BARNES, Presiding Judge.
Based on evidence that he had multiple videos of child pornography on his laptop computer, a jury found Kyle Jameson McCullough guilty of five counts of sexual exploitation of children. McCullough filed a motion for a new trial, which the trial court denied. On appeal, McCullough contends that the trial court committed plain error in its charges to the jury on the law of deliberate ignorance, equal access, and the use of custodial statements for impeachment purposes. For the reasons discussed below, we conclude that there was no plain error and therefore affirm.
"Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict." Anthony v. State, 317 Ga.App. 807, 732 S.E.2d 845 (2012). So viewed, the evidence showed that on January 7, 2010, an undercover detective with the Paulding County Sheriff's Office conducted a search for child pornography on LimeWire, a peer-to-peer file-sharing program that was available for free over the Internet at the time in question, and which allowed users to search for and download files stored in a shared folder on other users' computers. See United States v. Conner, 521 Fed.Appx. 493, 494-495 (6th Cir.2013) (explaining LimeWire); United States v. Stults, 575 F.3d 834, 842 (8th Cir.2009) (same). The detective used specialized software developed by the Federal Bureau of Investigation to detect files that LimeWire users made available for download that might contain child pornography. Using this software, the investigator identified four suspicious files made available for sharing by a particular computer, downloaded them, and confirmed that they contained images of child pornography. On January 30, 2010, the detective downloaded an additional file containing child pornography while searching LimeWire that appeared to come from the same computer.
Through a subpoena to the internet service provider, the detective traced the Internet Protocol ("IP") address for the computer sharing the child pornography to the residence where McCullough and his roommate resided in Douglas County. The detective also was able to identify the "GUID," or "global unique identifier," that had been assigned by LimeWire to the specific computer sharing the child pornography. The detective turned over copies of the child pornography files that he had downloaded and placed on an encrypted disk, the IP address information, and the GUID information to the Georgia Bureau of Investigation (the "GBI"), which applied for and obtained a search warrant for the residence of McCullough and his roommate.
On April 28, 2010, special agents with the GBI and the Douglas County Sheriff's Office executed the search warrant for child pornography at the residence. McCullough and his roommate, along with McCullough's girlfriend, were present at the time of the search. During the search, agents found McCullough's Toshiba laptop computer with his wallet and cell phone on top of it on the nightstand next to his bed. A GBI forensic computer specialist conducted a preliminary search of McCullough's laptop and discovered images of child pornography, leading the GBI agents to seize the laptop so that a more complete forensic analysis could be conducted.
During the execution of the search warrant, McCullough, his roommate, and his girlfriend were brought into the living room of the residence, where an investigator with the Douglas County Sheriff's Office stayed with them. McCullough, who was "visibly upset," asked the investigator "what was going on." When the investigator told McCullough that the search warrant was for child pornography, McCullough began rocking back and forth and rubbing his face with his hands, and he told the investigator that he did not think that he could get in trouble for having "it" on his computer. McCullough also told the investigator that his friends had used his computer from time and time and he did not know what they had viewed. However, McCullough admitted to the investigator that he had looked "at animals and other crazy stuff" on his computer, but insisted that he was not a pedophile.
One of the GBI special agents carried a digital audio recorder to memorialize any statements made to her during the execution of the warrant. The special agent first spoke separately with McCullough's roommate, who denied that he had ever used McCullough's laptop. After speaking with the roommate, the GBI special agent approached McCullough and read to him from a form advising him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
McCullough was arrested and transported to the Douglas County Sheriff's Office, where the GBI special agent again advised him of his rights under Miranda in a video recorded interview. McCullough initially invoked his right to counsel but initiated further communication with the special agent about what was taken from his residence.
McCullough was indicted and tried before a jury on five counts of sexual exploitation of children for the child pornography discovered on his laptop. At trial, the State introduced into evidence disks containing the 41 videos of child pornography discovered on McCullough's laptop and played portions of them to the jury, and called as witnesses the previously mentioned law enforcement officials who testified to events as summarized above. Additionally, the State called McCullough's roommate as a witness, who denied ever using McCullough's laptop or searching for or viewing child pornography on his own desktop computer. Portions of the audio recording of the statements made by McCullough at his residence during the execution of the search warrant, and of the video recording of his statements made at the Douglas County Sheriff's Office, also were introduced and played for the jury. Lastly, the State presented expert forensic testimony aimed at linking McCullough to the LimeWire program on his laptop and the downloads of child pornography through texts and pictures found on his cell phone.
McCullough did not contest that his laptop contained child pornography. Rather, McCullough's sole defense was that he did not know that the child pornography was on his laptop and that his roommate had equal access to the his laptop and thus had the opportunity to place the child pornography on it without his knowledge. To support his theory of the case, McCullough called defense witnesses who testified that they had seen McCullough's roommate using his laptop. McCullough also presented the testimony of an expert forensic computer specialist in an effort to discredit the testimony of the State's expert and link the roommate to the laptop. McCullough himself elected not to testify.
Following the presentation of the conflicting witness testimony, the parties' closing arguments, and the charge of the trial court, the jury found McCullough guilty of the charged offenses. McCullough moved for a new trial, and the trial court denied the motion. This appeal followed in which McCullough challenges three jury charges given by the trial court and argues that he is entitled to a new trial.
Because McCullough did not object at trial to the jury charges that he now challenges on appeal, we review the charges only for plain error. See OCGA § 17-8-58(b); Booker v. State, 322 Ga.App. 257, 260(2), 744 S.E.2d 429 (2013).
(Citations and punctuation omitted.) Brown v. State, 318 Ga.App. 334, 338(3), 733 S.E.2d 863 (2012). "Satisfying all four prongs of this standard is difficult, as it should be." (Citation and punctuation omitted.) Kelly, 290 Ga. at 33(2)(a), 718 S.E.2d 232. Mindful
1. McCullough first contends that the trial court committed plain error by charging the jury on the law of deliberate ignorance. Specifically, the trial court charged the jury:
The trial court provided the jury with a copy of the jury charges for their deliberations.
It was error for the trial court to charge the jury on the law of deliberate ignorance. As we have explained, a jury charge on deliberate ignorance or wilful blindness is
Hutchins v. State, 326 Ga.App. 250, 259(3), 756 S.E.2d 347 (2014), quoting Williamson v. State, 300 Ga.App. 538, 549(6), 685 S.E.2d 784 (2009). Here, there was no evidence that McCullough was aware of a high probability of the existence of child pornography on his laptop and purposefully contrived to avoid learning of this fact to have a defense in the event of criminal prosecution. Rather, the conflicting evidence pointed either to McCullough having actual knowledge of the child pornography on his laptop or no knowledge at all. Accordingly, the trial court erred in charging the jury on deliberate ignorance.
Even if the jury charge on deliberate ignorance was erroneous and the error was obvious, the error does not rise to the level of plain error because McCullough cannot demonstrate that it affected the outcome of the trial court proceedings. "[P]lain-error analysis, which must be distinguished from harmless-error analysis, requires the appellant to make an affirmative showing that the error probably did affect the outcome below." (Citations and punctuation omitted.) Shaw v. State, 292 Ga. 871, 873(2), 742 S.E.2d 707 (2013). Under the facts of this case, the charge on deliberate ignorance was clearly irrelevant and did not touch on any of the issues raised by the parties. Indeed, the charge on deliberate ignorance was embedded in a charge on the defendant's knowledge of the age of the children depicted in the pornography, and McCullough never disputed that the children in the videos found on his laptop were minors and never asserted that he knew about the pornography but was unaware that the children were minors. In this context, the charge on deliberate ignorance was nothing more than surplusage that was unlikely to mislead or confuse the jury about the real issue in dispute — whether McCullough or his roommate downloaded the child pornography on the laptop.
"Though a part of the charge of the court to the jury may not be pertinent to the issues involved, if it be so clearly irrelevant to such issues that the jury could not have been misled or confused by the giving of such instruction, a new trial will not be granted upon the ground that it was error to give it." (Citation and punctuation omitted.) Duncan v. State, 101 Ga.App. 504, 506(1), 114 S.E.2d 376 (1960). See Brown v. State, 211 Ga.App. 267, 438 S.E.2d 713 (1993) (no reversible error where charge at issue was mere "surplusage") (citation and punctuation omitted). That is the situation here, and thus we find that the trial court's charge on deliberate ignorance did not constitute plain error.
(Emphasis supplied.)
"A charge on equal access is appropriate to counter a jury instruction on presumption of possession[.] Equal access is merely a defense available to the accused to whom a presumption of possession flows." (Citation and punctuation omitted.) McLean v. State, 291 Ga. 873, 878(5)(a), 738 S.E.2d 267 (2012). Under the law of equal access, the presumption of possession arising from ownership is rebuttable and does not apply where the evidence shows that a person or persons other than the owner had equal access to the property at issue and thus equal opportunity to possess the contraband. Reyes v. State, 322 Ga.App. 496, 499(3), 745 S.E.2d 738 (2013).
According to McCullough, the trial court's charge on the law of equal access was erroneous because of the italicized language regarding the defendant's knowledge, which the trial court added at the request of the State. McCullough contends that the italicized language could have misled and confused the jury into mistakenly believing that it could not acquit McCullough if he had knowledge that other persons had even the opportunity to place child pornography on his laptop. We are unpersuaded in light of the jury charges read together as a whole.
In addition to the previously quoted charges, the trial court charged the jury that "[k]nowledge that these videos were on the computer hard drive ... is an essential element of the crime," and that the offense of sexual exploitation of children is committed when the defendant "knowingly possesses" the child pornography at issue. The trial court also charged the jury on actual and constructive possession and explained that "a person who knowingly has direct physical control over a thing at a given time is in actual possession of it," while a person who "knowingly has the power and intention at a given time to exercise authority or control over a thing is in constructive possession of it." The trial court went on to charge the jury on sole and joint possession and further charged the jury that it "would be authorized to convict only if [it] should find beyond a reasonable doubt that the defendant had actual or constructive possession either alone or jointly with others."
When these combined charges are read together, it would have been clear to the jury that to convict McCullough, he had to knowingly possess the child pornography found on his laptop, either alone or jointly with others. The combined charges further make clear that the presumption of possession of the child pornography arising from McCullough's ownership of the laptop could be rebutted by evidence that others had equal access to the laptop. Furthermore, to the extent that the italicized language regarding knowledge could have potentially led to any confusion, that confusion was removed by the subsequent sentence of the charge making clear that to be convicted, McCullough had to have knowingly possessed the child pornography, or have shared possession or control of the child pornography with another person and helped or procured the other person in possessing and having control of that pornography. Accordingly, when the jury charges are read as a whole, we discern no error, much less plain error, arising from the italicized language that McCullough challenges on appeal.
3. Lastly, McCullough contends that the trial court committed plain error in its charge to the jury regarding the use of his audio-recorded statement made to the GBI special agent for impeachment purposes. With regard to McCullough's audio-recorded statement made during the execution of the search warrant at his residence, the trial court charged the jury to first determine whether McCullough was advised of his Miranda rights and, if so, whether he knowingly and voluntarily waived those rights before making his statement. The trial court further charged the jury:
(Emphasis supplied.) McCullough contends that, because he did not testify at trial, the inclusion of the phrase "except for purposes of impeachment" was plain error because it allowed the jury to consider his audio-recorded statement even if the jury found that his
McCullough is correct that the inclusion of the phrase "except for purposes of impeachment" was erroneous because he did not testify at trial and thus the charge was not adjusted to the evidence. See Jackson v. State, 191 Ga.App. 362, 363, 381 S.E.2d 759 (1989) ("The instructions of a trial court in a criminal case must be ... adjusted to the evidence admitted in court."). But even so, it did not rise to the level of plain error because McCullough cannot demonstrate that it affected the outcome of the trial.
In Byrd v. State, 325 Ga.App. 24, 29-30(2)(b), 752 S.E.2d 84 (2013), we addressed the same charge at issue here and concluded that the trial court erred by including the phrase "except for purposes of impeachment" because the defendant did not testify at trial. But we pointed out that the trial court also charged the jury on the general law of impeachment, namely, that "a witness may be impeached by disproving the facts to which the witness testified or by proof of contradictory statements previously made by the witness about matters relevant to the witness's testimony and to the case." (Punctuation omitted.) Id. at 30(2)(b), 752 S.E.2d 84. Based on the charge on the general law of impeachment, we reasoned that the jury would have understood that impeachment only applies to witnesses who testify at trial, and given that the defendant did not testify or call any defense witnesses, we concluded that any error from the inclusion of the phrase "except for purposes of impeachment" was harmless. Id. See Biswas v. State, 255 Ga.App. 339, 343-344(3), 565 S.E.2d 531 (2002) (any error in giving a charge on impeachment was harmless where defendant did not testify at trial and there was no testimony that could have been impeached).
Here, as in Byrd, the trial court charged the jury on the general law of impeachment. However, McCullough argues that the present case is distinguishable from Byrd because McCullough called several defense witnesses at trial, and the jury could have been confused into believing that it could consider his audio-recorded statement to impeach the testimony of those witnesses, even if it found that the statement was obtained in violation of his Miranda rights.
We need not resolve whether the trial court's general charge on impeachment could have led the jury to mistakenly consider McCullough's audio-recorded statement to impeach other defense witnesses. Even if that were true, there still would be no plain error. The trial court's charges on Miranda and the voluntariness of a defendant's custodial statements were expressly limited to McCullough's audio-recorded statement made during the execution of the search warrant at his residence and did "not apply to the video statement" made by McCullough at the Douglas County Sheriff's Office. As previously noted, McCullough expressly waived any jury instruction on whether he had asserted or waived his right to counsel during his interrogation at the Douglas County Sheriff's Office or on whether his statements during that interrogation were voluntary. Hence, the jury had before it and was authorized to consider McCullough's video-recorded, incriminating statements made at the Douglas County Sheriff's Office, irrespective of whether it found that his prior audio-recorded statement made during the execution of the search warrant was obtained in violation of Miranda. The jury also had before it McCullough's initial incriminating statements made to the Douglas County investigator in the living room during the execution of the search warrant that were not included on the audio recording made by the GBI special agent. Under these circumstances, McCullough cannot demonstrate that any error in the charge relating to his audio-recorded statement had any affect on the outcome at trial, and thus cannot establish plain error. See generally Cane v. State, 285 Ga. 19, 20-21(2)(a), 673 S.E.2d 218 (2009) (improper admission of statement harmless when cumulative of other statements admitted and considered by the jury).
Judgment affirmed.
BOGGS and BRANCH, JJ., concur.
We also concluded that the trial court erred in its charge to the jury on deliberate ignorance in Able v. State, 312 Ga.App. 252, 260-261(3)(b), 718 S.E.2d 96 (2011), and Hutchins, 326 Ga.App. at 258-259(3), 756 S.E.2d 347. However, in both of those cases, the charge erroneously equated knowledge and intent, like the charge in Williamson. See Able, 312 Ga.App. at 260-261(3)(b), 718 S.E.2d 96; Hutchins, 326 Ga.App. at 259(3), 756 S.E.2d 347. Moreover, in both Able and Hutchins, we did not reach the issue of whether the charge was prejudicial because we had already determined in a prior division of those opinions that a retrial was necessary on other grounds. See Able, 312 Ga.App. at 258(2), 718 S.E.2d 96; Hutchins, 326 Ga.App. at 258(2), 756 S.E.2d 347.