In Entwisle v. State, the Georgia Court of Appeals reversed the defendant’s conviction for computer invasion of privacy finding that trial counsel was ineffective for failing to object to hearsay testimony that constituted the only evidentiary basis for the charge.
The victim’s house was burglarized and her laptop was stolen. The data on the laptop was backed up by Carbonite, an online backup service. At trial, the victim testified that after the burglary, she learned from Carbonite that someone had used her computer to access her Quicken files, which contained her bank and credit card account information. As a result, she immediately contacted her bank and credit card companies. An investigator contacted Carbonite and obtained the IP addresses where the computer was used. One of these IP addresses belonged to a motel where the defendant’s girlfriend had rented a room.
The defendant was convicted of computer invasion of privacy and other charges. He then filed a motion for new trial, which was denied by the trial court.
On appeal, the defendant argued that his trial counsel was ineffective for failing to object to the victim’s hearsay testimony that she had learned of someone accessing her financial information from Carbonite.
The State argued that the evidence was admissible for explaining why the victim contacted her bank and credit card companies and how the investigator identified the defendant as a suspect. The Court noted that although the former version of O.C.G.A. § 24-3-2 permitted the use of hearsay for the purpose of explaining the conduct and motives of those involved in the investigation, this rule was not carried over when the new Evidence Code was enacted in 2013.
The Court then noted that the hearsay testimony was the only evidence that the victim’s computer files had been accessed. As a result, it held that trial counsel’s failure to object to this testimony was not something that a reasonable attorney would have done under the circumstances. Further, the Court held that the prejudice from failing to object was clear because, without this testimony, there would not have been sufficient evidence to support a conviction for computer invasion of privacy. Thus, had trial counsel objected to this testimony, the outcome of the trial would likely have been different.
For these reasons, the Court reversed the defendant’s conviction for computer invasion of privacy and remanded the case for a new trial on that charge.
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