of
sexual exploitation of children (Counts 1-4). Counts 1 and 3 were both based
on the possession of the same video. Counts 2 and 4 were both based on the
possession of a second, different video. The Counts differed in the date of
possession. Counts 1 and 2 were based on Winslow’s possession of both videos
on November 4, 2018, the date the laptop was seized. Counts 3 and 4 were
based on Winslow’s possession of both videos on September 15, 2018, the date
the videos were downloaded to the laptop.
At a jury trial held in September 2021, Winslow was found guilty of all
counts. The trial court sentenced him to a total of 35 years, with the first 20
years to be served in confinement and the remaining 15 years to be served on
probation. This sentence included 15 years in confinement for Count 1 and 20
years (five years served in confinement with 15 years on probation) on Count
2 to serve consecutively to Count 1. The trial court merged Count 3 with Count
1 and Count 4 with Count 2.
Winslow filed a timely notice of appeal directed to this Court, raising
constitutional challenges to OCGA § 16-12-100. The case was docketed to this
Court’s April 2022 term and submitted for a decision on the briefs.
2
1. Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed the following. On November 4,
2018, Sergeant David Asbell with the Forsyth Police Department
responded to a call from a Walmart in Monroe County because a
man, later identified as Winslow, was printing photographs that
were making a store clerk uncomfortable. Winslow was attempting
to purchase five printed photos from the self-serve printing kiosk,
and each photo depicted different children, and one computerized
depiction of a child, presented in a manner that is fairly described
as sexualized in nature. The employee also observed Winslow
attempt to hide the photos from view when another Walmart patron
asked if the children in the photos were Winslow’s.
After arriving at the store, Sergeant Asbell approached
Winslow, whom the Sergeant already knew, and asked to speak with
him outside the store. Winslow told Sergeant Asbell that the photos
were of members of Winslow’s family, but Sergeant Asbell knew
Winslow’s family and testified that he knew that these children were
not members of Winslow’s family. Sergeant Asbell then asked
3
Winslow if he had “any other photos that would be images that he
shouldn’t have,” and more specifically, whether he had any other
pictures of children. Winslow responded that he did not, and he told
Sergeant Asbell that he could check. Sergeant Asbell asked if he
could open Winslow’s bag to check. Winslow said “yes” but that there
was “nothing there.”
When Sergeant Asbell looked in the bag, he noticed a laptop
computer. While present with Winslow, Sergeant Asbell attempted
to turn the laptop on but was unable to access any information on
the computer because it had trouble starting. The record before us
does not indicate whether Sergeant Asbell asked Winslow whether
he could check the contents of the laptop. Likewise, the record is
silent as to whether Winslow did or said anything while Asbell was
attempting to access the information on the laptop.
Continuing his search of the contents of Winslow’s bag,
Sergeant Asbell found seven thumb drives. Sergeant Asbell asked
Winslow if there was anything on the thumb drives, and Winslow
responded that the thumb drives were empty but that Sergeant
4
Asbell could check them. Sergeant Asbell then checked three of the
thumb drives by plugging them into his own laptop. The first drive
only contained an installer program for Microsoft windows, and the
second thumb drive was blank. The third thumb drive, however,
contained a folder labeled “Billy’s porn” with two media files in it.
The first file contained photographs of Winslow. Sergeant Asbell
described the second file as containing multiple images of naked
children. After viewing these photos, Sergeant Asbell ended his
search of the thumb drives and arrested Winslow for sexual
exploitation of children.
The GBI searched Winslow’s laptop roughly 14 months later
following the issuance of a warrant. The GBI attributed the delay in
searching the laptop to a backlog of other tasks. During that search,
an agent found two videos containing what the agent considered to
be child pornography. Digital records showed that both videos were
downloaded to Winslow’s laptop on September 15, 2018 at 1:15 a.m.
Winslow moved to suppress all of the electronic evidence,
arguing that the search was conducted without his consent and with
5
an invalid warrant. More specifically, he argued that his consent did
not extend to a full forensic search of the laptop and had long
expired. Additionally, Winslow argued that the warrant 2 had
expired before the GBI search of the laptop commenced because of a
ten-day execution requirement both within the warrant itself and
pursuant to OCGA § 17-5-25; that the warrant was void because it
was obtained in a different judicial district than where the evidence
was housed; and the affidavit supporting the search warrant lacked
probable cause.
Following a hearing, the trial court denied the motion to
suppress. The court determined that Winslow consented to the
search of his laptop, that his consent was never withdrawn, that the
search was valid, and that the search was conducted in a reasonable
amount of time.
2. Winslow challenges the trial court’s denial of his motion to
2 The warrant was issued by a Judge of the Superior Court of Monroe
County on February 4, 2020. It authorized a search of the laptop, seven thumb
drives, and a cellphone seized from Winslow on November 4, 2018, for child
pornography. The warrant noted that the evidence was located in DeKalb
County at the time the warrant was issued.
6
suppress, arguing that he did not consent to the search of his laptop
and that the State did not have a valid search warrant for the laptop
because the warrant had expired, it was issued in a different county
than where the evidence was located, and the supporting affidavit
lacked probable cause. For the reasons explained below, we conclude
that the court did not err in finding that Winslow consented to the
search.
It is well settled that a valid consent to a search
eliminates the need for either probable cause or a search
warrant. In order to justify a warrantless search on the
grounds of consent, the State has the burden of proving
that the consent was freely and voluntarily given under
the totality of the circumstances. It is only by analyzing
all the circumstances of an individual consent that it can
be ascertained whether in fact it was voluntary or coerced.
(Citations and punctuation omitted.) Brooks v. State, 285 Ga. 424,
425-426 (677 SE2d 68) (2009). “[T]he standard for measuring the
scope of a suspect’s consent under the Fourth Amendment is that of
objective reasonableness – what would a typical reasonable person
have understood by the exchange between the officer and the
suspect?” (Punctuation omitted.) State v. Turner, 304 Ga. 356, 360
7
(1) (a) (818 SE2d 589) (2018). Further, constrained by that
limitation, “[o]nce consent is legally obtained, it continues until it is
either revoked or withdrawn.” Woods v. State, 258 Ga. 540, 542 (2)
(371 SE2d 865) (1988).
This Court will not disturb a trial court’s findings of fact in
ruling on a motion to suppress unless they are clearly erroneous.3
See Doleman v. State, 304 Ga. 740, 743 (2) (822 SE2d 223) (2018).
When reviewing the trial court’s findings of fact, “this Court
3 It is not entirely clear whether a determination of the scope of consent
to search provided by a suspect is a question of fact to be determined solely by
the trial court or a question of law that we consider de novo. Compare Varriano
v. State, 312 Ga. App. 266, 268-269 (718 SE2d 14) (2011) (reviewing the trial
court’s determination of the appellant’s scope of consent for clear error), United
States v. Watkins, 760 F3d 1271, 1283 (1) (11th Cir. 2014) (noting that the
district court’s finding that “unlimited consent to a search of [the appellant’s]
computers [was given] was not clear error”), and United States v. Martel-
Martines, 988 F2d 855, 858 (II) (8th Cir. 1993) (noting that the scope of a
suspect’s consent to search is reviewed for clear error), with Martinez v. State,
347 Ga. App. 675, 683 (C) (ii) (820 SE2d 507) (2018) (noting that although
“reviewing the reasonable scope of the search will largely be a fact-specific
inquiry,” that “determination remains a question of law that we review de
novo”), and United States v. Stewart, 93 F3d 189, 192 (I) (5th Cir. 1996)
(determining that the scope of a suspect’s consent to search “is a question of
law reviewed de novo”). But Winslow has not argued that this is a question of
law, and instead the parties have litigated the question as a fact-intensive one.
So although we take the arguments as they come and treat it as a question of
fact in this case, this opinion should not be understood as deciding the thorny
question of which standard of review is properly applied in future cases.
8
construes the evidence most favorably to upholding the trial court’s
findings and judgment and will not disturb the trial court’s findings
of fact if there is any evidence to support them.” Id. “[T]he trial
court’s application of the law to undisputed facts is subject to de novo
review. . . .” (Citation omitted.) State v. Palmer, 285 Ga. 75, 78 (673
SE2d 237) (2009).
Here, the trial court found that Winslow consented to the
search of his bag and all of its contents, including digital information
contained on the laptop, and that this consent was never withdrawn.
The record contains evidence supporting those findings. Specifically,
the evidence shows that Winslow knew that Sergeant Asbell was
searching for photographs of children and Winslow gave him
permission to check his bag, which contained his laptop. When
searching the bag in the presence of Winslow, Sergeant Asbell
attempted to search the digital contents of Winslow’s laptop, and
there is nothing in the record that indicates that Winslow ever
complained or told Sergeant Asbell that he could not search the
laptop itself. See United States v. Harris, 928 F.2d 1113, 1117-1118
9
(IV) (11th Cir. 1991) (noting that “importantly, [the defendant] was
physically present while [the officer] searched the car, and had
ample opportunity to limit the scope of the search, or request that it
be discontinued” while concluding that the district court reasonably
found that the defendant’s consent extended to a search of luggage
in the trunk of a car); Lance v. State, 275 Ga. 11, 20 (19) (560 SE2d
663) (2002) (rejecting a claim that a search was unlawful because a
signed form granting consent to search was too generalized and
noting that the appellant “attended the actual search and never
withdrew his consent”), disapproved on other grounds by Willis v.
State, 304 Ga. 686, 706 (11) (a) n.3 (820 SE2d 640) (2018); Bohannon
v. State, 251 Ga. App. 771, 773 (2) (555 SE2d 112) (2001) (concluding
that no error occurred where the trial court concluded that the
defendant’s consent to search a garage encompassed a locked toolbox
located inside the garage, noting that the appellant was “present
and watching . . . [but] did not register any objection to the officers’
10
search”).4
The record also shows that, moments later, in response to
Sergeant Asbell’s query concerning the contents of the thumb drives,
Winslow gave express permission to search the drives, which had
also been in the bag. After observing images of naked children stored
on one of the thumb drives, Sergeant Asbell seized Winslow’s
belongings, including his laptop, and arrested Winslow for sexual
exploitation of children.
The laptop was searched by the police roughly 14 months later.
There is no evidence that Winslow made any attempt to withdraw
or revoke his consent at any point during the roughly 14 months that
the State had custody of the laptop before it was searched or that he
ever indicated to Sergeant Asbell or anyone else that he had not
4 Winslow’s silence alone would not be sufficient to establish consent
without the other facts indicating the context of his expressed consent for
Sergeant Asbell to search Winslow’s bag, which contained the laptop, for
pictures of children. See Turner, 304 Ga. at 361-362 (1) (b) (concluding that
“the record supports the trial court’s conclusion that [the defendant] did not
voluntarily consent to the search of her home” where she “merely acquiesced
to the authority of law enforcement” without more). But Winslow’s failure to
object to the search of the laptop after giving consent to search the bag and its
contents is a fact that the trial court was authorized to consider in its analysis.
11
consented to a search of the laptop.
Thus, in light of Winslow’s consent for Sergeant Asbell to
search all of the contents of his bag, containing the laptop, for
pictures of children; Winslow’s express consent for Sergeant Asbell
to search the thumb drives contained within the bag; and the lack of
evidence that Winslow objected or did anything while Sergeant
Asbell attempted to search his laptop in his presence, it was not
error for the trial court to determine that a reasonable officer would
have understood Winslow’s statements and actions to constitute
consent to a search of his laptop. Cf. Florida v. Jimeno, 500 U. S.
248, 250-251 (111 SCt 1801, 114 LE2d 297) (1991) (holding that a
defendant’s consent to “search his car [for narcotics] . . . [without]
any explicit limitation on the scope of the search” extended to a
search of a paper bag on the floor of the car because a “reasonable
person may be expected to know that narcotics are generally carried
in some form of a container”); United States v. Plascencia, 886 F3d
1336, 1342-1343 (11th Cir. 2018) (concluding that the district court
did not err in finding that the defendant’s consent for law
12
enforcement to conduct a “complete search of his boat and to [the]
seizure of its contents for any legitimate law enforcement purpose”
was not exceeded by law enforcement conducting a forensic analysis
of a GPS found on the boat (punctuation omitted)); Berry v. State,
318 Ga. App. 806, 808-809 (1) (734 SE2d 768) (2012) (concluding that
a search of hidden compartments within a car did not exceed consent
provided because the appellant was aware that the officer was
looking for “illegal or dangerous items within the truck” and
therefore the consent extended to “even hidden compartments in the
truck to find contraband”); Varriano v. State, 312 Ga. App. 266, 269
(718 SE2d 14) (2011) (concluding that the trial court did not clearly
err in denying the appellant’s motion to suppress because the
consent to search was not exceeded by the officer opening closed
packages and containers because the officer “inquired about the
presence of drugs” and obtained “consent to search the entire
vehicle”); McGaughey v. State, 222 Ga. App. 477, 479 (474 SE2d 676)
(1996) (concluding that a reasonable person could have understood
the scope of appellant’s consent to include a search of a medicine
13
bottle within her purse when, in response to an inquiry about her
presence in a “drug area,” appellant told an officer that he could
“search [her]” while holding up her purse).
Even though the trial court’s determination that Winslow
consented to a search of his laptop is supported by the record, we
must also consider whether the trial court properly considered the
14-month delay between when Sergeant Asbell seized the laptop and
when the GBI forensically searched the laptop. The record does not
reveal an explicit trial court finding either way with respect to
whether the scope of the consent Winslow provided extended beyond
the initial encounter with Sergeant Asbell to include the following
14 months leading up to the actual search of the laptop by the GBI.
Rather, in finding that the search was valid on the basis of
Winslow’s consent, the trial court stated when issuing its oral ruling
at the hearing that Winslow’s “consent was never withdrawn.”
While, as noted above, we have stated that “[o]nce consent is
legally obtained, it continues until it is either revoked or
withdrawn,” see Woods, 258 Ga. at 542 (2), that statement should
14
not be understood to allow a potentially infinite duration whenever
a person’s consent to a search is obtained. 5 Instead, the duration of
the consent, as well as other factors like geographic and physical
limitations and how extensive the search may be, is limited to what
an objectively reasonable person would have understood the scope
of the consent to include, based on the “exchange between the officer
and the suspect. . . .” Turner, 304 Ga. at 360 (1) (a). Here, that
inquiry requires the trial court to determine whether a reasonable
person would have understood from the circumstances of the
interaction with Sergeant Asbell that the consent to search the
5 This quotation from Woods can be easily misused to stand for the
proposition that all consent to search is perpetual until revoked or withdrawn.
See Wilson v. State, 308 Ga. App. 383, 385 (2) (b) (708 SE2d 14) (2011)
(applying Woods to find that the appellant’s consent was still valid for a second
search of his car during the same traffic stop because “[a]bsent any evidence to
the contrary, we cannot assume that the consent was not applicable to the
second search made a short time later to seize what had already been admitted
to”). But, the rule that consent “continues until it is either revoked or
withdrawn” is only true when we remember that all consent to search remains
governed by an objective standard of reasonability. Thus, by way of example,
if an officer obtains consent to search a vehicle and completes the search, the
officer may not, upon encountering the vehicle in a parking lot the following
week, search it again on the theory that the consent obtained had not been
revoked or withdrawn. Rather, the ordinary consent to the search of a vehicle
would be understood to terminate upon the completion of the search.
15
laptop extended beyond that interaction, to include a forensic search
of the laptop by the GBI 14 months later.
In conducting its review of the scope of Winslow’s consent, the
trial court was not only authorized to consider the circumstances
recounted above surrounding Winslow’s consent but also that
Winslow could reasonably be found to be aware that his laptop was
already in the possession of law enforcement and could be in the
State’s continuous possession from that point on. Therefore, there
was evidence to support a finding that a reasonable person would
have understood Winslow’s consent to include a delay for the laptop
to be forensically searched. See Turner, 304 Ga. at 360 (1) (a).
Additionally, once the trial court determined that the scope of
Winslow’s consent encompassed a later search of the laptop, the trial
court was authorized to consider that there was no evidence that
Winslow ever attempted to withdraw or revoke this consent and find
that his consent was ongoing at the time the GBI searched the
laptop 14 months later. Woods, 258 Ga. at 542 (2).
Of course, we presume that trial judges “know the law and
16
apply it in making their decisions, absent some indication in the
record suggesting otherwise.” (Citation and emphasis omitted.)
State v. Abbott, 309 Ga. 715, 719 (2) (848 SE2d 105) (2020). Here,
the trial court made its findings and denied Winslow’s motion to
suppress subject to Turner’s articulated standard that the “scope of
a suspect’s consent under the Fourth Amendment is that of objective
reasonableness. . . .” 304 Ga. at 360 (1) (a). Therefore, given the lack
of any indication in the record to the contrary, we presume that the
trial court properly applied that standard when reviewing the scope
and duration of Winslow’s consent here. Thus, we presume that the
consent the trial court found to have been obtained and not
withdrawn included the duration of the 14-month delay, and we
review this factual finding for clear error. See Holmes v. State, 311
Ga. 698, 705-706 (3) (859 SE2d 475) (2021) (noting that this Court
“presume[d that] the trial court knew and applied” a holding by the
Supreme Court of the United States because the case was decided
before the trial court made its ruling); Doleman, 304 Ga. at 743 (2)
(stating that a trial court’s factual findings on a motion to suppress
17
are reviewed for clear error); Hughes v. State, 296 Ga. 744, 747 (1)
(770 SE2d 636) (2015) (“[W]e generally must presume that the
absence of a finding of a fact that would tend to undermine the
conclusion of the trial court reflects a considered choice to reject the
evidence offered to prove that fact, especially where there were
grounds upon which the trial court properly could have assigned no
weight to such evidence.”).
Like us, the dissent recognizes our obligation to review the
record in a way that upholds trial court findings of fact where any
evidence was presented to support them. And we acknowledge that
the question of whether there are sufficient facts in the record to
support the trial court’s finding that Winslow consented to the
forensic search of his laptop is close. However, we believe that the
“the highly deferential ‘any evidence’ standard” is met here.
(Emphasis supplied.) Morrell v. State, 313 Ga. 247, 251 (1) (869
SE2d 447) (2022). The record contains evidence supporting a finding
that Winslow was aware that Sergeant Asbell was looking for
images of children; he offered a physical search of his bag containing
18
his laptop for images of children; he witnessed Sergeant Asbell take
possession of the bag and all of its contents, including his laptop; he
witnessed Sergeant Asbell’s failed attempt to gain access to the data
on his laptop; and he expressly consented to Sergeant Asbell
searching the flash drives that were also in his bag after it was
unclear whether he would regain possession of his items within the
bag, including the laptop. All of these facts together create a far
more extensive picture of Winslow’s consent than the dissent’s focus
on Winslow responding “sure” to Sergeant Asbell’s request to search
his bag. These facts, in our view, satisfy the requirement that “any
evidence” be present to support a finding that Winslow consented to
a thorough search of the digital media the government had taken
into its possession. Further, Winslow witnessed Sergeant Asbell
locate images of children on one of the flash drives that he had
represented were empty, and he knew that his laptop remained in
the possession of law enforcement. While these facts, which we also
consider favorably to the trial court’s disposition, do not inform the
scope of the consent Winslow provided, they are relevant to the trial
19
court’s consideration of whether that consent was withdrawn.
Additionally, while the dissent suggests the need for Winslow’s
consent to have been found more specifically for a GBI forensic
search of the laptop 14 months after its seizure, that demands too
much of consent. The standard is what a reasonable person would
have believed the consent to encompass. Whether it was the GBI or
an IT professional in the police department, Winslow could
reasonably be understood to have known that Sergeant Asbell would
seek help in completing his failed search of the laptop at some point
after his laptop was seized. And whether the search was a forensic
search or not, this record supports a finding that Winslow knew that
Sergeant Asbell was going to continue his search for images. And
the trial court was authorized to find that a reasonable person would
understand that the subsequent search may include a forensic
search. Additionally, whether the search took place the day, week,
month, or year following the items being seized was of no meaningful
consequence to Winslow, who did not have possession of the items
on any of those days. A reasonable person could be found to have
20
understood that the items would be subsequently searched and that
there may be a delay before law enforcement is able to do so. The
fact that this evidence does not seem like enough to convince the
dissent that the scope of Winslow’s consent extended to the search
of his laptop is a separate question from whether there is any
evidence to support such a finding.
Because the implicit finding that Winslow consented to a
subsequent forensic search of his laptop after it was seized is
supported by evidence in the record, we cannot say that the trial
court erred in denying Winslow’s motion to suppress. And because
we conclude that the trial court did not err in denying the motion to
suppress on the basis of Winslow’s consent to the search in question,
we need not consider the necessity or propriety of a valid search
warrant. See Brooks, 285 Ga. at 425. Accordingly, there is no need
to review Winslow’s remaining arguments on this enumeration.
3. Winslow next argues that the statutory sentencing scheme
for possession of child pornography under OCGA § 16-12-100 (f) (1)
21
is facially unconstitutional. 6 Winslow argues that the mandatory
minimum and the maximum sentence provided for possession of
child pornography under OCGA § 16-12-100 (f) (1) violate the
prohibition against cruel and unusual punishment in both the
Eighth Amendment to the United States Constitution and Article I,
Section 1, Paragraph XVII of the Georgia Constitution (“Paragraph
XVII”). We disagree.
We have recognized that both the Eighth Amendment and
Paragraph XVII “prohibit inflicting cruel and unusual
punishments[,]” which encompasses “sentences that are grossly
disproportionate to the crime committed.” (Citations and
6 Winslow also challenges the constitutionality of OCGA § 16-12-100 (f)
(1) as applied to him based on his total sentence of 35 years, with the first 20
years to be served in confinement and the remaining 15 years to be served on
probation. See Bello v. State, 300 Ga. 682, 686 (1) (797 SE2d 882) (2017) (“An
as-applied challenge addresses whether a statute is unconstitutional on the
facts of a particular case or to a particular party.” (citation omitted)). To the
extent that Winslow also challenges the constitutionality of his particular
sentence (35 years, with the first 20 years to be served in confinement and the
remaining 15 years to be served on probation), that challenge is moot because
we are vacating that sentence on merger grounds. See Stewart v. State, 311
Ga. 471, 478 (3) (858 SE2d 456) (2021) (noting that the appellant’s remaining
challenges to his sentence were moot because this Court vacated his sentence
as to the relevant count).
22
punctuation omitted.) Conley v. Pate, 305 Ga. 333, 335-336 (3) (825
SE2d 135) (2019).
[A] court engages in a two-step inquiry to determine
whether [a] sentence is grossly disproportionate. First, a
court compares the gravity of the offense and the severity
of the sentence. If this threshold comparison leads to an
inference of gross disproportionality, the court proceeds to
the next step and compares the defendant’s sentence with
the sentences received by other offenders in the same
jurisdiction and with the sentences imposed for the same
crime in other jurisdictions.
(Citations and punctuation omitted.) Id. at 336 (3). Additionally,
when reviewing a claim of cruel and unusual punishment under the
Eighth Amendment, “courts must defer to the legislature in
[determinations of sentencing parameters] unless a sentence is so
overly severe or excessive in proportion to the offense as to shock the
conscience.” (Citation omitted.) Gordon v. State, 257 Ga. 439, 440 (2)
(360 SE2d 253) (1987).
Winslow complains that the punishment for possession of child
pornography imposed under OCGA § 16-12-100 (f) (1) is grossly
disproportionate because the statute does not make distinctions for
sentencing purposes between possession offenses and those
23
involving the sale, distribution, or manufacturing of child
pornography. He argues that crimes involving possession of child
pornography should carry a lighter sentence because they are non-
violent crimes and because other criminal statutes, such as OCGA §
16-13-30, provide for lesser sentencing parameters for possession
crimes than crimes involving distribution and manufacturing.
However, even though there is no such distinction in OCGA §
16-12-100 (f) (1), the sentencing parameters are not grossly
disproportionate to the crime of possession of child pornography, an
offense we have long recognized a strong state interest in
discouraging. See State v. Scott, 299 Ga. 568, 575 (3) (788 SE2d 468)
(2016) (“It is evidence beyond the need for elaboration that [the]
government has a compelling interest in protecting the physical and
psychological well-being of children.” (punctuation omitted)). And
Winslow has done nothing to demonstrate that the General
Assembly’s choice to protect the State’s significant interest in
combatting the production, distribution, and possession of such
materials with the range of sentences that can be imposed under
24
OCGA § 16-12-100 (f) (1) or its decision not to distinguish between
possession, production, and distribution offenses in any way “shocks
the conscience.”7 See Aman v. State, 261 Ga. 669, 670 (1) (a) (409
SE2d 645) (1991) (“[A] State’s interest in safeguarding the physical
and psychological well-being of a minor is compelling. The
legislative judgment, as well as the judgment found in relevant
literature, is that the use of children as subjects of pornographic
materials is harmful to the psychological, emotional, and mental
health of the child.” (punctuation omitted) (quoting Osborne v. Ohio,
7 Although this Court has previously relied on the “evolving standard of
decency” standard under the Eighth Amendment in reviewing a claim of cruel
and unusual punishment under Paragraph XVII, see Flemming v. Zant, 259
Ga. 687, 689 (3) (386 SE2d 339) (1989), we decline to decide today whether
Paragraph XVII is properly analyzed under the same lens as the Eighth
Amendment. See generally Conley v. Pate, 305 Ga. 333, 339-341 (825 SE2d
135) (2019) (Peterson, J., concurring). Winslow has not argued that Paragraph
XVII would afford him more protection than the Eighth Amendment nor that
Paragraph XVII would apply an easier standard for him to meet. And we see
no basis for such an argument. Thus, for purposes of our analysis, we presume
that at most Paragraph XVII’s protections are co-extensive with those afforded
by the Eighth Amendment. Therefore, because Winslow cannot show that
OCGA § 16-12-100 is unconstitutional under the Eighth Amendment, it follows
that he could not make a showing of unconstitutionality under Paragraph
XVII. We therefore decline to take this opportunity to consider the precise
standard of review for determining whether a sentence constitutes cruel and
unusual punishment under Paragraph XVII.
25
495 U. S. 103, 108-109 (110 SCt 1691, 109 LE2d 98) (1990)). See also
Gordon, 257 Ga. at 440 (2); Johnson v. State, 276 Ga. 57, 62 (5) (573
SE2d 362) (2002). Therefore, given “the requisite deference to the
legislative branch’s authority to impose punishment based on the
mores of society at the time of the crime,” we hold that the
sentencing parameters in OCGA § 16-12-100 (f) (1) are not grossly
disproportionate.8 Widner v. State, 280 Ga. 675, 676 (1) (631 SE2d
675) (2006).
4. Finally, Winslow argues that the trial court erred in failing
to merge Counts 1 and 2, which were based on Winslow’s
simultaneous possession of two videos found on his laptop, for
sentencing. The State concedes that this was error, and we agree.
Winslow was found guilty of four counts of sexual exploitation
of children. The trial court merged Count 3 with Count 1, which were
8 Although Winslow complains that Georgia is one of only eight states
imposing a similar sentencing scheme for the crime of possession of child
pornography, because Winslow failed to establish the threshold comparison
between the gravity of the offense and the severity of the sentence, there is no
need to compare the sentencing parameters of OCGA § 16-12-100 (f) (1) with
sentences imposed for the same crime in other jurisdictions. See Conley, 305
Ga. at 335-336 (3).
26
both based on his possession of the first video but on different dates.
The trial court also merged Count 4 with Count 2, which were
similarly both based on his possession of the second video on
different dates. However, the trial court declined to merge Count 1
and Count 2, and sentenced Winslow to 15 years in confinement on
Count 1 and five years in confinement with 15 years of probation on
Count 2 to run consecutively with Count 1. This was error.
In Edvalson, this Court held that OCGA § 16-12-100 (b) (5) 9
only allows for “one prosecution and conviction for the simultaneous
possession of multiple items of ‘visual media’” and clarified that
possession can be simultaneous “regardless of the number of images
9 We note that in July 2022, after Edvalson was decided, the General
Assembly amended OCGA § 16-12-100. Pursuant to that amendment, OCGA §
16-12-100 (b) (5) now provides that “[i]t is unlawful for any person knowingly
to create, reproduce, publish, promote, sell, distribute, give, exhibit, or possess
with intent to sell or distribute a visual medium which depicts a minor or a
portion of a minor’s body engaged in any sexually explicit conduct.”
Additionally, the General Assembly enacted OCGA § 16-12-100 (b.1), which
provides that “[f]or any violation of paragraph (5) . . . of subsection (b) of this
Code section involving multiple visual mediums, mediums, or materials, each
visual medium, medium, or material connected to such violation shall
constitute a separate offense.” Because the conduct at issue in this case
occurred prior the effective date of these changes to the statute, the version of
OCGA § 16-12-100 in force at the time Edvalson was decided applies.
27
depicted therein.” 310 Ga. at 8, 10. See also OCGA § 16-12-100 (a)
(5) (defining “visual medium” as “any film, photograph, negative,
slide, magazine, or other visual medium”). Because both Count 1 and
Count 2 were based on Winslow’s simultaneous possession of the two
videos, the trial court erred in failing to merge these counts for
sentencing. Therefore, we vacate Winslow’s sentence and remand
this case for resentencing consistent with Edvalson.
Judgment affirmed in part and vacated in part, and case
remanded for resentencing. All the Justices concur, except Boggs, C.
J., Peterson, P. J., Warren and Pinson, JJ., who dissent.
28
PETERSON, Presiding Justice, dissenting.
Imagine that you’re talking with a police officer at a Walmart.
The officer asks whether you have inappropriate images on your
laptop. You say no. He asks, “can I check?” And you say, “sure.” I am
skeptical that your “sure” can reasonably be understood as consent
to a GBI forensic search of the laptop 14 months later. The majority
presumes that the trial court’s oral ruling (which said nothing of the
sort) must have implicitly made such a finding. If it had done so
explicitly, on this record, I would probably determine that was
wrong. But because I think that the trial court should at least have
the chance to articulate any such finding for itself before I conclude
it was wrong, I would vacate and remand for the trial court to
determine for itself whether it believes such a finding is appropriate.
I respectfully dissent.
As the majority correctly explains, the law is that consent
continues until withdrawn or until the reasonably understood
duration of that consent expires. “A suspect may of course delimit as
he chooses the scope of the search to which he consents.” Florida v.
29
Jimeno, 500 U.S. 248, 252 (111 SCt 1801, 114 LE2d 297) (1991). This
includes limiting the duration of the consent to search. See 2 Wayne
R. LaFave et al., Criminal Procedure § 3.10 (f) (4th ed. Nov. 2021
update) (“Even if it is determined that the consent of the defendant
or another authorized person was ‘voluntary’ within the meaning [of
controlling United States Supreme Court case law], it does not
inevitably follow that evidence found in the ensuing search will be
admissible. This is because it is also necessary to take account of any
express or implied limitations on the consent which mark the
permissible scope of that search in terms of its time, duration, area
or intensity.”). “Even when an officer has consent to conduct a
search, he violates the Fourth Amendment if he goes beyond the
scope of consent.” Fuqua v. Turner, 996 F3d 1140, 1151 (11th Cir.
2021) (citing Jimeno, 500 U.S. at 251). And “[t]he standard for
measuring the scope of a suspect’s consent under the Fourth
Amendment is that of ‘objective’ reasonableness — what would the
typical reasonable person have understood by the exchange between
the officer and the suspect?” Jimeno, 500 U.S. at 251.
30
In affirming the denial of Winslow’s motion to suppress, the
majority relies heavily on the presumption that trial judges have
understood and followed the law, absent the record indicating
otherwise. See Edwards v. State, 301 Ga. 822, 826 (2) (804 SE2d 404)
(2017). To have properly applied the law in this case, the trial court’s
finding that consent permitted a GBI search 14 months later would
have required two supporting findings: (1) that the duration of
Winslow’s consent at the Walmart for Sergeant Asbell to search his
laptop was reasonably understood to be for at least 14 months, and
(2) the scope of that consent extended beyond consent to search
Winslow’s laptop in the Walmart parking lot — up to and including
that it would have been objectively reasonable to conclude that the
scope of that consent extended to a forensic analysis of the computer
by the GBI 14 months after Sergeant Asbell seized it. The majority
acknowledges that the record does not reveal any trial court finding
on either of these points, so any such findings would be merely
creatures of our presumption.
I am skeptical that the record would permit us to affirm any
31
such findings. Sergeant Asbell testified that he asked Winslow “can
I check” whether Winslow had other pictures of children on his
laptop and thumb drives; Winslow “was, like, sure.” Later in his
testimony, Sergeant Asbell also recounted the exchange as asking
Winslow if he had anything “on the drives” or had any “pictures of
kids that you shouldn’t have,” and that Winslow consented by saying
“you can look” or “I [Sergeant Asbell] could check.” This testimony
seems to me strong evidence that Winslow consented to Sergeant
Asbell searching the electronics while at the Walmart; it strikes me
as wholly inadequate to support a finding that his consent was
reasonably understood as continuing for 14 months and extending
to a forensic search by the GBI — by a different person, at a different
time and place, using different means. See LaFave, supra (“As a
general rule, it would seem that a consent to search may be said to
have been given on the understanding that the search will be
conducted forthwith and that only a single search will be made.”);
United States v. Casellas-Toro, 807 F3d 380, 391 (1st Cir. 2015)
(observing that three-week delay in search of car in FBI custody
32
“approaches the outer limit of a reasonable time to complete a
consent search”); State v. Peterson, 273 Ga. 657, 659 (1) (543 SE2d
692) (2001) (“Additional investigators or officials may enter a
citizen’s property after one official has already intruded legally. . . .
Of course, the later officials must confine their intrusion to the scope
of the original invasion unless a warrant or one of the exceptions to
the warrant requirement justifies a more thorough or wide ranging
search.” (quoting United States v. Brand, 556 F2d 1312, 1317 & n.9
(5th Cir. 1977) (punctuation omitted)).
The majority also focuses on Winslow’s failure to withdraw his
consent to search upon being arrested, suggesting that silence in the
face of law enforcement taking his laptop post-arrest was essentially
consent. This strikes me not as consent, but acquiescence. Yet
“[w]hen a prosecutor seeks to rely upon consent to justify the
lawfulness of a search, he has the burden of proving that the consent
was, in fact, freely and voluntarily given. This burden cannot be
discharged by showing no more than acquiescence to a claim of
lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 548-549
33
(88 SCt 1788, 20 LE2d 797) (1968). 10 And the majority’s stated
assumption that Winslow consented to Sergeant Asbell’s search of
the flash drives only “after it was unclear whether he would regain
possession of his items within the bag, including the laptop” is not
reasonably inferred from this record; whether Winslow may have
guessed that he would not get his laptop back that day based upon
his own subjective knowledge of the images contained on the flash
drives is not germane to the objective question of what “the typical
reasonable person [would] have understood by the exchange
between” him and Sergeant Asbell. Jimeno, 500 U.S. at 251.
10 I note that Bumper also holds that when a law enforcement officer
claims authority to search a home under a warrant, the State cannot later
justify the search based on acquiescence in the face of that warrant, because
the officer’s claim of authority communicates to the occupant that he has no
right to resist, a sort of coercion with which there can be no consent. See 391
U.S. at 548-550. “The result can be no different when it turns out that the State
does not even attempt to rely upon the validity of the warrant, or fails to show
that there was, in fact, any warrant at all,” the Court added. Id. at 549-550.
This raises an additional question as to whether the GBI’s search of Winslow’s
laptop can be justified by Winslow’s failure to withdraw any consent prior to
that search, which purportedly took place pursuant to a warrant. Once the
State had secured a warrant, it had a claim of lawful authority to search the
laptop — consent or no. So as a matter of logic, it arguably would have made
no sense for Winslow to purport to withdraw any consent that extended to that
point, since he could not have refused a search in the face of the warrant.
34
But notwithstanding my misgivings, appellate courts don’t
make factual findings ourselves in the first instance. I would not
conclude the trial court was wrong on the basis that a hypothetical
finding that Winslow had given consent continuing for 14 months
and extending to a forensic search by the GBI is unsupported by the
record. Presuming a finding that we ourselves articulate in
sufficient detail to assess and then determining that it is
unsupported by the record is, for me, too close to making factual
findings ourselves, and may wind up being unfair to the trial court.
After all, with the benefit of reviewing more than merely the cold
record before us, the trial court might have some reason for such a
finding that presently escapes my imagination. 11 Before concluding
that no such supportable finding is possible, I would remand for the
trial court to make explicit findings that we could then review.
I’ll also point out that the only reason we have to resolve this
case on consent grounds is that the State may have fouled up the
11Of course, the mere possibility that such a reason might exist is far too
speculative a basis on which to affirm such a hypothetical finding.
35
eventual search warrant for the laptop, and the search performed
thereunder, making it difficult to affirm the trial court’s alternative
holding that the search performed was done reasonably and under
a valid warrant. I share the majority’s prudent desire to avoid those
hard and novel constitutional questions if not necessary to decide
them (which is yet another reason I would vacate). But I would not
do so by finding consent where we have little reason to believe that
the trial court properly found it. I respectfully dissent from the
judgment of the Court. (I do not disagree with anything said in
Divisions 3 and 4 of the majority opinion, but I cannot join in the
judgment of Division 4 because I would vacate and remand the case
as to the motion to suppress, rather than vacating Winslow’s
sentence and remanding for resentencing at this time. To the extent
that Division 3 can be said to have a judgment, I join it.)
I am authorized to state that Chief Justice Boggs, Justice
Warren and Justice Pinson join in this dissent.
36