Stephen Haynes v. State

• Court: Court of Appeals of Georgia
• Decided: August 8, 2012
• Docket: A12A0811
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

August 8, 2012

In the Court of Appeals of Georgia A12A0811. HAYNES v. THE STATE.

ADAMS, Judge.

Stephen Haynes was convicted by a jury on eight counts of sexual exploitation

of children. The trial court denied his motion for new trial, and he filed the present

appeal. We now affirm Haynes’ conviction, but remand for re-sentencing as more

fully set forth below.

1. Haynes first challenges the sufficiency of the evidence to support his

conviction, arguing that the State failed to prove that he had knowledge of the child

pornography images stored on his computer.

Haynes was charged pursuant to OCGA § 16-12-100 (b) (8), which makes it

unlawful “for any person knowingly to possess or control any material which depicts

a minor or a portion of a minor’s body engaged in any sexually explicit conduct.” In Barton v. State, 286 Ga. App. 49, 50 (1) (648 SE2d 660) (2007) we reversed the

defendant’s conviction for sexual exploitation because the evidence was insufficient

to show that he was aware that the images of child pornography were stored in his

computer’s temporary (cache) file folders. Id. at 52. Citing Barton, Haynes argues

his conviction must likewise be reversed. However, unlike Barton, in which the

evidence established only that the images of child pornography had been downloaded

automatically and stored in the defendant’s cache folders, in the case at bar the

evidence showed that the files containing the child pornography found on Haynes’

computer had been intentionally moved or downloaded to his computer and that the

files had been modified on various dates, all actions which indicated that the files did

not come to be on Haynes computer in some passive way. Further, the evidence

showed that Haynes told the officers when they arrived at his residence that he had

a computer located in his bedroom beside his bed, and it was on this computer that

the images were found. Haynes also admitted to the officers that he shared files on

the Internet using certain file sharing programs, including the program used to

download the images of child pornography. Although Haynes denied that he viewed

child pornography on his computer, the resolution of issues of credibility and

conflicting evidence was for the jury, not this Court, to resolve. Our review indicates

2 that the evidence presented at trial in this case was sufficient under the standard of

Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); thus Haynes’

challenge to the sufficiency of the evidence is unavailing. Dickerson v. State, 304 Ga.

App. 762, 765-766 (2) (697 SE2d 874) (2010).

2. Citing State v. Kramer, 260 Ga. App. 546 (580 SE2d 314) (2003) (physical

precedent only), Haynes next argues that the trial court erred by denying his motion

to suppress the evidence of child pornography seized from his computer because a

search warrant executed at his residence was overly broad and failed to particularly

describe the items to be searched. However, Kramer, in which one judge concurred

in the judgment only, is not binding authority. Court of Appeals Rule 33 (a). Further,

in that case we affirmed the trial court’s suppression of the videotapes seized pursuant

to a warrant that authorized the seizure of “VHS videotapes” used, inter alia, in the

crime of child molestation because there was absolutely no evidence that the victim

was exposed to any of the videotapes. Id. at 548. McIntyre v. State, 311 Ga. App. 173,

175-176 (2) (a) (715 SE2d 431) (2011). Thus, Kramer is not controlling here.

And, as to the particularity with which the items were described, we have held

on numerous occasions that “[w]hen circumstances make an exact description of

instrumentalities a virtual impossibility, the searching officer can only be expected

3 to describe the generic class of items he is seeking.’. . . Butler v. State, 130 Ga. App.

469, 473 (2) (203 SE2d 558) (1973).” Smith v. State, 274 Ga. App. 106, 110 (3) (616

SE2d 868) (2005) (“warrants general description of items evidencing ‘child

molestation and sexual exploitation of children in violation of OCGA § 16-12-100.2

sufficient’).” Applying that test here, we find the description of the items relating to

the charge of sexual exploitation of children was sufficient.

Further, even assuming without deciding that the warrant in this case was

overly broad because it authorized the seizure of images that could, as Haynes argues,

“be irrelevant to a sexual exploitation of minors investigation,” there is nothing to

indicate that a broader seizure in fact occurred and thus nothing to indicate any harm.

Indeed, where a search as it was actually conducted is lawful, “‘it is not rendered

invalid merely because the warrant pursuant to which it was made was overbroad(.)’

[Butler v. State, 130 Ga. App. 469, 474 (2) (203 SE2d 558) (1973).]” Jones v. State,

313 Ga. App. 590, 594 (2) (722 SE2d 202) (2012).

3. Citing the recent Supreme Court case of Hedden v. State, 288 Ga. 871 (708

SE2d 287) (2011), Haynes argues that the trial court erred by determining that it had

no discretion, pursuant to OCGA § 17-10-6 (c), to deviate from the mandatory

minimum sentencing provisions set forth in OCGA § 17-10-6.2 (b). The State

4 concedes, and we agree, that Hedden is controlling here and that, therefore, Haynes’

sentence must be vacated and the case remanded for re-sentencing. E.g., Hatcher v.

State, ___ Ga. App. ___ (Case No. A11A2416, decided March 15, 2012); Tindell v.

State, 314 Ga. App. 91, 92 (722 SE2d 921) (2012).

Judgment affirmed, sentence vacated and case remanded with direction.

Barnes, P. J., and McFadden, J., concur.