Holzheuser v. State

841 S.E.2d 735, 308 Ga. 401

• Court: Supreme Court of Georgia
• Decided: April 6, 2020
• Docket: S19C1565
• Status: Published

Opinion

308 Ga. 401 FINAL COPY

ORDER OF THE COURT.

S19C1565. HOLZHEUSER v. THE STATE.

The Supreme Court today denied the petition for certiorari in this case.

Melton, C. J., Nahmias, P. J., and Blackwell, Boggs, Peterson, Warren, Bethel and Ellington, JJ., concur. BLACKWELL, Justice, concurring in the denial of certiorari.

When Robert Holzheuser was tried for child molestation and

public indecency, the trial court admitted evidence of digital images

of young girls that a detective had retrieved from several websites.

The detective earlier had searched Holzheuser’s mobile phone, and

his search revealed the web addresses and internet search terms

that led him to the websites from which he retrieved the images. The

prosecution offered these images — and the trial court admitted

them without objection — as representative of the sort of images

that Holzheuser accessed with his mobile phone, and the

prosecution argued that the images were evidence that Holzheuser

had a sexual interest in prepubescent girls. After he was convicted

and sentenced, Holzheuser appealed, claiming that he was denied

the effective assistance of counsel at trial when his lawyer failed to

raise several objections to the images, including that the State

failed to properly authenticate the images, that the images were

irrelevant, and that the images should have been excluded under

OCGA § 24-4-403 (“Rule 403”). In Holzheuser v. State, 351 Ga. App. 286 (828 SE2d 664) (2019), the

Court of Appeals rejected this claim of ineffective assistance and

affirmed his convictions.

In Division 1 (a) of its opinion, the Court of Appeals reasoned

that the failure to object to the images did not deny Holzheuser the

effective assistance of counsel because any objection to the images

would have been meritless. I am not so sure. About authentication,

the Court of Appeals noted that a party offering evidence need only

show that the evidence “is what its proponent claims[,]” OCGA §

24- 9-901 (a), and the proponent can carry its burden by offering

“[t]estimony of a witness with knowledge that a matter is what it is

claimed to be[,]” OCGA § 24-9-901 (b) (1). See Holzheuser, 351 Ga.

App. at 289 (1) (a) (i). In this case, the detective testified that he

personally visited the websites and retrieved the images and that

the images were fair and accurate depictions of what appeared on

the websites when he viewed them. That testimony was enough, the

Court of Appeals said, to authenticate the images. See id. at 290 (1)

(a) (i). To the extent that the prosecution only claimed that the images were representative of the sort of images that appeared on

the websites at a particular point in time — the day the detective

accessed the websites and retrieved the images — the Court of

Appeals may well have been right that the testimony of the detective

was sufficient to authenticate the images under OCGA § 24-9-901

(a).

The problem, however, is that the content of websites is not

static, and it is hardly uncommon for the content of a particular

website to vary over time. Moreover, the ownership of an internet

domain may change, and as a result, a single web address may direct

to altogether different websites at different points in time.

Consequently, although the testimony of the detective may have

been sufficient to establish that the images presented at trial were

representative of images found on the websites he accessed on the

day that he retrieved the images, that testimony might not establish

that the images were more than minimally probative of the sort of

images that Holzheuser would have seen if he had used the same

web addresses and search terms to access websites (perhaps the same websites, perhaps not) at a different point in time. The images

depicted prepubescent girls in underwear and lingerie and

undoubtedly were prejudicial. In addition, evidence of this sort —

representative images retrieved from the internet in the course of

a criminal investigation and offered as proof of the sort of images

that a person would have found on the internet at an earlier point in

time by using certain web addresses and search terms — has the

potential of confusing issues and misleading the jury, at least in

the absence of evidence about the precise point in time at which

the accused allegedly used the web addresses and search terms.

These circumstances add up to a colorable objection under OCGA §

24-4- 403, which provides: “Relevant evidence may be excluded if

its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury . . .

.” See also Olds v. State, 299 Ga. 65, 70 (2) (786 SE2d 633) (2016).

The Court of Appeals held that the images were probative because

they were “helpful in demonstrating the type of content in

Holzheuser’s phone and web activity,” but the Court of Appeals did not grapple in any meaningful way with the reality that internet

content may vary substantially over time, see Holzheuser, 351 Ga.

App. at 291-292 (1) (a) (iii), and for that reason, I find its analysis

wholly unconvincing.

This case, however, is not a good vehicle to address these

issues. In his petition for a writ of certiorari, Holzheuser now

contends only that his lawyer should have objected on

authentication grounds, and he does not seek review of the

determination by the Court of Appeals that the images were

unobjectionable on relevance and Rule 403 grounds. And even if he

did, it is not clear that the correctness of that determination would

matter much in this case. More specifically, the evidentiary issues

arise only in the context of an ineffective assistance claim; even if

the images were objectionable, it would not necessarily follow that

a reasonable trial lawyer would have known that they were

objectionable and would have objected (three judges of the Court of

Appeals, after all, didn’t think they were objectionable); and

especially considering that Holzheuser admitted that he had viewed child pornography online, it seems doubtful that the

admission of the images affected the outcome of the trial here. For

those reasons, I concur in the denial of certiorari, but I write to

caution prosecuting attorneys and trial courts about the danger

inherent in offering and admitting evidence of this sort.

I am authorized to state that Justices Boggs, Peterson, and

Bethel join this opinion.

DECIDED APRIL 6, 2020.

Certiorari to the Court of Appeals of Georgia — 351 Ga. App.

286.

Ross & Pines, Andrew S. Fleischman, for appellant.

Jacquelyn L. Johnson, District Attorney, Thomas E. Buscemi,

Assistant District Attorney, for appellee.