Defendant Acquitted on 13 of 14 Counts in Child Pornography Case But Loses Appeal

Although the defendant was charged with being in possession of a computer containing multiple sexual images of minors, he was convicted at a jury trial on just one of the 14 counts in the indictment. He filed an appeal alleging that on that one count, the State failed to prove that he knew that the person depicted in the image was a minor.

Case Background

In Cunningham v. State, the GBI received a cyber tip in 2015 that a file containing suspected child pornography had been downloaded using an IP address associated with the defendant’s residence in Cherokee County. The defendant lived at this house with his parents. In 2016, two more tips were received involving the same residence. As a result, a search warrant was obtained by a detective with the Cherokee County Sheriff’s Office.

During a search of the home, the officers discovered a laptop in a basement bedroom. The laptop was connected to a larger monitor. The defendant told the officers that the family used that laptop to watch movies and his mother confirmed that she used it to play video games.

The police seized the laptop as well as several other computer devices, including a cell phone taken from the defendant’s car. During a forensic examination of the devices, several sexually explicit images and videos depicting minors were found. There was no evidence connecting the downloading of these computer files to the defendant, however, the forensic examiner noted that the name of one of these files appeared in the search history on both the laptop and the defendant’s cell phone.

The defendant was then charged with possession of these child pornography files and arrested on 14 counts of sexual exploitation of children.

Evidence at Trial

At trial, evidence was introduced showing that one of these files, the file pertaining to Count 14 of the indictment, was downloaded in the middle of the night just a week prior to the execution of the search warrant.

This file, and the ones relating to the 13 other charges, were found in subfolders under the defendant’s mother’s user name on the laptop.

After the State rested, the defendant’s attorney made a motion for a directed verdict of acquittal. He argued that the State failed to prove that the people depicted in the images and videos were under the age of 18. The trial court denied the motion and ruled that there was sufficient circumstantial evidence of age for the jury to determine that the people could be minors.

The jury found the defendant not guilty on Counts 1 through 13, but convicted him on Count 14. The defendant was sentenced to serve 20 years, with four years to serve in prison and the balance on probation.

Issues on Appeal

The two arguments made by the defendant on appeal were (1) that the evidence was insufficient to prove beyond a reasonable doubt that he knew that the image pertaining to Count 14 depicted a minor; and (2) that the evidence failed to establish that he ever “possessed or controlled” the file pertaining to Count 14.

Regarding the first issue, the Georgia Court of Appeals noted that the only evidence presented of the person’s age was the image itself. When this is the case, the issue is whether the jury can conclude from looking at the image itself, that the person depicted was a minor. If so, then the jury is free to also conclude that the defendant who possessed the image also knew that it depicted a minor.

The defendant argued that proving age with solely the image itself was insufficient because the individuals depicted in the image were not clearly prepubescent children. However, the Court reviewed the image and held that the people depicted were “not so mature that something beyond” the image itself was required to establish that they were under the age of 18.

With regards to the issue of possession, the Court found that the State presented circumstantial evidence that the defendant possessed and controlled the image in Count 14. During the search, the defendant referred to the laptop as “his,” the laptop contained similar search terms and file names as those found on his cell phone, and the defendant was found in close proximity to the laptop at the time the police arrived at the house.

Therefore, the Court concluded that the jury was authorized to find that the State proved beyond a reasonable doubt that the defendant was in possession of this file and that he knew the image depicted a minor.

As a result, the Court affirmed the defendant’s conviction for the one count of sexual exploitation of children.