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Deliberate Ignorance Charge Erroneous in GA Child Pornography Case

March 23, 2015

In McCullough v. State, the Georgia Court of Appeals held that in a child pornography case it was error to instruct the jury on the law of deliberate ignorance where the evidence at trial established either that the defendant had actual knowledge of the pornography or no knowledge at all.

The Court, however, affirmed his convictions for sexual exploitation of children, finding that the erroneous jury instruction did not rise to the level of plain error.

The record showed that an officer of the Paulding County Sheriff’s Office identified five video files of suspected child pornography that were being offered on a file sharing network from a specific IP address. The records from the internet service provider indicated that the IP address belonged to a residence in Douglas County where the defendant lived with his roommate. Officers executed a search warrant at the residence and seized the defendant’s laptop. A forensic analysis of the computer revealed 41 files of child pornography.

The defendant argued at trial that he had no knowledge of the child pornography and that his roommate had access to the laptop and had the opportunity to place the files on it without his knowledge. The defense called several witnesses who testified that they had seen the defendant’s roommate using the laptop as well as a computer forensics expert who linked the roommate to the laptop.

The Court of Appeals first noted that the defendant did not object to the jury charges at trial, and thus they would be reviewed for plain error. To reverse under a plain error standard, there must be a clear and obvious error that affected the outcome of the trial.

The Court held that the charge on the law of deliberate ignorance (or willful blindness) was erroneous as this charge would only be applicable if the defendant was aware of a high probability of the existence of child pornography on his laptop and intentionally avoided learning of this fact. It noted that the evidence pointed to him either having actual knowledge of the child pornography on his laptop or no knowledge at all. The Court, however, concluded that the error did not affect the outcome of the trial because the charge was not likely to confuse the jury and “did not touch on any of the issues raised by the parties.”

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