FOURTH DIVISION DILLARD, P. J., BROWN and PADGETT, 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. https://www.gaappeals.us/rules
August 15, 2024
In the Court of Appeals of Georgia A24A1026. SIMON v. THE STATE.
PADGETT, Judge.
Kerlance Simon was found guilty of two counts of exploitation of an elderly
person and two counts of financial transaction card theft by a jury in Forsyth County.1
Simon appeals her convictions.
Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S.
307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979), the evidence produced at trial
showed that in 2020, Simon was employed as a patient care technician at a hospital
located in Forsyth County and was assigned to work on the fourth floor of the hospital.
In June 2020, D. P., one of the victims, was rather ill and sought treatment at the
1 The trial jury found appellant not guilty of a third count of financial transaction card theft. emergency room of the hospital. D. P. was admitted as a patient to that hospital and
was assigned a room on the fourth floor. At the time of her admission into the hospital,
D. P. was 71 years of age. The hospital employed COVID restrictions during this
period of time which severely limited any family members or friends of patients being
allowed to visit. The only personal item that D. P. took into the hospital with her was
her cell phone and her purse which contained, among other things, her credit card and
debit card. When D. P. was released from the hospital, she discovered that her debit
card and a credit card were missing from her purse. D. P. reached out to her financial
institution and learned that the debit card had been used at a retail store, some
distance from the hospital, while she was incapacitated in the hospital.2 She contacted
law enforcement to report the theft at the suggestion of her financial institution. D. P.
also contacted the store where the card had been used and the manager of the store
agreed to hold the video from that transaction for law enforcement officials.
Later that year, in September 2020, N. H., another victim, became very ill, and
she was admitted to the same hospital as D. P. At the time of her admission, N. H. was
over 80 years of age. N. H. was also admitted to the fourth floor of the hospital. When
2 There was no evidence presented to establish that D. P.’s credit card had been used, only her debit card was used without her permission. 2 she was admitted, N. H. took her purse with her, which contained, among other
things, her credit cards. N. H. was very sick at the time of her admission into the
hospital but once her medical condition began to improve, N. H. asked a hospital
employee to go into the closet in her hospital room and give her access to her purse.
Upon inspection, N. H. discovered that her credit card was missing along with some
cash. N. H. became distraught and her adult daughter was allowed to visit her in the
hospital to make all of the phone calls necessary to report the theft. Upon contacting
her financial institution, N. H. learned that her credit card had been used on several
occasions, on different dates, and at different retail stores while she was incapacitated
in the hospital.
Law enforcement officials became involved and obtained copies of the receipts
from the financial institutions who issued the cards in question. Upon learning the
locations of the retail stores where the financial transaction cards had been used, law
enforcement officials contacted those stores and began collecting video surveillance
from the stores in an attempt to determine who had used the cards while the rightful
owners were in the hospital. Employees of the different retail stores provided their
relevant video surveillance to the investigators. All of these retail stores had some
3 form of video surveillance which depicted the transactions in question. Some of the
stores also had video surveillance equipment located at the entrances and exits of the
store and at least one had additional video surveillance recording the parking lot of the
store. After obtaining the videos, law enforcement officers believed that the same
individual was depicted in all of the store videos. Officers worked with the hospital
security staff to determine if any managers within the hospital could identify the
person depicted in the videos. Simon was eventually identified by her manager as the
person depicted in the videos from the retail stores.
Law enforcement officials determined that Simon was the registered owner of
a vehicle that matched the year, make, and model of the vehicle depicted in one of the
videos from the retail stores. After obtaining Simon’s cell phone number, a search
warrant was issued to obtain her cellular call detail records (“CDR”) and cell-site
location information (“CSLI”). The records from the cellular service provider were
compared to Simon’s work schedule. Law enforcement officers learned that at the
different dates and times the financial transaction cards were used, Simon was not at
work. The data obtained from the cellular service provider was then uploaded into a
program known as “CellHawk” to allow for a visual representation of the data
4 contained in the provider’s records. Officers determined that the records from the
cellular service provider indicated that Simon’s cell phone was located near each of
the different retail stores when the financial transaction cards were improperly used.
Simon testified at trial. She confirmed that she was present at the different retail
stores when the financial transaction cards belonging to D. P. and N. H. were illegally
used but denied stealing the cards from the patients. Simon testified that her presence
at each store on the dates and times when the cards were used was merely a
coincidence.
In what purports to be a single enumeration of error but which actually raises
several independent issues, Simon claims that the trial court erred when it allowed the
prosecution to display to the jury the data from the computer program CellHawk. We
disagree.
We cannot find any precedent in Georgia where CellHawk has been examined
or discussed by an appellate court. Before addressing the propriety of the trial court
having allowed the State to display the results of the CellHawk data to the jury, it is
important to understand what CellHawk is and how it works.
5 CellHawk is a web-based computer program into which an authorized user
uploads CDR and CSLI obtained from a cellular service provider. The program is
capable of reading the different fields within the data collected from the cellular
service provider and can extract the CDR and CSLI data from the report without
further human intervention. CellHawk then provides a visual representation or map
of what the data shows. At its essence, CellHawk only makes a visual representation
of data independently collected from a cellular service provider.
From the data collected from the cellular service provider, CellHawk then
produces a map which plots points on the map, depicting where a cellular device was
located at a given time, as determined by the relative location of the cellular tower on
which the phone was pinging at that time.
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FOURTH DIVISION DILLARD, P. J., BROWN and PADGETT, 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. https://www.gaappeals.us/rules
August 15, 2024
In the Court of Appeals of Georgia A24A1026. SIMON v. THE STATE.
PADGETT, Judge.
Kerlance Simon was found guilty of two counts of exploitation of an elderly
person and two counts of financial transaction card theft by a jury in Forsyth County.1
Simon appeals her convictions.
Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S.
307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979), the evidence produced at trial
showed that in 2020, Simon was employed as a patient care technician at a hospital
located in Forsyth County and was assigned to work on the fourth floor of the hospital.
In June 2020, D. P., one of the victims, was rather ill and sought treatment at the
1 The trial jury found appellant not guilty of a third count of financial transaction card theft. emergency room of the hospital. D. P. was admitted as a patient to that hospital and
was assigned a room on the fourth floor. At the time of her admission into the hospital,
D. P. was 71 years of age. The hospital employed COVID restrictions during this
period of time which severely limited any family members or friends of patients being
allowed to visit. The only personal item that D. P. took into the hospital with her was
her cell phone and her purse which contained, among other things, her credit card and
debit card. When D. P. was released from the hospital, she discovered that her debit
card and a credit card were missing from her purse. D. P. reached out to her financial
institution and learned that the debit card had been used at a retail store, some
distance from the hospital, while she was incapacitated in the hospital.2 She contacted
law enforcement to report the theft at the suggestion of her financial institution. D. P.
also contacted the store where the card had been used and the manager of the store
agreed to hold the video from that transaction for law enforcement officials.
Later that year, in September 2020, N. H., another victim, became very ill, and
she was admitted to the same hospital as D. P. At the time of her admission, N. H. was
over 80 years of age. N. H. was also admitted to the fourth floor of the hospital. When
2 There was no evidence presented to establish that D. P.’s credit card had been used, only her debit card was used without her permission. 2 she was admitted, N. H. took her purse with her, which contained, among other
things, her credit cards. N. H. was very sick at the time of her admission into the
hospital but once her medical condition began to improve, N. H. asked a hospital
employee to go into the closet in her hospital room and give her access to her purse.
Upon inspection, N. H. discovered that her credit card was missing along with some
cash. N. H. became distraught and her adult daughter was allowed to visit her in the
hospital to make all of the phone calls necessary to report the theft. Upon contacting
her financial institution, N. H. learned that her credit card had been used on several
occasions, on different dates, and at different retail stores while she was incapacitated
in the hospital.
Law enforcement officials became involved and obtained copies of the receipts
from the financial institutions who issued the cards in question. Upon learning the
locations of the retail stores where the financial transaction cards had been used, law
enforcement officials contacted those stores and began collecting video surveillance
from the stores in an attempt to determine who had used the cards while the rightful
owners were in the hospital. Employees of the different retail stores provided their
relevant video surveillance to the investigators. All of these retail stores had some
3 form of video surveillance which depicted the transactions in question. Some of the
stores also had video surveillance equipment located at the entrances and exits of the
store and at least one had additional video surveillance recording the parking lot of the
store. After obtaining the videos, law enforcement officers believed that the same
individual was depicted in all of the store videos. Officers worked with the hospital
security staff to determine if any managers within the hospital could identify the
person depicted in the videos. Simon was eventually identified by her manager as the
person depicted in the videos from the retail stores.
Law enforcement officials determined that Simon was the registered owner of
a vehicle that matched the year, make, and model of the vehicle depicted in one of the
videos from the retail stores. After obtaining Simon’s cell phone number, a search
warrant was issued to obtain her cellular call detail records (“CDR”) and cell-site
location information (“CSLI”). The records from the cellular service provider were
compared to Simon’s work schedule. Law enforcement officers learned that at the
different dates and times the financial transaction cards were used, Simon was not at
work. The data obtained from the cellular service provider was then uploaded into a
program known as “CellHawk” to allow for a visual representation of the data
4 contained in the provider’s records. Officers determined that the records from the
cellular service provider indicated that Simon’s cell phone was located near each of
the different retail stores when the financial transaction cards were improperly used.
Simon testified at trial. She confirmed that she was present at the different retail
stores when the financial transaction cards belonging to D. P. and N. H. were illegally
used but denied stealing the cards from the patients. Simon testified that her presence
at each store on the dates and times when the cards were used was merely a
coincidence.
In what purports to be a single enumeration of error but which actually raises
several independent issues, Simon claims that the trial court erred when it allowed the
prosecution to display to the jury the data from the computer program CellHawk. We
disagree.
We cannot find any precedent in Georgia where CellHawk has been examined
or discussed by an appellate court. Before addressing the propriety of the trial court
having allowed the State to display the results of the CellHawk data to the jury, it is
important to understand what CellHawk is and how it works.
5 CellHawk is a web-based computer program into which an authorized user
uploads CDR and CSLI obtained from a cellular service provider. The program is
capable of reading the different fields within the data collected from the cellular
service provider and can extract the CDR and CSLI data from the report without
further human intervention. CellHawk then provides a visual representation or map
of what the data shows. At its essence, CellHawk only makes a visual representation
of data independently collected from a cellular service provider.
From the data collected from the cellular service provider, CellHawk then
produces a map which plots points on the map, depicting where a cellular device was
located at a given time, as determined by the relative location of the cellular tower on
which the phone was pinging at that time. The user has the option of placing pins on
the map which depict locations important to an underlying case to allow for an
understanding of the relative proximity between the cell phone and the location where
the user places a pin. CellHawk is developed by a private company and utilized by law
enforcement agencies via a license that is purchased by that agency. There are other
commercially available programs which are capable of producing similar results.3
3 Testimony was presented during the trial that at a prior point in time, officers could accomplish the same result by transferring the data collected from the cellular 6 CellHawk is completely dependent upon the information uploaded from the
relevant cellular service provider. CellHawk does not independently report data that
is not contained within the records of the cellular service provider or input by the user.
CellHawk’s accuracy is dictated by the information contained in the records supplied
by the cellular service provider. CellHawk merely translates data from the cellular
service provider, taking data contained within a spreadsheet format and converting
that same data into a map that can be more easily understood and digested.
Examining CellHawk in the context of our rules of evidence, it is clear that
CellHawk is merely a demonstrative exhibit as urged by the State and as found by the
trial court. The data from which CellHawk produces a map is obtained from the
cellular service provider - documents that are independently admitted into evidence.
There is no tangible exhibit admitted into evidence based upon the maps created by
CellHawk. Instead, the program is displayed via a computer connected to the internet
during the trial and the corresponding maps are displayed to the jury. CellHawk is
merely a more modern way of doing what has been done with paper maps and
service provider into a program such as Excel and then uploading the data into a program such as Google Earth, which would visually represent the same or similar information that is produced by CellHawk. However, use of Cellhawk allows law enforcement officer to avoid that time intensive work. 7 thumbtacks for generations. Accordingly, CellHawk is best described as a
demonstrative aid which is not admitted into evidence and does not go out with the
jury during deliberations. Having identified what CellHawk is and does, we now turn
to Simon’s arguments on appeal.
In this case, the State introduced approximately 470 pages of data contained
within a spreadsheet from Simon’s cellular service provider. The search warrant
obtained by law enforcement officials asked for the CDR and CSLI relating to Simon’s
cell phone for a five day window surrounding the dates that D. P.’s and N. H.’s
respective financial transaction cards were improperly used. The voluminous records
showed when Simon’s cell phone was used and also showed which cell phone tower
the device was pinging at any particular point in time via the tower’s longitude and
latitude. The data from the cellular service provider also revealed the degree of
location accuracy as to each entry within their records. However, that data was
introduced in the form of a multi-page spreadsheet which lists the latitude and
longitude of cell towers on which Simon’s cell phone was pinging at that particular
time. Simon concedes that the records of the cellular service provider were properly
8 admitted as business records under OCGA § 24-8-803(6) and properly authenticated
under OCGA § 24-9-902(11).
During the trial, a law enforcement witness who was trained in digital forensic
investigations and was also familiar with the operation of CellHawk was called to
testify. The witness also testified in a more general manner about the way cell phones
work, how phones connect or ping off of cellular towers, and other matters relating to
how cellular networks work in general. The witness then testified that she had
previously uploaded the records obtained from Simon’s cellular service provider, and
the prosecutor had the witness show, via CellHawk, what the records obtained from
the cellular service provider revealed as to the location of Simon’s cell phone during
the relevant dates and times.
Simon claims on appeal that the law enforcement witness who testified lacked
the requisite qualifications to be allowed to testify as an expert. During the trial, Simon
specifically objected to the law enforcement witness testifying without being qualified
as an expert. The State noted that they were not tendering the witness as an expert.
The trial court initially overruled the objection. Later in the proceedings, Simon again
interjected, claiming that the witness was testifying to her opinion and reasserted a
9 request to voir dire the witness as to her qualifications as an expert. The trial court
revisited the issue after noting that the witness was clearly testifying to information
“beyond the ken of the average juror.” At Simon’s request, the trial court allowed
Simon to voir dire the witness as to her qualifications. The trial court found that the
witness was qualified to testify as an expert in “digital forensics and this area of
expertise.”
Simon now claims on appeal that the witness did not need to qualify as an
expert to testify during the trial and claims that the trial court’s decision to qualify the
witness as an expert was harmful. However, Simon’s argument seems to
misunderstand the trial court’s ruling. The trial court qualified the witness as an
expert in digital forensics, not as an expert in CellHawk. The witness did not need to
qualify as an expert to operate CellHawk for the jury - a point that Simon concedes.
However, the witness did need to qualify as an expert to testify about cellular networks
and how they work. This testimony was relevant and helped the jury understand what
the CDR and CSLI data captured by Simon’s cellular service provider meant.
Simon urges us to find that the trial court erred in qualifying the witness as an
expert. However, the entire exercise of qualifying the witness as an expert was
10 triggered by repeated objections from Simon. The State did not seek to tender the
witness as an expert until Simon made a second objection concerning an inability to
voir dire the witness as to her qualifications. Simon “cannot complain of a result he
procured or aided in causing.” Pope v. State, 266 Ga. App. 602, 603 (1) (597 SE2d 632)
(2004); see also WellStar Health System, Inc. v. Sutton, 318 Ga. App. 802, 804 (1) (734
SE2d 764) (2012).
Following his voir dire of the witness, Simon objected to the witness being
qualified as an expert because,
she’s never been certified [as an expert] before. She shows no degree. She shows some classes and training admittedly, unquestionably. But as to this specific area, I don’t think she should be brought to the level of a doctoral or a CPA or a scientist or anyone of that nature. The area of software is quite complex, and I don’t think there’s been a sufficient background here to call her an expert.4
Georgia law does not require that a witness who is tendered as an expert have
a particular educational degree. See Gulley v. State, 244 Ga. App. 629, 630 (1) (536
4 At the time of this trial, the standard for expert testimony in criminal cases was found in OCGA § 24-7-707. The proper standard is now found in OCGA § 24-7-702. See Ga. L. 2022, p. 201, § 1 (amending OCGA § 24-7-702 to apply “in all proceedings” rather than only “in all civil proceedings” and repealing OCGA § 24-7-707). 11 SE2d 530) (2000) (“To qualify as an expert, generally all that is required is that a
person be knowledgeable in a particular matter; h[er] special knowledge may be
derived from experience as well as study, and formal education in the subject is not a
requisite for expert status.”) (citation omitted). What is required is that the witness,
through her knowledge, skill, training, or education, is established to have knowledge
that is beyond the ken of the average juror and which will assist trier of fact to
understand the evidence or to determine a fact in issue. Watson v. State, 303 Ga. 758,
760-761 (2) (b) (814 SE2d 396) (2018) (a witness may be qualified to testify as an
expert in a particular field if the witness demonstrates “special knowledge . . . derived
from experience”) (citation omitted). Whether the witness has or does not have a
particular educational degree, has ever previously been qualified as an expert, or
otherwise could have been more qualified goes to the weight the jury is to afford her
testimony, not the admissibility of her testimony. Mahogany v. State, 366 Ga. App.
750, 754 (2) (a) (884 SE2d 141) (2023). Here, the trial court found that the witness
had knowledge acquired through her training and experience to understand the
technology surrounding how cell phones worked and how they interacted with cell
towers. Given these determinations, the trial court found the witness’ expertise
12 related to matters beyond the ken of the average juror. Appellate courts are mindful
that trial courts have broad discretion to admit or exclude expert testimony. Miller v.
Golden Peanut Company, LLC, 317 Ga. 22, 30 (2) (891 SE2d 776) (2023). The trial
court did not abuse its discretion by authorizing the witness to be qualified as an
expert in digital forensics.
However, it appears that Simon, both during the trial and in this appeal, has
conflated the concept of the witness being qualified as an expert in digital forensics
with her role in displaying the CellHawk maps during the trial. To be clear, the trial
court did not find that the witness was qualified as an expert on CellHawk and the
State never asked that the witness be so qualified. The witness was qualified as an
expert in digital forensics and did provide limited testimony on that subject. No part
of the trial court’s ruling made any reference to her expertise, or lack thereof,
concerning the manner in which CellHawk works. Simon’s arguments on this point
are without merit.
Secondarily, Simon argues that because there was no evidence admitted as to
how CellHawk works and the accuracy of the program, that admission of the
13 testimony concerning CellHawk and the maps created by the program was improper
because they constituted hearsay. This argument is also without merit.
Hearsay is defined as ‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [cit] Georgia’s Evidence Code defines ‘[d]eclarant’ as ‘a person who makes a statement.” [cit] Finally, it defines ‘statement’ as ‘(1) [a]n oral or written assertion; or (2) [n]onverbal conduct of a person, if it is intended by the person as an assertion.’ [cit] Accordingly, reports generated by a computer program are not considered hearsay as they are not the statements of a person.” [cit]
Bryan v. State, __ Ga. App. __, 2024 WL 2842246 p. 6 of slip opinion (A24A0048
June 5, 2024) (emphasis in original). See U.S. v. Lamons, 532 F3d 1251, 1262-1263
(11th Cir 2008) (cell phone data generated by a machine does not qualify as hearsay -
and does not pose Confrontation Clause concerns). This visual representation of data
that was properly admitted in the form of a spreadsheet was not hearsay - there was
no “statement” by a “person” within the task that CellHawk performed. Instead, the
program merely plotted on a map the data contained within the independently
admissible cellular service provider’s spreadsheets that were properly admitted under 14 OCGA §§ 24-8-803 (6) and 24-9-902 (11). It was merely another way of presenting
information that was admitted and properly before the jury. The trial court properly
allowed the State to present the evidence to the jury through the use of CellHawk as
a demonstrative aid and Simon’s arguments on this point do not establish any error
occurred during trial.
Judgment affirmed. Dillard, P. J., and Brown, J., concur.