MCFADDEN, P. J., RAY and RICKMAN, JJ.
jury trial, Steven Lee Lindley was convicted of fourteen
counts of sexual exploitation of a child. On appeal, Lindley
contends that: (1) the evidence was insufficient to sustain
his conviction; (2) the State failed to prove that the
offenses occurred within the statute of limitations; and (3)
the State failed to establish venue. Because there was
insufficient evidence to sustain Lindley's convictions,
appeal from a criminal conviction, the evidence is viewed in
a light most favorable to the verdict." Stephens v.
State, 247 Ga.App. 719, 719 (545 S.E.2d 325) (2001). We
neither weigh the evidence nor judge witness credibility, but
only determine "whether, after viewing the evidence in
the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99
S.Ct. 2781, 61 L.Ed.2d 560) (1979) (Emphasis in original.).
"So long as there is some competent evidence, even
though contradicted, to support each element of the
State's case, the jury's verdict will be
upheld." McLeod v. State, 245 Ga.App. 668, 669
(1) (538 S.E.2d 759) (2000). Even construed in favor of the
verdict, however, the evidence in the instant case does not
support Lindley's convictions.
record shows that Detective Faulkner of the Hall County
Sheriff's Office investigates crimes against children and
internet crimes. After the State tendered Faulkner as an
expert, he testified that he routinely uses software that
identifies people who are downloading and sharing known
images or files related to child pornography. In August 2016,
the software identified an IP address, which he ultimately
determined was from a computer located at 5460 Wood Run Drive
in Braselton, Georgia. Faulkner obtained a search warrant to
search the residence on August 29, 2016.
the police executed the warrant on the next day, Christy
Thompson was at the residence alone. While the officers
searched, Thompson made phone calls and two other residents
arrived, her husband, Graham Thompson, and Samuel North.
Faulkner testified that Thompson sent Lindley instant
messages because he did not have a cell phone, but he did not
return to the residence while the warrant was being executed.
Although not introduced as evidence, both parties stated in
opening argument that Lindley is Thompson's son.
her husband, and North were all cooperative and surrendered
their electronic devices to law enforcement. In total, 21
items were seized that day. On the next day, Thompson turned
in a black Samsung tablet, supplied the pass code for the
tablet, and a search warrant was obtained so that its
contents could be forensically examined. When called to
testify as to her conduct throughout the investigation,
however, Thompson invoked her Fifth Amendment right not to
forensic examination of the tablet was conducted by Officer
Talley. Talley found approximately100 videos and 100
photographs on the tablet. Fourteen of those images depicted
minors engaged in sexually explicit conduct, and the others
included images of Lindley and regular pornography. Faulkner
testified that the download of the images on the device was
initiated sometime between August 1 and 2. The images of
Lindley, the tablet, and the fourteen images that served as
the basis for the indictment were displayed to the jury and
admitted into evidence during Officer Talley's testimony.
Officer Talley explained that the device's search history
included phrases normally used by individuals seeking child
pornography, such as PTHC, an acronym for "pre-teen hard
core, " "hussy fan, " and "pedo."
After the forensic examination was completed, Faulkner
obtained an arrest warrant for Lindley.
additional evidence in this case, the State presented
testimony from Faulkner that all of these events occurred in
Hall County. The State also offered an expert in adolescent
physiology and anatomy, who testified that the children
depicted in the images were all minors.
jury convicted the defendant of 14 counts of child
exploitation, and he was sentenced to 20 years to serve
followed by 20 years on probation. This appeal followed.
Lindley's convictions were based on violations of OCGA
§ 16-12-100 (b) (8), which provides that "[i]t is
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 his
first enumeration of error, Lindley does not contest that
there was child pornography on the tablet. Rather, he argues
that there was no evidence that the tablet belonged to him,
that he was connected to Thompson, or that he possessed the
tablet after the images were downloaded. We are constrained
Barton v. State, 286 Ga.App. 49, 51 (1) (648 S.E.2d
660) (2007), we reversed 106 convictions of sexual
exploitation of children because the State failed to prove
that the defendant knowingly possessed child pornography.
Although the issue there was slightly different from that
involved here, the principles in that case support a reversal
here. We explained that "a person who knowingly has
direct physical control over a thing at a given time is in
actual possession of it. A person who, though not in actual
possession, knowingly has both the power and the intention at
a given time to exercise dominion or control over a thing is
then in constructive possession of it." Id. at
52 (1). Here, there was no evidence that Lindley knowingly
had direct or constructive possession of the child
pornography images on the tablet. We noted in
Barton, which was a case of first impression, that
other jurisdictions had concluded that "possession . . .
can result only where the defendant exercises dominion and
control over the child pornography." Barton,
286 Ga.App. 51 (1) (punctuation omitted). We later
interpreted Barton in Gerbert v. State, 339
Ga.App. 164, 170 (2) (b) (i) (793 S.E.2d 131) (2016),
explaining that we reversed the convictions because "the
State failed to show that the defendant, who had images of
child pornography located in his computer's cache, took
some affirmative action to save or download those images to
his computer or had knowledge that his computer automatically
saved those files." Here, there was no evidence that
Lindley owned the device, or that it was he who had searched
for and saved the images to the tablet.
to OCGA § 24-14-6, "[t]o warrant a conviction on
circumstantial evidence, the proved facts shall not only be
consistent with the hypothesis of guilt, but shall exclude
every other reasonable hypothesis save that of the guilt of
the accused." Whether alternative hypotheses are
reasonable is generally a question for the jury, and this
Court will not disturb the jury's findings unless they
are unsupportable as a matter of law. See Wise v.
State, 325 Ga.App. 377, 381 (2) (752 S.E.2d 628) (2013).
The jury's findings in this case are unsupportable
because the evidence did not exclude every other reasonable
Talley testified that Cellebrite, the program he used to
examine the tablet, extracts data from the device and
transfers it to his computer; that he then sorts the images
using key words or by skin tone and size; and that the
information retrieved from the tablet does not mirror how the
tablet stored the information but was instead a "data
dump" that would not have included information such as
GPS coordinates or the "delete time, change time, [or]
read time." He explained that if the software was able
to determine when the images were created, the last time they
were modified, or the last time the user changed it or viewed
it, that information would show up in his report. However,
the only such dates contained in the report were attached to
one image of Lindley, dated August 16, 2016, and an image of
a child, dated October 27, ...