THIRD DIVISION ELLINGTON, P. J., BETHEL and GOBEIL, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
June 27, 2018
In the Court of Appeals of Georgia A18A0659. MADDOX v. THE STATE.
GOBEIL, Judge.
Following a bench trial in Cobb County Superior Court, James Maddox was
convicted of two counts of distributing child pornography and two counts of
possessing child pornography. Maddox now appeals from the denial of his motion for
a new trial, arguing that the trial court erred in admitting a written document provided
police by Maddox’s Internet service provider (“ISP”) in response to a subpoena. He
further contends that in the absence of that document, the evidence was insufficient
to convict him of distributing child pornography. Additionally, Maddox claims that
even if the subpoenaed document was admissible, the evidence failed to prove that
he distributed child pornography and the trial court therefore erred in denying his
motion for a directed verdict on the distribution charges. And Maddox also asserts that the trial court erred in denying his motion to suppress: (1) the subscriber
information obtained through an allegedly illegal subpoena served on his ISP; (2)
evidence obtained during a search of Maddox’s residence pursuant to a warrant; and
(3) incriminating statements Maddox made during his initial police interview. For
reasons explained below, we find no error and affirm.
“On appeal from a criminal conviction, the defendant is no longer entitled to
a presumption of innocence and we therefore construe the evidence in the light most
favorable to the jury’s guilty verdict.” Marriott v. State, 320 Ga. App. 58, 58 (739
SE2d 68) (2013) (citation omitted). So viewed, the record shows that this case
involves the distribution of child pornography through a peer-to-peer file sharing
program, which represents a commonly used method of obtaining and sharing child
pornography. Such programs allow the sharing of digital media and documents
between computers. One of these peer-to-peer programs, known as ARES, is
available for any member of the public to download from the Internet. When ARES
downloads, it automatically installs on the user’s desktop a folder that is identified
as “My Shared Folder.” Other ARES users are then able to access, view, and
download any document or digital media stored in the shared folder of another ARES
2 user.1 Additionally, when an ARES user downloads information from the shared
folder of another ARES computer, the items downloaded will automatically be stored
in the user’s shared folder. If a user wants to prevent downloaded items from being
accessed and downloaded by others, he or she can move those files out of the shared
folder, delete the files, disconnect his or her computer from the Internet, or uninstall
the peer-to-peer file sharing program.
Once a person has downloaded the ARES program, he or she can use it to
search for specific terms. The program will then compile a list of other ARES users
whose shared folders contain filenames that include one or more of those search
terms. The user then has the ability to download those “matching” files, which will
automatically be stored in his or her computer’s shared file folder.2
In or about May 2013, the Cobb County Police Department was investigating
the ARES peer-to-peer file sharing program to determine if anyone in Cobb County
was distributing child pornography using the ARES network. The Cobb County
1 ARES does not allow a user to see anything on another computer that is not stored in the shared folder. 2 One of the investigating officers testified that in his experience, people interested in obtaining and exchanging child pornography have chat rooms and “other areas” on the Internet where they can discuss file names. People can then run ARES searches based on this information.
3 Police Department ran on one of its secure computers a program called Round Up
ARES (“RU-ARES”). The program searched other ARES computers for terms
associated with child pornography.3 The RU-ARES program also ran a search for
videos and pictures using a secure hash algorithm, also known as an SHA-1. Based
on the number and arrangement of pixels, every video and picture has a specific
SHA-1 value. Thus, the RU-ARES program in this case searched for the SHA-1
values of specific images and videos known to contain child pornography.
Additionally, the search was limited to IP addresses that were potentially located in
Cobb County.
On May 22, 2013, the RU-ARES program running on the police department’s
computer identified an IP address in Cobb County as having six shared files that
contained possible child pornography. Three files were downloaded to the police
department computer from that IP address on May 22, a fourth file downloaded on
May 23, and a fifth file downloaded on May 29. Sergeant Raymond Drew of the Cobb
3 These terms included “PTHC” (which stands for “preteen hard-core”); Lolita; LS Magazine (a known child pornography magazine); and any number less than 18 accompanied by the letters “YO” (the “YO” standing for “years old”).
4 County Police Department4 reviewed those files after they were downloaded and
determined that each of them contained what appeared to be child pornography.
Working with a crime analyst, Drew learned that the ISP for the IP address in
question was Comcast. Drew then prepared a grand jury subpoena for Comcast asking
them to produce the subscriber name, physical address, and other identifying
information for the IP address in question. . The subpoena was served on Comcast
and the ISP provided law enforcement with information showing that the account in
question belonged to Maddox and that the bills went to a residential address in
Marietta.
Upon learning that the computer using the IP address was associated with a
residence inside the Marietta city limits, Drew provided all of the information
regarding the investigation to Detective Mark Erion with the City of Marietta Police
Department. The information provided to Erion included Maddox’s subscriber
information and a copy of the downloaded files. After determining that Maddox lived
at the residential address in question, Erion obtained a search warrant for that
4 At the time, Sergeant Drew was a detective in the Crimes against Women and Children Unit.
5 residence. During the execution of the search warrant, police located three computers,
including a Dell desktop and a Dell laptop, both of which belonged to Maddox.
At the time the search warrant was executed, Maddox agreed to talk with police
and an audio recording of this interview was admitted and played at trial. . During
that interview, Maddox, who had majored in computer science, told police that he had
downloaded the ARES software so that he could obtain pornography from the
Internet. Maddox explained that any pornographic files he downloaded went to the
“My Shared Folder” on his desktop, and that he was the only person who had
downloaded anything to his computers. Additionally, Maddox admitted that he
located the titles of and previewed the pornographic files before downloading them,
and he admitted to downloading all of the files subsequently obtained by the State
using RU-ARES. Maddox further admitted that he was aware that child pornography
videos were in his shared folder, but stated that he was drunk at the time he
downloaded them.
Police obtained a search warrant for Maddox’s computers, and a forensic
examination of those computers showed the presence of child pornography on both
the desktop and the laptop. The desktop contained a total of 19 videos containing
child pornography, including the five videos transferred to the State’s computer
6 during the RU-ARES search. A shared folder on the laptop held approximately 13
videos containing what appeared to be child pornography.
Maddox was indicted on five counts of distributing child pornography based
on the five videos in his desktop’s “My Shared Folder” that were downloaded to the
State’s computer. He was also indicted on two counts of possessing child
pornography, based on a video and an image found on his laptop. Prior to trial,
Maddox moved to suppress the subscriber information provided by Comcast, the
search warrants for Maddox’s residence and his computers, and Maddox’s
incriminating statements made during his police interview. . Following a full
evidentiary hearing, the trial court denied that motion. The case then proceeded to a
bench trial at which the court found Maddox guilty of two counts of distributing child
pornography and two counts of possessing child pornography, but acquitted him of
the three remaining distribution charges.5 The trial court subsequently denied
Maddox’s motion for a new trial, and Maddox now brings this appeal.
1. In response to the subpoena requesting Comcast to provide subscriber
information related to the IP address from which police downloaded pornographic
5 Maddox was acquitted of counts 2, 4, and 5 of the indictment based on the State’s failure to prove beyond a reasonable doubt that the persons in the videos serving as the basis for those counts were under the age of 18.
7 videos, Comcast provided a written document containing the requested information.
When the State introduced this document into evidence at trial, defense counsel
objected “on the grounds that it’s not the best evidence. [It’s] a facsimile transmittal.
. . . [A]nd it’s hearsay as well. And I . . . object to it on the previous Fourth
Amendment grounds [asserted] in the motion to suppress.” The trial court overruled
the objection and allowed the State to introduce the document under OCGA § 24-8-
803 (6) as a business record. Maddox challenges this ruling on appeal.
Georgia Rule of Evidence 803 (6) provides that the following shall be
admissible as an exception to the hearsay rule:
Records of regularly conducted activity. Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness . . . a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24-9-902 . . .
8 OCGA § 24-8-803 (6) (emphasis supplied).
Here, the State used a Rule 902 (11)6 certification for the Comcast document.
Specifically, attached to the document was a “Business Record Certification,”
executed by a Comcast employee who identified himself as a custodian of records.
The certification stated that the responsive document constituted a record generated
and kept in the ordinary course of Comcast’s business; that it was made at or near the
date reflected in the document; that it was made by someone with personal knowledge
of the information contained therein; and that it was kept in the course of regularly
conducted activity as a regular practice of Comcast. Given these facts, we find no
abuse of discretion by the trial court in finding that the requirements of Rule 803 (6)
were met and that the Comcast document was admissible as a business record. See
Roberts v. Comm. & S. Bank, 331 Ga. App. 364, 369 (2) (771 SE2d 68) (2015) (we
review a trial court’s ruling as to the admissibility of a document as a business record
only for an abuse of discretion).
On appeal, Maddox asserts that the Comcast document did not qualify for
admission under Rule 803 (6) because it was not a business record but instead was
6 Under Rule 902 (11), a party may use a written certification of the record’s custodian to meet the requirements of Rule 803 (6) (A)-(C). See OCGA § 24-9-902 (11).
9 a summary of information found in Comcast’s business records. Maddox also
contends that the document did not qualify under Rule 803 (6) because it was created
in response to a subpoena and therefore was not prepared in the normal course of
business. Maddox, however, failed to assert these specific grounds below for
excluding the evidence, either before or after the trial court found that the document
qualified for admission under the business record exception. Accordingly, we find
that this claim of error has been waived.
Georgia law requires that to preserve a claim of error related to the admission
of evidence, a party must assert “a timely objection . . . stating the specific ground of
objection, if the specific ground was not apparent from the context.” OCGA § 24-1-
103 (a) (1). And we have interpreted this Code section to mean that a party must
apprise the trial court of the basis for the objection with sufficient particularity to
allow an informed decision to be made on the legal issue involved. See Powell v.
State, 335 Ga. App. 565, 568 (2) (782 SE2d 468) (2016) (“[t]he trial court must have
the opportunity to be fully informed of the [alleged] error and rule on it”); Ruffin v.
State, 333 Ga. App. 793, 794 (2) (777 SE2d 262) (2015) (“[t]o fully inform the trial
court and permit a ruling, the defendant must articulate the specific basis for objecting
to the [evidence]”) (citation and punctuation omitted); Sowell v. State, 327 Ga. App.
10 532, 536 (1) (759 SE2d 602) (2014) (finding that defendant waived his claim that a
document was not properly authenticated when he failed to make such an objection
at trial). On appeal, therefore, we may not consider any grounds for admitting or
excluding evidence that were not asserted in the trial court. Powell, 335 Ga. App. at
568 (2). This rule results from the fact that “[a]n issue that is not presented or ruled
on by the trial court is not preserved for appellate review.” Anthony v. State, 302 Ga.
546, 549 (II) (807 SE2d 891) (2017) (holding that although defendant had objected
at trial to the introduction of the photographic lineup, he “did not specifically raise
the issue of whether the photographic lineup procedures were flawed” and therefore
the issue was “not preserved for [appellate] review”). See also Ward v. State, 339 Ga.
App. 621, 622 (1) (794 SE2d 246) (2016) (“[w]here an entirely different objection or
basis for appeal is argued in the brief which was not presented at trial we will not
consider that basis as we are limited to those grounds presented to and ruled upon by
the trial court”) (citation and punctuation omitted).
Here, Maddox objected to the evidence on the grounds that it was hearsay, and
the trial court thereafter indicated it was admitting the document under the hearsay
exception found in Rule 803 (6). Maddox made no further objection, and did not raise
either of the arguments he now seeks to raise on appeal. Specifically, Maddox failed
11 to argue that the document did not qualify for admission as a business record either
because it constituted a summary of other business records or because it was not
created in the normal course of business. Given that “[Maddox’s] objection was not
sufficient to notify the trial court of the additional legal grounds he now asserts as his
basis for appeal, and [that Maddox] sought no ruling from the court on those
objections . . . [Maddox] has waived his grounds for appeal on this issue.” Powell,
335 Ga. App. at 568 (2).
2. Maddox argues that because the Comcast document constituted inadmissible
hearsay, the State failed to prove he was guilty of distributing child pornography.
Specifically, Maddox contends that absent the Comcast document, the State had no
proof that it was Maddox’s computer connected to the IP address from which the
State downloaded pornography. In light of our holding in Division 1, this argument
is without merit.
3. Maddox next contends that the trial court erred in denying his motion for a
directed verdict on the charges of distribution. A trial court may grant a directed
verdict “only when all of the reasonable deductions and inferences arising from the
undisputed evidence demand a finding that the accused is not guilty” of the charged
crimes. Battles v. State, 273 Ga. 533, 533 (2) (543 SE2d 724) (2001).
12 (a) Maddox was convicted under Georgia’s Child Exploitation Statute, OCGA
§ 16-12-100, which makes it “unlawful for any person knowingly to create,
reproduce, publish, promote, sell, distribute, give, exhibit, or possess with intent to
sell or distribute any visual medium which depicts a minor or a portion of the minor’s
body engaged in any sexually explicit conduct.” OCGA § 16-12-100 (b) (5). To the
extent that Maddox is contending that the term “distribute” does not encompass his
conduct in making pornographic material available for others to download, we
disagree.
Although OCGA § 16-12-100 (a) defines a number of terms, “distribute” is not
one of them. And the current case appears to represent the first time this Court has
been called on to interpret the language of the Child Exploitation Statute. To ascertain
the meaning of “distribute” in this context, therefore, we apply settled and familiar
canons of statutory interpretation. We look first to the “plain and ordinary meaning”
of the term “distribute.” Deal v. Coleman, 294 Ga. 170, 172 (751 SE2d 337) (2013).
See also Warren v. State, 294 Ga. 589, 590 (755 SE2d 171) (2014) (we must look to
the General Assembly’s understanding of the “ordinary meaning” of the statutory
language “at the time [it] enacted the statute”); OCGA § 1-3-1 (b) (“[i]n all
interpretations of statutes, the ordinary signification shall be applied to all words”).
13 And we read the text of the entire statute together, in the “most natural and reasonable
way, as an ordinary speaker of the English language would.” Deal, 294 Ga. at 172-
173.
When looking for the generally understood or common meaning of a particular
word, courts most often look to dictionary definitions. See, e. g., Abdel-Samed v.
Dailey, 294 Ga. 758, 763 (2) (755 SE2d 805) (2014); Warren, 294 Ga. at 590-591.
Black’s Law Dictionary defines distribute as meaning “[t]o deliver” or “[t]o spread
out; to disperse.” Black’s Law Dictionary 508 (10th ed. 2014). Similarly, Merriam-
Webster provides this definition of distribute: “to divide among several or many . .
. to spread out so as to cover something . . . to give out or deliver especially to
members of a group.” Merriam-Webster N. D., Merriam-Webster.com. (Accessed 15
June 2018). Given the commonly understood meaning of “distribute,” we find that
where, as here, an individual knowingly makes materials available for others to take
and those materials are in fact taken, distribution has occurred. As now Justice
Gorsuch explained when writing for the Tenth Circuit and construing a substantially
similar federal statute concerning child pornography:
[Although the defendant] may not have actively pushed pornography on [other users of the peer-to-peer file sharing program], . . . he freely
14 allowed them access to his computerized stash of images and videos and openly invited them to take, or download, those items. It is something akin to the owner of a self-serve gas station. The owner may not be present at the station, and there may be no attendant present at all. And neither the owner nor his or her agents may ever pump gas. But the owner has a roadside sign letting all passersby know that, if they choose, they can stop and fill their cars for themselves, paying at the pump by credit card. Just because the operation is self-serve . . . we do not doubt for a moment that the gas station owner is in the business of “distributing,” “delivering,” “transferring[,]” or “dispersing” gasoline; the raison d’être of owning a gas station is to do just that. So, too, a reasonable [factfinder] could find that [the defendant] welcomed people to his computer and was quite happy to let them take child pornography from it.
United States v. Shaffer, 472 F3d 1219, 1223-1224 (1) (10th Cir. 2007). See also
United States v. Stitz, 877 F3d 533, 538 (III) (C) (4th Cir. 2017) (“where files have
been downloaded from a defendant’s shared folder, use of a peer-to-peer file-sharing
program constitutes ‘distribution’” under federal law); United States v. Richardson,
713 F3d 232, 236 (II) (5th Cir. 2013) (“we conclude that downloading images and
videos containing child pornography from a peer-to-peer computer network and
storing them in a shared folder accessible to other users on the network amounts to
distribution under [federal law]”); United States v. Budziak, 697 F3d 1105, 1109 (II)
15 (9th Cir. 2012) (evidence “that the defendant maintained child pornography in a
shared folder, knew that doing so would allow others to download it, and another
person actually downloaded it” showed that defendant had distributed child
pornography); United States v.Chiaradio, 684 F3d 265, 282 (II) (E) (1st Cir. 2012)
(“[w]hen an individual consciously makes files available for others to take and those
files are in fact taken, distribution has occurred”); United States v. Spriggs, 666 F3d
1284, 1287 (11th Cir. 2012) (finding that the distribution element of a federal law
imposing an enhanced sentence for distributing child pornography is satisfied where
defendant posts “illicit images on a publicly accessible website” or “makes the files
accessible to others” by “placing them in a file sharing folder”); United States v.
Collins, 642 F3d 654, 656-657 (II) (8th Cir. 2011) (evidence that defendant used a
file-sharing program supported his conviction for knowing distribution of child
pornography).
Here, Maddox admitted that he downloaded the ARES program onto his
computer and that he understood that file sharing was the purpose of that program.
He also admitted that he had child pornography stored in his computer’s shared
folder. Additionally, Maddox could have, but did not, move his downloaded images
and videos into a computer folder that was not subject to file sharing. And Cobb
16 County police were able to download images and videos from the child pornography
collection in Maddox’s shared folder. Under these facts, the evidence supported the
factfinder’s conclusion that Maddox had distributed child pornography.
(b) Despite the foregoing, Maddox contends that subsection (d) of the Child
Exploitation Statute immunizes him from criminal liability for any conduct that might
otherwise be considered the distribution of child pornography. That statutory
subsection provides that OCGA § 16-12-100 (b) (which criminalizes, among other
things, the reproduction, publishing, exhibition, and distribution of child
pornography) “shall not apply to . . . [t]he activities of law enforcement and
prosecution agencies in the investigation and prosecution of criminal offenses[.]”
OCGA § 16-12-100 (d) (1). Maddox argues that because the distribution in this case
took place in the context of a police investigation, that distribution was not subject
to prosecution under OCGA § 16-12-100 (b). We disagree.
Reading subsection (d) in the “most natural and reasonable way, as an ordinary
speaker of the English language would,” Deal, 294 Ga. at 172-173, its language
provides immunity from criminal prosecution for any law enforcement officer or
prosecutor who, in the course of fulfilling his or her duties, engages in conduct that
might otherwise constitute a violation of the Child Exploitation Statute. To be entitled
17 to this immunity, however, two requirements must be satisfied. First, the person
asserting immunity must be a member of a law enforcement or prosecution agency.
Second, the otherwise illegal conduct must have occurred when that person was
acting in their official capacity to investigate and/or prosecute a violation of OCGA
§ 16-12-100. Here, given that Maddox can satisfy neither of these requirements, he
is not entitled to the immunity offered under OCGA § 16-12-100 (d).
4. The subpoena served on Comcast seeking Maddox’s subscriber information
was issued pursuant to OCGA § 24-13-21 (e), which allows a district attorney to issue
a subpoena in grand jury proceedings. On appeal, Maddox asserts that such
subpoenas are not a valid method for obtaining subscriber information from an ISP.
Instead, Maddox contends that such information can be obtained only where a law
enforcement agency or district attorney’s office complies with the requirements of
OCGA § 16-9-109.7 And because the subpoena at issue did not comply with this
7 That statute provides, in relevant part: Any law enforcement unit, the Attorney General, or any district attorney may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service, exclusive of the contents of communications, only when any law enforcement unit, the Attorney General, or any district attorney: (A) Obtains a search warrant as
18 statute, Maddox argues that the trial court erred when it denied his motion to suppress
the information produced by Comcast.
We need not decide in this case whether OCGA § 16-9-109 provides the
exclusive mechanism through which law enforcement and prosecutorial agencies may
obtain subscriber information from an ISP. This is because a party seeking to
suppress evidence must demonstrate that he has standing to do so. See Courtney v.
State, 340 Ga. App. 496, 497 (797 SE2d 496) (2017). And Maddox lacks standing to
object to the legality of a search of Comcast’s records. As we have explained
previously, the customer of an ISP has no reasonable expectation of privacy in the
subscriber information the customer voluntarily conveys to the ISP. Ensley v. State,
330 Ga. App. 258, 259 (765 SE2d 374) (2014). Accordingly, a customer cannot bring
a Fourth Amendment challenge to any subpoena or warrant served on the ISP that
seeks the customer’s subscriber information. Id.
provided in Article 2 of Chapter 5 of Title 17; (B) Obtains a court order for such disclosure under subsection (c) of this Code section; or (C) Has the consent of the subscriber or customer to such disclosure.
OCGA § 16-9-109 (b) (1).
19 Although Maddox concedes that he lacks standing to challenge the subpoena
at issue on Fourth Amendment grounds, he argues that OCGA § 16-9-109 (d) (4)
provides him with such standing. We disagree. This Court has previously considered
and rejected the argument that OCGA § 16-9-109 provides an Internet subscriber with
standing to challenge a request for information served on the subscriber’s ISP. See
Courtney, 340 Ga. App. at 499. In Courtney, a criminal defendant charged with
distribution of child pornography sought to challenge an administrative subpoena for
subscriber information served on his ISP. The trial court denied the defendant’s
motion to suppress and the defendant appealed, arguing that OCGA § 16-9-109 (b)
provided him with standing to challenge the subpoena because that statutory
subsection “defines the circumstances under which an [ISP] may be compelled to
disclose [subscriber] information to a law enforcement agency.” Id. at 497. We
rejected that assertion, reasoning that although
OCGA § 16-9-109 (b) sets forth the process by which a district attorney may require an [ISP] to disclose certain subscriber information[,] . . . [n]othing in this Code section prohibits the [ISP] from disclosing the information to the district attorney, law enforcement, the Attorney General, or for that matter, anyone else.
20 Id. at 499 (punctuation and citation omitted). Accordingly, we found that the statute
granted the defendant neither a reasonable expectation of privacy in his subscriber
information nor standing to challenge a subpoena seeking that information. Id.
We find that the same logic applies to Maddox’s argument that OCGA § 16-9-
109 (d) (4) provides him with standing to challenge the subpoena at issue in this case.
Subsection (d) outlines the requirements for admissibility of any evidence produced
by an ISP under subsections (a), (b), or (c) of OCGA § 16-9-109. See OCGA § 16-9-
109 (d) (1)-(4). And subsection (d) (4) provides:
No later than 30 days prior to trial, a party intending to offer such evidence produced in compliance with this subsection shall provide written notice of such intentions to the opposing party or parties. A motion opposing the admission of such evidence shall be filed within 10 days of the filing of such notice, and the court shall hold a hearing and rule on such motion no later than 10 days prior to trial. Failure of a party to file such motion opposing admission prior to trial shall constitute a waiver of objection to such records and affidavit. However, the court for good cause shown, may grant relief from such waiver.
OCGA § 16-9-109 (d) (4). Thus, while subsection (d) might provide a party with a
basis for objecting to the admissibility of certain evidence, it does not provide a party
with standing to object to a subpoena served on his or her ISP. Accordingly, we find
21 no error by the trial court in denying Maddox’s motion to suppress the subscriber
information obtained from Comcast.
5. Maddox asserts that the trial court erred in refusing to suppress the evidence
obtained pursuant to the search warrant for his residence and his incriminating
statements made to police, as all of that evidence is the fruit of the illegal subpoena
served on Comcast. In light of our holding in Division 4, these claims of error are
without merit.
For the reasons set forth above, we affirm the denial of Maddox’s motion for
new trial.
Judgment affirmed. Ellington, P. J., and Bethel, J., concur.