Court Affirms Probation Sentence in Child Porn Case

In State v. McCauley, the defendant was indicted on eight separate counts of sexual exploitation of children as a result of his possession of sexually explicit images of minors that were discovered on his cell phone. He entered a guilty plea and was facing a sentence of 5 to 20 years in prison. The trial court found that, pursuant to O.C.G.A. §17-10-6.2, the defendant was eligible for a deviation from the mandatory minimum sentence and gave him a sentence of straight probation.

The State appealed, arguing that the defendant was not eligible for a deviation because his case did not meet the factors enumerated in subsection (c)(1) of 17-10-6.2. The statute provides that the court may deviate from the mandatory minimum as long as certain factors are met. One of the factors is that the court must find that there is no “evidence of a relevant similar transaction.” The State contended that the defendant’s own testimony established the commission of additional child pornography offenses prior to the time of the instant offense.

The testimony that the State was referring to took place at the sentencing hearing. At that hearing, the defendant testified that he was 17 years old at the time of the offenses in the indictment. He stated that he used KIK on his cell phone to obtain the images. He further testified that he had first viewed images of child pornography on KIK approximately 12 to 18 months prior to him possessing the images charged in the indictment.

The State objected to the deviation on the grounds that since he first began viewing child pornography a year or so prior, this constituted evidence of a relevant similar transaction. The trial court found that the testimony merely established when he first started viewing and collecting the images and that this conduct was part of an ongoing child pornography offense that ultimately resulted in the charges in the indictment.

With respect to this argument, the Court of Appeals cited to the Georgia Supreme Court’s decision in Evans v. State where it was held that the term “relevant similar transaction” in the context of a sentencing determination is defined as “an independent but similar sexual offense that shows the defendant to be a repeat sexual offender.” Based on this holding, the Court of Appeals held that there was no merit to the State’s argument that the defendant’s prior viewing of child pornography constituted a relevant similar transaction sufficient to make him ineligible for a deviation from the mandatory minimum.

The State then made a second argument for the first time on appeal: that, based on the Evans decision, each sexual exploitation count charged in the indictment should be treated as a separate offense, and thus a relevant similar transaction to the other counts for purposes of sentencing. The Court of Appeals recognized that while the Supreme Court in Evans did state that, in some circumstances, separate counts in an indictment may be treated as relevant similar transactions for sentencing purposes, the decision did not establish a per se rule.

The Court noted that it would be for the sentencing court to determine whether separate counts in an indictment could be considered similar transactions in deciding whether a defendant qualifies for a deviation from the mandatory minimum. Since this argument was not made at the time of the defendant’s sentencing, the Court of Appeals remanded the case for the trial court to make a determination as to whether this part of the Evans decision would impact the defendant’s eligibility for a deviation.

As a result, the defendant’s probated sentence was left intact but the case was remanded back to the trial court for it to address this issue.