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McCullough v. State

Court of Appeals of Georgia

February 17, 2015


Page 139

Cert. applied for.

Sexual exploitation of children. Douglas Superior Court. Before Judge Emerson.

Judgment affirmed.

Steel Law Firm, Brian Steel, Garland, Samuel & Loeb, John A. Garland, for appellant.

Brian K. Fortner, District Attorney, Thomas E. Kegley, Assistant District Attorney, for appellee.

BARNES, Presiding Judge. Boggs and Branch, JJ., concur.


Page 140

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 F.App'x 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 [330 Ga.App. 717] 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 laptip 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.[1] The computer specialist also conducted a preliminary search of two other computers in the residence, including the roommate's desktop computer, and neither contained any images of child pornography. The computer specialist also discovered as part of her preliminary search that the GUID assigned by LimeWire to the specific computer sharing the child pornography matched the GUID on

Page 141

McCullough's laptop rather than the other computers at the residence.

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 [330 Ga.App. 718] 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).[2] The special agent asked McCullough if he understood his rights, and he responded, " I'm doubtful, I am just kind of numb," and " I don't really understand it." The special agent again asked McCullough if he understood his rights, if he wanted to speak with her, and if he wanted to give a reason for what the agents were finding, and he answered, " I guess not, I don't really have a reason." The special agent continued to seek a definitive answer from McCullough, who continued to give equivocal responses, including " I really don't have an explanation." Finally, the special agent asked, " You don't have a problem talking to me just like we are ...

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