State v. Al-Khayyal, 2013 Ga. App. LEXIS 514; 2013 WL 3037725 (GA Court of Appeals)

The State appealed defendant’s successful motion to dismiss regarding his 49 count indictment of possession of child pornography in violation of OCGA § 16 -12-100 (b) (8).

Defendant, a professor at the Georgia Institute of Technology, was abroad teaching in China, when he became the target of an investigation into child pornography. When he returned to the United States on August 5, 2009, bringing his laptop computer, immigration control officers detained him in the Atlanta airport (in Clayton County) and seized that computer. A forensic computer specialist for the Georgia Bureau of Investigation conducted a forensic examination of the computer, using specialized forensic software, and discovered 29 digital files that contained sexually explicit images of young girls. The files had been placed in the computer’s trash folder, which had then been emptied, so that the files were permanently deleted or “double-deleted” and inaccessible to the user (Counts 1-29). A subsequent examination of the computer yielded 20 additional files that had been “deleted” but remained saved in the trash folder (Counts 30-49). Those files were in a compressed “.rar” format, and the images contained in the files could be viewed only with an “uncompressing” or “unzipping” program that at that time was not loaded on the computer. A different unzipping program, however, was loaded on the computer, and the computer’s history files showed that the software had been used, though not on the files at issue in this case.

Defendant was granted a motion to dismiss for lack of venue, finding that, although he possessed the computer in Clayton County, he had deleted the digital files before he entered the county and could no longer access the illegal images, and, therefore, there was no evidence that he committed the offenses as alleged in the indictment.  The State appealed this ruling, in part, as to Counts 30 through 49 (the trash files).

The State contended that, for purposes of Defendant’s motion, the evidence established that he possessed his computer in Clayton County at a time when the subject .rar files were present on the computer’s hard drive. In addition, the State contended that the evidence established that, although the subject files were then assigned to Defendant’s computer’s trash folder, he could have accessed the files and viewed the contraband images after downloading software that was readily available to the public. Further, the State contended that the evidence supports an inference that Defendant knew that the files were present on his computer and that he could later access them.

Defendant argued that he did everything he could to delete the files before entering Clayton County, and they were in fact totally inaccessible. Based on this, he argued that the trial court correctly determined that, as a matter of law, he was not in knowing possession or control of the contraband in that venue.

“A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. In any criminal prosecution for possession, therefore, the State must prove that the defendant was aware he possessed the contraband at issue.” Further, “[a]s long as there is slight evidence of access, power, and intention to exercise control or dominion over an instrumentality, the question of fact regarding the constructive possession belongs to the trier-of-fact.

The appellate court found no support in Georgia law, for defendant’s proposition that possession of prohibited material under OCGA § 16-12-100 (b) (8) exists only in conjunction with the defendant’s present ability to view illegal visual depictions, especially given the evidence that the needed software was readily available to the public.  To the contrary, the appellate court found that the inference could be made that since he deleted the .rar files to the trash bin he was aware of their existence on his hard drive.  Additionally, since he “double-deleted” the other files, the inference could be drawn that he know he could still access the files that remained in the trash bin.  More, the fact that an unzipping software existed on his computer allowed the inference that he knew how to use such software.  All these inferences taken together requires the finder of fact to determine if Defendant’s deletion of the files were successful, the lower court should not have ruled as a matter of law that the State could not prove its case.

Judgment reversed.

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