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Georgia Child Pornography Conviction Upheld by Court of Appeals

November 27, 2013

In Sorg v. State, the Georgia Court of Appeals affirmed the defendant’s conviction for sexual exploitation of children, finding the evidence was sufficient to establish that he knowingly possessed or controlled images of child pornography.

A City of Monroe police officer responded to a call regarding a suspicious vehicle at a fast food restaurant. When the officer arrived, he saw the defendant sitting alone in a car. By the light of the police car’s headlights and blue lights, the officer could see that the defendant was looking at a laptop computer screen. When the officer went to the back of the defendant’s car to run the tag, he saw that the defendant was looking at pornographic images, and that some were explicit images of children. When the defendant noticed the officer, he began to minimize browser windows. The defendant consented to a search of his vehicle and the computer was taken into custody. Another officer examined the computer and saw that the defendant had minimized 21 windows which contained images of “naked children.” The defendant was arrested and interviewed at the police station, where he said that the images were “pop-ups” which he did not intentionally view. When asked to repeat the actions which led to the pop-ups, the defendant was unable to do so.

The State called a computer forensics expert who testified that in his opinion, the child pornography was not the result of pop-up windows and that software installed on the computer would have disabled pop-ups unless the defendant enabled them for a particular website. He also testified that the child pornography files retrieved from the laptop were all time-stamped and showed that they were last accessed on the date of the defendant’s arrest.

In order to sustain a conviction for sexual exploitation of children, the State must show that the defendant knowingly possessed or controlled material which depicts a minor engaged in any sexually explicit conduct. The defendant argued that there was no evidence that he knowingly possessed or controlled the images of child pornography on his laptop.

The Court distinguished Barton v. State, a prior case in which the Court of Appeals reversed a conviction when the evidence established only that the child pornography was contained in temporary internet files that had been downloaded and stored automatically by the computer’s operating system. In this case, however, the Court noted that the evidence showed that the images of child pornography had been intentionally accessed on the date of arrest. Additionally, the officer had observed the defendant trying to close or minimize windows on his computer, which the Court said was another indication that he did not obtain the images passively. The Court also held that the weight to be given to the computer forensics expert’s opinion was for the jury and not for the Court to decide. As such, there was sufficient evidence to support the jury’s verdict and sustain the conviction.

For a more in-depth discussion on what constitutes possession of child pornography under Georgia law, please see our posts on Georgia Sex Offense Law.

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