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Holzheuser v. State

Court of Appeals of Georgia, Fourth Division

June 12, 2019


          DOYLE, P. J., COOMER and MARKLE, JJ.

          Doyle, Presiding Judge.

         Following a jury trial, Robert Holzheuser was convicted of child molestation[1]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 website images admitted at trial, (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) 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.

         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 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 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 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 appeal.

         (a) Failure to object to the admission of website images.

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 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 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 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 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 documents.[15] The admission of evidence is reviewed only for an abuse of the trial court's discretion, [16] and based on the record before us, Holzheuser's argument does not demonstrate deficient performance on the part of his trial counsel.[17]

         (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."[18]

         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.[19] Holzheuser denied any sexual intent during his police interview, so 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.[20]

         (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 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, "[21] 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.[22] Boswell was careful to explain what the images were as well as what they were not, and the 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-Denno[23] 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, [24] 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, 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.[25]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."[26]

         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 ...

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