FOURTH DIVISION DOYLE, P. J., COOMER and MARKLE, 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 12, 2019
In the Court of Appeals of Georgia A19A0757. HOLZHEUSER v. THE STATE. DO-025 C
DOYLE, Presiding Judge.
Following a jury trial, Robert Holzheuser was convicted of child molestation1
and public indecency.2 Holzheuser now appeals from the denial of his motion for new
trial, contending that (1) he received ineffective assistance of counsel with respect to
(a) the admission of certain evidence based on the contents of his phone, (b) the
admission of his recorded confession to police, and (c) the failure to request a
downward deviation from mandatory sentencing under OCGA § 17-10-6.2; and (2)
1 OCGA § 16-6-4 (a) (1). 2 OCGA § 16-6-8 (a) (2). The indecency count merged into the molestation count. the trial court erred by admitting certain similar transaction evidence pursuant to
OCGA § 24-4-414. For the reasons that follow, we affirm.
Construed in favor of the verdict,3 the evidence shows that a family was
shopping at a home improvement store when the 9-year-old daughter became upset
and asked her mother to leave the store immediately. They left, and the daughter soon
disclosed to her father that a male stranger had lifted up his sweatshirt and exposed
his penis to her while they were in the store. The family returned to the store, which
eventually was able to produce a surveillance video of the incident after the family
filed a police report. Based on the video and other store records, the store and police
were able to determine that the suspect in the video purchased a gift card using a debit
card issued to Holzheuser.
Holzheuser was identified as an active member of the U. S. Navy, so police
contacted Special Agent Jason Boswell, an investigator with the Naval Criminal
Investigative Service. Boswell contacted Holzheuser’s commanding officer and
arranged a time to interview Holzheuser that would not interfere with Holzheuser’s
military duties.
3 See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
2 At the appointed time, Holzheuser reported to the interview, which was
conducted by Boswell and police detective Brian Allgood. Boswell read Holzheuser
a form titled “Military Suspect’s Acknowledgment and Waiver of Rights.” Boswell
read the form to Holzheuser, who signed the waiver acknowledging: that he was
suspected of committing indecent exposure, that he had a right to remain silent and
not answer any questions, that any statements could be used against him in a court
martial or other trial, that he could have an attorney present, that he could terminate
the interview at any time, and that he was free to leave at any time. After Holzheuser
signed the waiver, the interview began, and Holzheuser ultimately admitted that he
exposed himself to a minor at the home improvement store. He also admitted that he
had viewed child pornography, and “I know that there is child pornography on my
phone. . . . I’m not going to deny that there have been single[-]digit [age] children on
my phone.”
Based on the interview and other investigation, Holzheuser was indicted in
superior court for committing one count each of child molestation and public
indecency. Prior to trial, he moved to exclude certain sexual images of children found
in connection with a search of his cell phone, which motion was denied. Following
a jury trial, he was found guilty on both counts, and the trial court merged the
3 indecency count into the child molestation count. Holzheuser moved for a new trial,
and after an evidentiary hearing, the trial court denied his motion, giving rise to this
appeal.
1. Holzheuser first argues that he received constitutionally ineffective
assistance of trial counsel on three grounds: (a) the admission of certain notes on his
phone and related website images, (b) the admission of his recorded police interview,
and (c) his trial counsel’s failure to request a downward deviation from the mandatory
sentencing provision in OCGA § 17-10-6.2.
Under Strickland v. Washington,4 to succeed on an ineffective assistance claim,
a criminal defendant must demonstrate both that his trial counsel’s performance was
deficient and “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”5
“There is a strong presumption that the performance of trial counsel falls within the
wide range of reasonable professional assistance. The reasonableness of the conduct
4 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). 5 See id. at 687-688, 694 (III) (A)-(B).
4 is viewed at the time of trial and under the circumstances of the case.”6 If an appellant
fails to meet his burden of proving either prong of the Strickland test, the reviewing
court need not examine the other prong.7 In reviewing the trial court’s decision, “[w]e
accept the trial court’s factual findings and credibility determinations unless clearly
erroneous, but we independently apply the legal principles to the facts.”8
With this framework in mind, we turn to Holzheuser’s specific arguments on
(a) Failure to object to the admission of website images and phone notes. At
trial, the State examined Boswell about the investigation he conducted after the police
relayed the family’s complaint about Holzheuser. Boswell explained that part of the
investigation included reviewing the contents of Holzheuser’s smart phone, based on
Holzheuser’s admission during the police interview that he had viewed child
6 (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004). 7 See Strickland, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004). 8 (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).
5 pornography on his phone.9 As part of that search, Boswell obtained a list of the
websites that had been viewed on Holzheuser’s phone as well as Internet search terms
and notes stored in a note-taking application. Included in this information were
sexually suggestive uniform resource locators (“URLs”10) and searches with term
“little girls” in them. Boswell further explained that he entered the search terms and
URLs on a dedicated investigative computer and printed out screen shots of the
results, including a small number of “representative images” he selected
independently. There was also at least one suggestive website URL saved in
Holzheuser’s note-taking application, and Boswell printed out screen shots of the
results when he visited that website as part of the investigation.
According to Boswell, the images and web sites from these searches featured
“images [of] consistently young[] girls in their underwear or lingerie.” As part of his
testimony, Boswell carefully explained that these were images that displayed when
he searched the terms and URLs found on Holzheuser’s phone; he did not claim that
9 Police did an initial, perfunctory search pursuant to Holzheuser’s consent, and they later did a more thorough search pursuant to a warrant. 10 A URL refers to a particular website address on the Internet. See https://www.merriam-webster.com/dictionary/URL (website last accessed May 5, 2019).
6 the images themselves were found on Holzheuser’s phone. Essentially, “I opened up
three of the links to get a gist of what is on the website or where it takes you. And that
was enough for me.” He also testified that there were no images that he believed to
be pornographic saved on the phone itself, and on cross-examination, Boswell agreed
that he did not know whether Holzheuser actually viewed any of the particular images
presented at trial.
(i) Authentication. Holzheuser argues that his trial counsel should have
objected to the captured images and notes introduced during Boswell’s testimony
because they were not properly authenticated. Holzheuser cites United States v.
Bansal,11 arguing in his brief that the Federal Rules of Evidence “require[] the use of
an internet archive to show how that website appeared at the time of access. . . .”
While that case did involve testimony of a witness describing an internet archive
called the “Wayback Machine,” the case did not purport to establish the clear rule that
Holzheuser urges here. Instead, Bansal merely reiterates one way to satisfy Federal
Rule of Evidence 901, which states that “[t]o satisfy the requirement of authenticating
11 663 F3d 634, 667 (VII) (D) (2) (3d Cir. 2011).
7 or identifying an item of evidence, the proponent must produce evidence sufficient
to support a finding that the item is what the proponent claims it is.”12
The applicable rule in Georgia is OCGA § 24-9-901 (a): “The requirement of
authentication or identification as a condition precedent to admissibility shall be
satisfied by evidence sufficient to support a finding that the matter in question is what
its proponent claims.” This can be shown by “[t]estimony of a witness with
knowledge that a matter is what it is claimed to be,”13 or by a document’s
“[a]ppearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.”14 Thus, there is no bright
line rule specifically requiring the use of an Internet archive, and based on Boswell’s
testimony — that the screen shots accurately depicted the images Boswell viewed and
printed out, not that they had been viewed by Holzheuser at a particular time —
Holzheuser’s argument fails as to an authenticity objection regarding those
12 Id. 13 OCGA § 24-9-901 (b) (1). 14 OCGA § 24-9-901 (b) (4).
8 documents.15 To the extent that Holzheuser argues that the information on his phone
could have been the product of a different person’s use of his phone without his
knowledge or permission, this argument goes to weight, not authenticity.16 There was
no dispute that the notes were found on Holzheuser’s personal cell phone, Boswell
personally authenticated them as such, and Holzheuser admitted to using his phone
to view child pornography.17 The admission of evidence is reviewed only for an abuse
of the trial court’s discretion,18 and based on the record before us, Holzheuser’s
15 See Cotton v. State, 297 Ga. 257, 259 (3) (773 SE2d 242) (2015) (“[D]ocuments from electronic sources such as the printouts from a website . . . are subject to the same rules of authentication as other more traditional documentary evidence and may be authenticated through circumstantial evidence.”). 16 See, e.g., Cowins v. State, 290 Ga. App. 814, 817 (660 SE2d 865) (2008) (“When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to the weight.”) (punctuation omitted). 17 See, e.g., Glispie v. State, 335 Ga. App. 177, 184-185 (1) (b) (i) (779 SE2d 767) (2015) (physical precedent only), reversed in part on other grounds by Glispie v. State, 300 Ga. 128 (793 SE2d 381) (2016). 18 See, e.g., Spencer v. State, 287 Ga. 434, 436 (2) (a) (696 SE2d 617) (2010) (noting that we review a trial court’s decision on the admission or exclusion of evidence for an abuse of discretion).
9 argument does not demonstrate deficient performance on the part of his trial
counsel.19
(ii) Relevance. Holzheuser similarly argues that his trial counsel should have
objected on the ground that the website images were not relevant to the issues at trial
because there was no evidence that Holzheuser viewed them. Relevant evidence is
“evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.”20
The images the State introduced through Boswell were admitted, in part, to
show Holzheuser’s sexual intent in exposing himself to a young girl. Demonstrating
a prurient interest in underage girls would support a finding that Holzheuser intended
to expose himself for the purpose of sexual gratification, which is an element of child
molestation.21 Holzheuser denied any sexual intent during his police interview, so
19 See Faust v. State, 302 Ga. 211, 218 (4) (a) (805 SE2d 826) (2017) (holding that “counsel was not ineffective for failing to make a meritless objection”). 20 OCGA § 24-4-401. 21 See OCGA § 16-6-4 (a) (“A person commits the offense of child molestation when such person: (1) Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. . . .”).
10 evidence tending to prove that fact would be relevant. Accordingly, a relevance
objection would have been meritless and cannot support Holzheuser’s ineffective
assistance claim.22
(iii) Rule 403. Holzheuser next argues that his trial counsel should have
objected on the ground that the images were inadmissable under OCGA § 24-4-403:
“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 or
by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”
Holzheuser points to the fact that there was no evidence that he actually viewed
the specific images at issue, and he urges that this deprived the evidence of probative
value. Holzheuser misapprehends the purpose of the evidence. The State did not
argue that the images were on Holzheuser’s phone or that Holzheuser viewed the
particular images proffered through Boswell’s testimony. Instead, the State argued
that the evidence was representative of the type of images available on the websites
Holzheuser admitted to visiting as well as on URLs stored on Holzheuser’s phone.
Police found no sexually explicit images actually stored on Holzheuser’s phone, so
22 See Faust, 302 Ga. at 218 (4) (a).
11 the evidence was useful to show the type of content displayed when someone visited
the URLs and used the search terms saved on Holzheuser’s phone. Futher, the images
were probative of the fact that Holzheuser sought sexual gratification by viewing
sexually suggestive images of underage girls. As noted above, this would be relevant
to his intent in committing the acts alleged in the indictment.
The harm that Rule 403 seeks to minimize is not mere prejudice, but “unfair
prejudice,”23 such as by introducing inflammatory material that has no bearing on the
issues at trial. But here, Holzheuser admitted to police that he had viewed child
erotica on his phone, and the images were the result of visits to the URLs on
Holzheuser’s phone and in his note-taking app. Thus, the material offered by Boswell
was part of the subject matter of the police interview, and it was helpful in
demonstrating the type of content in Holzheuser’s phone and web activity.24 Boswell
was careful to explain what the images were as well as what they were not, and the
23 See, e.g., United States v. Meester, 762 F2d 867, 875 (II) (A) (11th Cir. 1985) (“Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter[.]”) (citation and punctuation omitted; emphasis in original) (applying Fed. R. Evid. 403). 24 See generally Stinski v. State, 281 Ga. 783, 786 (3) (642 SE2d 1) (2007) (“[P]hotographs are inherently more persuasive regarding the existence of the things they depict than testimony regarding those same things.”).
12 State did not attempt to confuse the jury as to what the images represented. Under
these circumstances, the challenged evidence did not present a risk of undue prejudice
that substantially outweighed its probative value. Accordingly, trial counsel’s failure
to make an objection on Rule 403 grounds does not meet Holzheuser’s burden under
Strickland.
(b) (i) Failure to object to admission of police interview based on a fear of
losing employment. Prior to trial, Holzheuser’s trial counsel moved to exclude the
police interview, and the trial court held a Jackson-Denno25 hearing at which Boswell
testified. The trial court denied Holzheuser’s motion to exclude the interview, finding
it voluntary. On appeal, Holzheuser contends that his trial counsel should have
objected to admission of the interview on the ground that Holzheuser consented to the
interview only because he reasonably feared he would lose his duty-required security
clearance if he did not speak to police.
As support, Holzheuser cites Garrity v. New Jersey,26 which addressed police
officers accused of fixing traffic tickets. As part of an investigation ordered by the
Supreme Court of New Jersey, the state attorney general interviewed the officers,
25 Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964). 26 385 U. S. 493 (87 SCt 616, 17 LE2d 562) (1966).
13 warning them that they had a right to refuse to answer the questions, but if they
refused, they would be subject to removal from their jobs pursuant to a state statute.27
The United States Supreme Court ruled that the interviews were not voluntary
because “the choice imposed on [the officers] was one between self-incrimination or
job forfeiture.”28
Here, Boswell explained the interview scenario in this case. At the outset,
Boswell explained to Holzheuser that he was not in custody: “The door is not locked.
You’re free to leave at any time.” Holzheuser replied that he “definitely
underst[oo]d.” Boswell then read Holzheuser an acknowledgement and waiver of
rights stating:
I have the right to remain silent and make no statement at all[.] Any statement I make can be used against me in a trial by court-marshall or other judicial or administrative proceeding[.] I have the right to consult with a lawyer prior to any questioning. This lawyer may be a civilian lawyer retained by me at no cost to the United States, a military lawyer appointed to act as my counsel at no cost to me, or both[.] I have the right to have my retained lawyer and/or appointed military lawyer present during this interview[.] . . I may terminate this interview at any
27 See id. at 495. 28 Id. at 496.
14 time, for any reason. . . With that understanding, I have decided that I do not desire to remain silent, consult with a . . . lawyer, or have a lawyer present at this time. I make this decision freely and voluntarily. No threats or promises have been made to me.
Boswell explained to Holzheuser that these rights “are not going away. . . . [I]f you
would like to speak with us or you have anything that you want to say, we’re open to
hear it. But if you decide that you don’t, you can always exercise [the right not to
speak]. You can turn it off for any reason at any time.” Holzheuser agreed to sign the
waiver.
With respect to the circumstances surrounding the interview, at trial Boswell
explained that Holzheuser was not in custody at the time of the interview, but military
protocol requires that suspects be read the acknowledgment of rights due to the
influence of command:
[Military suspects] are under authority of a commanding officer. He had to come to our office that morning. We talked to his commanding officer. [Holzheuser] was sent there. Once he gets to the building, that’s done. He doesn’t have to speak to us, but we have to explain that, you were told to come here. You are not in custody. You are not under arrest. The door is not locked. You are free to leave at any time. We would like to speak to you. I’m going to go over your . . . rights. Once you’ve
15 acknowledged those, we’ll have a conversation if you want to. . .[W]hile they told you to come here, again, your part is over.
As explained by Boswell, Holzheuser was under an obligation to report to the
interview by virtue of the military command authority, but he was not under
obligation to speak or substantively engage in the interview, and he could invoke his
right to remain silent or leave at any time. Holzheuser cites no regulation or other law
requiring him to submit to the interview process and answer the investigators’
questions. This materially distinguishes the facts of this case from those in Garrity,
where the officers were under a statutory obligation to follow through with the
substance of the interview or be subject to discipline for not doing so.29 That
Holzheuser might be subject to discipline for the content of his interview did not
render the interview involuntary; if anything, it would militate against participating
in the interview, which Holzheuser elected to do with knowledge of his right to
remain silent. Further, Boswell’s urging Holzheuser to tell the truth in the interview
to help himself in the eyes of his commanding officers or eligibility for duty status
29 See id.
16 was not improper.30 Under these circumstances, an objection pursuant to Garrity
would not require exclusion of the interview, and this argument demonstrates no basis
for reversal.
(ii) Failure to object to the police interview on the ground that Holzheuser was
required to waive his Miranda rights to make a voluntary statement. Next,
Holzheuser argues that his trial counsel should have argued that he was misled into
waiving his rights because, as stated in his appellate brief, Holzheuser “would need
to waive his rights to speak to Agent Boswell as he [had] been ordered to do when his
‘Skipper called him in.’” Holzheuser points to Boswell’s statement that “before we
can really get into what has gone on . . . we need you to acknowledge your rights
before [we] get into that. They’re not going away.” Based on this, Holzheuser argues
that he was obligated to waive his rights in order to speak to investigators, which
contravenes the holding in State v. Darby: “[A] suspect can always make a
spontaneous, voluntary statement which would be admissible at trial. . . [More fully,
30 See Price v. State, __ Ga. __ (2) (825 SE2d 178) (2019) (“[I]t is permissible for the police to tell a suspect that the trial judge may [favorably] consider his truthful cooperation with the police.”) (punctuation omitted); Morales v. State, 337 Ga. App. 614, 617 (2) (b) (788 SE2d 535) (2016) (holding that exhortations to tell the truth are not improperly coercive).
17 a suspect can] make a voluntary statement, but . . . he [can] not be interrogated by the
officers, without signing the waiver.”31
In light of the facts before us, Holzheuser’s argument does not require reversal.
In Darby, the defendant made a spontaneous statement after invoking his right to
counsel, and the officers responded that “If you want to tell us your side of the story
you can — you know, you can sign off on a waiver and tell us your side of the
story.”32
Here, unlike in Darby, [Holzheuser] did not make a spontaneous statement or indicate that he wanted to do so. Instead, the agent explained that he was presenting him with his rights before proceeding with an “interview” about what had occurred. . . . After confirming that [Holzheuser] understood his rights, the agent began questioning him.33
Thus, this scenario presents no basis for reversal, had Holzheuser’s trial counsel
objected pursuant to the rule in Darby.34
31 (Citation omitted.) State v. Darby, 284 Ga. 271, 272 (1) (663 SE2d 160) (2008). 32 (Punctuation omitted.) Id. at 271. 33 Francis v. State, 296 Ga. 190, 195-196 (3) (A) (766 SE2d 52) (2014). 34 See id.
18 (c) Failure to request a downward deviation from the mandatory minium
sentence. In his last ineffective assistance claim, Holzheuser contends that his trial
counsel should have requested a downward deviation in his sentence pursuant to
OCGA § 17-10-6.2 (c) (1) (C). That Code section provides:
In the court’s discretion, the court may deviate from the mandatory minimum sentence35 [applicable to certain sexual offenses], or any portion thereof, when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum or provided that . . . [t]he court has not found evidence of a relevant similar transaction. . . .
Holzheuser has provided no evidence that the State would have agreed to a
downward deviation, nor has he demonstrated that the trial court felt constrained not
to exercise its discretion in his favor by his failure to request a lower sentence.
Nevertheless, even assuming the trial court would exercise its discretion in
Holzheuser’s favor, the trial court would be authorized to do so only if it did not find
35 Under OCGA § 17-10-6.2 (b), persons convicted of certain sexual offenses “shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to such sexual offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the court.”
19 evidence of a relevant similar transaction.36 The trial court did find such evidence,
and in light of our holding below in Division 2 affirming that ruling, the trial court
was not authorized to deviate from the statutory sentencing requirement in OCGA §
17-10-6.2. Accordingly, Holzheuser’s request would have been meritless, and this
argument fails.37
2. Holzheuser’s last argument is that the trial court erred by admitting evidence
under OCGA § 24-4-414. This rule provides that “[i]n a criminal proceeding in which
the [defendant] is accused of an offense of child molestation, evidence of the
accused’s commission of another offense of child molestation shall be admissible and
may be considered for its bearing on any matter to which it is relevant.”38 An “offense
of child molestation” includes transmitting to a child under 16 years old, by means
of an electronic device, images of a person engaging in an indecent act “with the
intent to arouse or satisfy the sexual desires of either the child or the person.”39
OCGA § 24-4-414 is “a rule of inclusion, with a strong presumption in favor of
36 See OCGA § 17-10-6.2 (c) (1) (C). 37 See Faust, 302 Ga. at 218 (4) (a). 38 OCGA § 24-4-414 (a). 39 OCGA §§ 24-4-414 (d) (1); 16-6-4 (a) (2).
20 admissibility, and the State can seek to admit evidence under these provisions for any
relevant purpose, including propensity. And a trial court’s decision to admit other acts
evidence will be overturned only when there is a clear abuse of discretion.”40
Here, after the State provided notice of its intent to admit evidence that
Holzheuser committed a prior act of child molestation, the court held a hearing,
reviewed the police report from the prior incident, and admitted the evidence. The
record shows that in 2013, an 11-year-old girl was staying at a local motel with her
family. On several occasions over the course of a week, when the girl walked to her
school bus in the morning, the girl observed notes in the window of a nearby hotel
room occupied by Holzheuser. One note said, “tap on the window to see my D-I-C-
K,” and another note said “I want to lick your P-U-S-S-Y.” Another time, the girl saw
a phone resting against the window and displaying a photo of a nude woman
receiving oral sex. The girl told her mother, and when they immediately came to look
for the sign, it was gone. The mother deduced by the timing of the notes that they
were directed at her daughter.
40 (Footnotes and punctuation omitted.) King v. State, 346 Ga. App. 362, 364 (1) (816 SE2d 390) (2018).
21 This record supports a finding that Holzheuser displayed indecent notes,
including an indecent image on his phone depicting oral sex, to the 11-year-old child
for sexual gratification. Accordingly, this would demonstrate a prior act of child
molestation,41 making the evidence admissible for the purpose of showing
Holzheuser’s lustful interest in minor girls of approximately the same age as the
victim in this case.42
The exception to the general rule that evidence of other crimes is not admissible has been most liberally extended in the area of sexual offenses[, particularly against minors]: In [such cases], evidence of similar previous transactions is admissible to show the lustful disposition of the defendant [toward underage children]. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged. 43
41 See OCGA § 16-6-4 (a) (2). 42 See OCGA § 24-4-414 (d) (1). 43 (Punctuation omitted.) Peterson v. State, 337 Ga. App. 70, 74 (785 SE2d 905) (2016) (decided under prior Evidence Code).
22 In light of the targeting of similarly-aged, female child victims, as well as the semi-
public nature of indecency in each case, the trial court did not abuse its discretion in
admitting the prior act evidence under OCGA § 24-4-414.
Judgment affirmed. Coomer and Markle, JJ., concur.