CourtListener 10679772

Testo completo

315 Ga. 133
FINAL COPY

S22A0498. WINSLOW v. THE STATE.

BETHEL, Justice.

William Sanford Winslow was convicted on four counts of

sexual exploitation of children in connection with his possession of

two videos depicting children engaged in sexually explicit conduct.

The videos were found on his laptop computer by law enforcement.

On appeal, Winslow raises three enumerations of error: (1) the trial

court erred by denying his motion to suppress evidence obtained

from a search of his laptop; (2) facial and as-applied challenges to

the sentencing scheme of OCGA § 16-12-100 (f) (1); and (3) the trial

court erred by failing to merge all counts of the indictment together

for sentencing under Edvalson v. State, 310 Ga. 7 (849 SE2d 204)

(2020).1

convictions. However, because the trial court should have sentenced

Winslow on only one count and merged the remaining counts for

sentencing, see Edvalson, 310 Ga. at 8, 10, we vacate the sentences

imposed by the trial court and remand for resentencing. And,

because we vacate these sentences, we do not reach Winslow’s as-

applied challenge to OCGA § 16-12-100 (f) (1).

1. Viewed in the light most favorable to the verdicts, the

evidence presented at trial showed the following. On November 4,

2018, Sergeant David Asbell with the Forsyth Police Department

sexual exploitation of children (Counts 1-4). Counts 1 and 3 were both based
on the possession of the same video. Counts 2 and 4 were both based on the
possession of a second, different video. The counts differed in the date of
possession. Counts 1 and 2 were based on Winslow’s possession of both videos
on November 4, 2018, the date the laptop was seized. Counts 3 and 4 were
based on Winslow’s possession of both videos on September 15, 2018, the date
the videos were downloaded to the laptop.
At a jury trial held in September 2021, Winslow was found guilty of all
counts. The trial court sentenced him to a total of 35 years, with the first 20
years to be served in confinement and the remaining 15 years to be served on
probation. This sentence included fifteen years in confinement for Count 1 and
twenty years (five years served in confinement with fifteen years on probation)
on Count 2 to serve consecutively to Count 1. The trial court merged Count 3
with Count 1 and Count 4 with Count 2.
Winslow filed a timely notice of appeal directed to this Court, raising
constitutional challenges to OCGA § 16-12-100. The case was docketed to this
Court’s April 2022 term and submitted for a decision on the briefs.
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responded to a call from a Walmart in Monroe County because a

man, later identified as Winslow, was printing photographs that

were making a store clerk uncomfortable. Winslow was attempting

to purchase five printed photos from the self-serve printing kiosk,

and each photo depicted different children, and one computerized

depiction of a child, presented in a manner that is fairly described

as sexualized in nature. The employee also observed Winslow

attempt to hide the photos from view when another Walmart patron

asked if the children in the photos were Winslow’s.

After arriving at the store, Sergeant Asbell approached

Winslow, whom the Sergeant already knew, and asked to speak with

him outside the store. Winslow told Sergeant Asbell that the photos

were of members of Winslow’s family, but Sergeant Asbell knew

Winslow’s family and testified that he knew that these children were

not members of Winslow’s family. Sergeant Asbell then asked

Winslow if he had “any other photos that would be images that he

shouldn’t have,” and more specifically, whether he had any other

pictures of children. Winslow responded that he did not, and he told

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Sergeant Asbell that he could check. Sergeant Asbell asked if he

could open Winslow’s bag to check. Winslow said “yes” but that there

was “nothing there.”

When Sergeant Asbell looked in the bag, he noticed a laptop

computer. While present with Winslow, Sergeant Asbell attempted

to turn the laptop on but was unable to access any information on

the computer because it had trouble starting. The record before us

does not indicate whether Sergeant Asbell asked Winslow whether

he could check the contents of the laptop. Likewise, the record is

silent as to whether Winslow did or said anything while Sergeant

Asbell was attempting to access the information on the laptop.

Continuing his search of the contents of Winslow’s bag,

Sergeant Asbell found seven thumb drives. Sergeant Asbell asked

Winslow if there was anything on the thumb drives, and Winslow

responded that the thumb drives were empty but that Sergeant

Asbell could check them. Sergeant Asbell then checked three of the

thumb drives by plugging them into his own laptop. The first drive

only contained an installer program for Microsoft Windows, and the

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second thumb drive was blank. The third thumb drive, however,

contained a folder labeled “Billy’s porn” with two media files in it.

The first file contained photographs of Winslow. Sergeant Asbell

described the second file as containing multiple images of naked

children. After viewing these photos, Sergeant Asbell ended his

search of the thumb drives and arrested Winslow for sexual

exploitation of children.

The GBI searched Winslow’s laptop roughly 14 months later

following the issuance of a warrant. The GBI attributed the delay in

searching the laptop to a backlog of other tasks. During that search,

an agent found two videos containing what the agent considered to

be child pornography. Digital records showed that both videos were

downloaded to Winslow’s laptop on September 15, 2018, at 1:15 a.m.

Winslow moved to suppress all of the electronic evidence,

arguing that the search was conducted without his consent and with

an invalid warrant. More specifically, he argued that his consent did

not extend to a full forensic search of the laptop and had long

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expired. Additionally, Winslow argued that the warrant2 had

expired before the GBI search of the laptop commenced because of a

ten-day execution requirement both within the warrant itself and

pursuant to OCGA § 17-5-25; that the warrant was void because it

was obtained in a different judicial district than where the evidence

was housed; and the affidavit supporting the search warrant lacked

probable cause.

Following a hearing, the trial court denied the motion to

suppress. The court determined that Winslow consented to the

search of his laptop, that his consent was never withdrawn, that the

search was valid, and that the search was conducted in a reasonable

amount of time.

2. Winslow challenges the trial court’s denial of his motion to

suppress, arguing that he did not consent to the search of his laptop

and that the State did not have a valid search warrant for the laptop

2 The warrant was issued by a Judge of the Superior Court of Monroe

County on February 4, 2020. It authorized a search of the laptop, seven thumb
drives, and a cell phone seized from Winslow on November 4, 2018, for child
pornography. The warrant noted that the evidence was located in DeKalb
County at the time the warrant was issued.
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because the warrant had expired, it was issued in a different county

than where the evidence was located, and the supporting affidavit

lacked probable cause. For the reasons explained below, we conclude

that the court did not err in finding that Winslow consented to the

search.

It is well settled that a valid consent to a search
eliminates the need for either probable cause or a search
warrant. In order to justify a warrantless search on the
grounds of consent, the State has the burden of proving
that the consent was freely and voluntarily given under
the totality of the circumstances. It is only by analyzing
all the circumstances of an individual consent that it can
be ascertained whether in fact it was voluntary or coerced.

(Citations and punctuation omitted.) Brooks v. State, 285 Ga. 424,

425-426 (677 SE2d 68) (2009). “[T]he standard for measuring the

scope of a suspect’s consent under the Fourth Amendment is that of

objective reasonableness — what would the typical reasonable

person have understood by the exchange between the officer and the

suspect?” (Citation and punctuation omitted.) State v. Turner, 304

Ga. 356, 360 (1) (a) (818 SE2d 589) (2018). Further, constrained by

that limitation, “[o]nce consent is legally obtained, it continues until

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it is either revoked or withdrawn.” Woods v. State, 258 Ga. 540, 542

(2) (371 SE2d 865) (1988).

This Court will not disturb a trial court’s findings of fact in

ruling on a motion to suppress unless they are clearly erroneous.3

See Doleman v. State, 304 Ga. 740, 743 (2) (822 SE2d 223) (2018).

When reviewing the trial court’s findings of fact, “this Court

construes the evidence most favorably to upholding the trial court’s

findings and judgment and will not disturb the trial court’s findings

3 It is not entirely clear whether a determination of the scope of consent

to search provided by a suspect is a question of fact to be determined solely by
the trial court or a question of law that we consider de novo. Compare Varriano
v. State, 312 Ga. App. 266, 268-269 (718 SE2d 14) (2011) (reviewing the trial
court’s determination of the appellant’s scope of consent for clear error), United
States v. Watkins, 760 F3d 1271, 1283 (II) (B) (1) (11th Cir. 2014) (noting that
the district court’s finding that “unlimited consent to a search of [the
appellant’s] computers [was given] was not clear error”), and United States v.
Martel-Martines, 988 F2d 855, 858 (II) (8th Cir. 1993) (noting that the scope of
a suspect’s consent to search is reviewed for clear error), with Martinez v. State,
347 Ga. App. 675, 683 (C) (ii) (820 SE2d 507) (2018) (noting that although
“[r]eviewing the reasonable scope of the search will largely be a fact-specific
inquiry,” that “determination remains a question of law that we review de
novo” (citation and punctuation omitted)), and United States v. Stewart, 93 F3d
189, 192 (I) (5th Cir. 1996) (determining that the scope of a suspect’s consent
to search “is a question of law reviewed de novo”). But Winslow has not argued
that this is a question of law, and instead the parties have litigated the
question as a fact-intensive one. So although we take the arguments as they
come and treat it as a question of fact in this case, this opinion should not be
understood as deciding the thorny question of which standard of review is
properly applied in future cases.
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of fact if there is any evidence to support them.” Id. “[T]he trial

court’s application of the law to undisputed facts is subject to de novo

review. . . .” (Citation and punctuation omitted.) State v. Palmer, 285

Ga. 75, 78 (673 SE2d 237) (2009).

Here, the trial court found that Winslow consented to the

search of his bag and all of its contents, including digital information

contained on the laptop, and that this consent was never withdrawn.

The record contains evidence supporting those findings. Specifically,

the evidence shows that Winslow knew that Sergeant Asbell was

searching for photographs of children and Winslow gave him

permission to check his bag, which contained his laptop. When

searching the bag in the presence of Winslow, Sergeant Asbell

attempted to search the digital contents of Winslow’s laptop, and

there is nothing in the record that indicates that Winslow ever

complained or told Sergeant Asbell that he could not search the

laptop itself. See United States v. Harris, 928 F2d 1113, 1117-1118

(IV) (11th Cir. 1991) (noting that “importantly, [the defendant] was

physically present while [the officer] searched the car, and had

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ample opportunity to limit the scope of the search, or request that it

be discontinued” while concluding that the district court reasonably

found that the defendant’s consent extended to a search of luggage

in the trunk of a car); Lance v. State, 275 Ga. 11, 20 (19) (a) (560

SE2d 663) (2002) (rejecting a claim that a search was unlawful

because a signed form granting consent to search was too

generalized and noting that the appellant “attended the actual

search and never withdrew his consent”), disapproved on other

grounds by Willis v. State, 304 Ga. 686, 706 (11) (a) n.3 (820 SE2d

640) (2018); Bohannon v. State, 251 Ga. App. 771, 773 (2) (555 SE2d

112) (2001) (concluding that no error occurred where the trial court

concluded that the defendant’s consent to search a garage

encompassed a locked toolbox located inside the garage, noting that

the appellant was “present and watching . . . [but] did not register

any objection to the officers’ search”).4

4 Winslow’s silence alone would not be sufficient to establish consent

without the other facts indicating the context of his expressed consent for
Sergeant Asbell to search Winslow’s bag, which contained the laptop, for
pictures of children. See Turner, 304 Ga. at 361-362 (1) (b) (concluding that

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The record also shows that, moments later, in response to

Sergeant Asbell’s query concerning the contents of the thumb drives,

Winslow gave express permission to search the drives, which had

also been in the bag. After observing images of naked children stored

on one of the thumb drives, Sergeant Asbell seized Winslow’s

belongings, including his laptop, and arrested Winslow for sexual

exploitation of children.

The laptop was searched by the police roughly 14 months later.

There is no evidence that Winslow made any attempt to withdraw

or revoke his consent at any point during the roughly 14 months that

the State had custody of the laptop before it was searched or that he

ever indicated to Sergeant Asbell or anyone else that he had not

consented to a search of the laptop.

Thus, in light of Winslow’s consent for Sergeant Asbell to

search all of the contents of his bag, containing the laptop, for

“the record supports the trial court’s conclusion that [the defendant] did not
voluntarily consent to the search of her home” where she “merely acquiesced
to the authority of law enforcement” without more). But Winslow’s failure to
object to the search of the laptop after giving consent to search the bag and its
contents is a fact that the trial court was authorized to consider in its analysis.
11
pictures of children; Winslow’s express consent for Sergeant Asbell

to search the thumb drives contained within the bag; and the lack of

evidence that Winslow objected or did anything while Sergeant

Asbell attempted to search his laptop in his presence, it was not

error for the trial court to determine that a reasonable officer would

have understood Winslow’s statements and actions to constitute

consent to a search of his laptop. Cf. Florida v. Jimeno, 500 U. S.

248, 250-251 (111 SCt 1801, 114 LE2d 297) (1991) (holding that a

defendant’s consent to “search his car [for narcotics] . . . [without]

any explicit limitation on the scope of the search” extended to a

search of a paper bag on the floor of the car because a “reasonable

person may be expected to know that narcotics are generally carried

in some form of a container”); United States v. Plascencia, 886 F3d

1336, 1342-1343 (II) (11th Cir. 2018) (concluding that the district

court did not err in finding that the defendant’s consent for law

enforcement to conduct a “complete search of his boat and to [the]

seizure of its contents for any legitimate law enforcement purpose”

was not exceeded by law enforcement conducting a forensic analysis

12
of a GPS found on the boat (punctuation omitted)); Berry v. State,

318 Ga. App. 806, 808-809 (1) (734 SE2d 768) (2012) (concluding that

a search of hidden compartments within a car did not exceed consent

provided because the appellant was aware that the officer was

looking for “illegal or dangerous items within the truck” and

therefore the consent extended to “even hidden compartments in the

truck to find contraband”); Varriano v. State, 312 Ga. App. 266, 269

(718 SE2d 14) (2011) (concluding that the trial court did not clearly

err in denying the appellant’s motion to suppress because the

consent to search was not exceeded by the officer opening closed

packages and containers because the officer “inquired about the

presence of drugs” and obtained “consent to search the entire

vehicle”); McGaughey v. State, 222 Ga. App. 477, 479 (474 SE2d 676)

(1996) (concluding that a reasonable person could have understood

the scope of appellant’s consent to include a search of a medicine

bottle within her purse when, in response to an inquiry about her

presence in a “drug area,” appellant told an officer that he could

“search [her]” while holding up her purse).

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Even though the trial court’s determination that Winslow

consented to a search of his laptop is supported by the record, we

must also consider whether the trial court properly considered the

14-month delay between when Sergeant Asbell seized the laptop and

when the GBI forensically searched the laptop. The record does not

reveal an explicit trial court finding either way with respect to

whether the scope of the consent Winslow provided extended beyond

the initial encounter with Sergeant Asbell to include the following

14 months leading up to the actual search of the laptop by the GBI.

Rather, in finding that the search was valid on the basis of

Winslow’s consent, the trial court stated when issuing its oral ruling

at the hearing that Winslow’s “consent was never withdrawn.”

While, as noted above, we have stated that “[o]nce consent is

legally obtained, it continues until it is either revoked or

withdrawn,” see Woods, 258 Ga. at 542 (2), that statement should

not be understood to allow a potentially infinite duration whenever

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a person’s consent to a search is obtained.5 Instead, the duration of

the consent, as well as other factors like geographic and physical

limitations and how extensive the search may be, is limited to what

an objectively reasonable person would have understood the scope

of the consent to include, based on the “exchange between the officer

and the suspect. . . .” (Citation and punctuation omitted.) Turner,

304 Ga. at 360 (1) (a). Here, that inquiry requires the trial court to

determine whether a reasonable person would have understood from

the circumstances of the interaction with Sergeant Asbell that the

consent to search the laptop extended beyond that interaction, to

5 This quotation from Woods can be easily misused to stand for the
proposition that all consent to search is perpetual until revoked or withdrawn.
See Wilson v. State, 308 Ga. App. 383, 385 (2) (b) (708 SE2d 14) (2011)
(applying Woods to find that the appellant’s consent was still valid for a second
search of his car during the same traffic stop because “[a]bsent any evidence to
the contrary, we cannot assume that the consent was not applicable to the
second search made a short time later to seize what had already been admitted
to”). But, the rule that consent “continues until it is either revoked or
withdrawn” is only true when we remember that all consent to search remains
governed by an objective standard of reasonability. Thus, by way of example,
if an officer obtains consent to search a vehicle and completes the search, the
officer may not, upon encountering the vehicle in a parking lot the following
week, search it again on the theory that the consent obtained had not been
revoked or withdrawn. Rather, the ordinary consent to the search of a vehicle
would be understood to terminate upon the completion of the search.
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include a forensic search of the laptop by the GBI 14 months later.

In conducting its review of the scope of Winslow’s consent, the

trial court was not only authorized to consider the circumstances

recounted above surrounding Winslow’s consent but also that

Winslow could reasonably be found to be aware that his laptop was

already in the possession of law enforcement and could be in the

State’s continuous possession from that point on. Therefore, there

was evidence to support a finding that a reasonable person would

have understood Winslow’s consent to include a delay for the laptop

to be forensically searched. See Turner, 304 Ga. at 360 (1) (a).

Additionally, once the trial court determined that the scope of

Winslow’s consent encompassed a later search of the laptop, the trial

court was authorized to consider that there was no evidence that

Winslow ever attempted to withdraw or revoke this consent and find

that his consent was ongoing at the time the GBI searched the

laptop 14 months later. Woods, 258 Ga. at 542 (2).

Of course, we presume that trial judges “know the law and

apply it in making their decisions, absent some indication in the

16
record suggesting otherwise.” (Citation, punctuation and emphasis

omitted.) State v. Abbott, 309 Ga. 715, 719 (2) (848 SE2d 105) (2020).

Here, the trial court made its findings and denied Winslow’s motion

to suppress subject to Turner’s articulated standard that the “scope

of a suspect’s consent under the Fourth Amendment is that of

objective reasonableness. . . .” (Citation and punctuation omitted.)

304 Ga. at 360 (1) (a). Therefore, given the lack of any indication in

the record to the contrary, we presume that the trial court properly

applied that standard when reviewing the scope and duration of

Winslow’s consent here. Thus, we presume that the consent the trial

court found to have been obtained and not withdrawn included the

duration of the 14-month delay, and we review this factual finding

for clear error. See Holmes v. State, 311 Ga. 698, 705-706 (3) (859

SE2d 475) (2021) (noting that this Court “presume[d that] the trial

court knew and applied” a holding by the Supreme Court of the

United States because the case was decided before the trial court

made its ruling); Doleman, 304 Ga. at 743 (2) (stating that a trial

court’s factual findings on a motion to suppress are reviewed for

17
clear error); Hughes v. State, 296 Ga. 744, 747 (1) (770 SE2d 636)

(2015) (“[W]e generally must presume that the absence of a finding

of a fact that would tend to undermine the conclusion of the trial

court reflects a considered choice to reject the evidence offered to

prove that fact, especially where there were grounds upon which the

trial court properly could have assigned no weight to such evidence.”

(emphasis in original)).

Like us, the dissent recognizes our obligation to review the

record in a way that upholds trial court findings of fact where any

evidence was presented to support them. And we acknowledge that

the question of whether there are sufficient facts in the record to

support the trial court’s finding that Winslow consented to the

forensic search of his laptop is close. However, we believe that “the

highly deferential ‘any evidence’ standard” is met here. (Emphasis

supplied.) Morrell v. State, 313 Ga. 247, 251 (1) (869 SE2d 447)

(2022). The record contains evidence supporting a finding that

Winslow was aware that Sergeant Asbell was looking for images of

children; he offered a physical search of his bag containing his laptop

18
for images of children; he witnessed Sergeant Asbell take possession

of the bag and all of its contents, including his laptop; he witnessed

Sergeant Asbell’s failed attempt to gain access to the data on his

laptop; and he expressly consented to Sergeant Asbell searching the

flash drives that were also in his bag after it was unclear whether

he would regain possession of his items within the bag, including the

laptop. All of these facts together create a far more extensive picture

of Winslow’s consent than the dissent’s focus on Winslow responding

“sure” to Sergeant Asbell’s request to search his bag. These facts, in

our view, satisfy the requirement that “any evidence” be present to

support a finding that Winslow consented to a thorough search of

the digital media the government had taken into its possession.

Further, Winslow witnessed Sergeant Asbell locate images of

children on one of the flash drives that he had represented were

empty, and he knew that his laptop remained in the possession of

law enforcement. While these facts, which we also consider

favorably to the trial court’s disposition, do not inform the scope of

the consent Winslow provided, they are relevant to the trial court’s

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consideration of whether that consent was withdrawn.

Additionally, while the dissent suggests the need for Winslow’s

consent to have been found more specifically for a GBI forensic

search of the laptop 14 months after its seizure, that demands too

much of consent. The standard is what a reasonable person would

have believed the consent to encompass. Whether it was the GBI or

an IT professional in the police department, Winslow could

reasonably be understood to have known that Sergeant Asbell would

seek help in completing his failed search of the laptop at some point

after his laptop was seized. And whether the search was a forensic

search or not, this record supports a finding that Winslow knew that

Sergeant Asbell was going to continue his search for images. And

the trial court was authorized to find that a reasonable person would

understand that the subsequent search may include a forensic

search. Additionally, whether the search took place the day, week,

month, or year following the items being seized was of no meaningful

consequence to Winslow, who did not have possession of the items

on any of those days. A reasonable person could be found to have

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understood that the items would be subsequently searched and that

there may be a delay before law enforcement is able to do so. The

fact that this evidence does not seem like enough to convince the

dissent that the scope of Winslow’s consent extended to the search

of his laptop is a separate question from whether there is any

evidence to support such a finding.

Because the implicit finding that Winslow consented to a

subsequent forensic search of his laptop after it was seized is

supported by evidence in the record, we cannot say that the trial

court erred in denying Winslow’s motion to suppress. And because

we conclude that the trial court did not err in denying the motion to

suppress on the basis of Winslow’s consent to the search in question,

we need not consider the necessity or propriety of a valid search

warrant. See Brooks, 285 Ga. at 425. Accordingly, there is no need

to review Winslow’s remaining arguments on this enumeration.

3. Winslow next argues that the statutory sentencing scheme

for possession of child pornography under OCGA § 16-12-100 (f) (1)

21
is facially unconstitutional.6 Winslow argues that the mandatory

minimum and the maximum sentence provided for possession of

child pornography under OCGA § 16-12-100 (f) (1) violate the

prohibition against cruel and unusual punishment in both the

Eighth Amendment to the United States Constitution and Article I,

Section I, Paragraph XVII of the Georgia Constitution (“Paragraph

XVII”). We disagree.

We have recognized that both the Eighth Amendment and

Paragraph XVII “prohibit inflicting cruel and unusual

punishments[,]” which encompasses “sentences that are grossly

disproportionate to the crime committed.” (Citations and

6 Winslow also challenges the constitutionality of OCGA § 16-12-100 (f)

(1) as applied to him based on his total sentence of 35 years, with the first 20
years to be served in confinement and the remaining 15 years to be served on
probation. See Bello v. State, 300 Ga. 682, 686 (1) (797 SE2d 882) (2017) (“An
as-applied challenge addresses whether a statute is unconstitutional on the
facts of a particular case or to a particular party.” (citation and punctuation
omitted)). To the extent that Winslow also challenges the constitutionality of
his particular sentence (35 years, with the first 20 years to be served in
confinement and the remaining 15 years to be served on probation), that
challenge is moot because we are vacating that sentence on merger grounds.
See Stewart v. State, 311 Ga. 471, 478 (3) (858 SE2d 456) (2021) (noting that
the appellant’s remaining challenges to his sentence were moot because this
Court vacated his sentence as to the relevant count).
22
punctuation omitted.) Conley v. Pate, 305 Ga. 333, 335-336 (3) (825

SE2d 135) (2019).

[A] court engages in a two-step inquiry to determine
whether [a] sentence is grossly disproportionate. First, a
court compares the gravity of the offense and the severity
of the sentence. If this threshold comparison leads to an
inference of gross disproportionality, the court proceeds to
the next step and compares the defendant’s sentence with
the sentences received by other offenders in the same
jurisdiction and with the sentences imposed for the same
crime in other jurisdictions.

(Citations and punctuation omitted.) Id. at 336 (3). Additionally,

when reviewing a claim of cruel and unusual punishment under the

Eighth Amendment, “courts must defer to the legislature in

[determinations of sentencing parameters] unless a sentence is so

overly severe or excessive in proportion to the offense as to shock the

conscience.” (Citation omitted.) Gordon v. State, 257 Ga. 439, 440 (2)

(360 SE2d 253) (1987).

Winslow complains that the punishment for possession of child

pornography imposed under OCGA § 16-12-100 (f) (1) is grossly

disproportionate because the statute does not make distinctions for

sentencing purposes between possession offenses and those

23
involving the sale, distribution, or manufacturing of child

pornography. He argues that crimes involving possession of child

pornography should carry a lighter sentence because they are non-

violent crimes and because other criminal statutes, such as OCGA §

16-13-30, provide for lesser sentencing parameters for possession

crimes than crimes involving distribution and manufacturing.

However, even though there is no such distinction in OCGA §

16-12-100 (f) (1), the sentencing parameters are not grossly

disproportionate to the crime of possession of child pornography, an

offense we have long recognized a strong state interest in

discouraging. See Scott v. State, 299 Ga. 568, 574 (3) (788 SE2d 468)

(2016) (“It is evident beyond the need for elaboration that [the]

government has a compelling interest in protecting the physical and

psychological well-being of children.” (citation and punctuation

omitted)). And Winslow has done nothing to demonstrate that the

General Assembly’s choice to protect the State’s significant interest

in combatting the production, distribution, and possession of such

materials with the range of sentences that can be imposed under

24
OCGA § 16-12-100 (f) (1) or its decision not to distinguish between

possession, production, and distribution offenses in any way “shocks

the conscience.”7 See Aman v. State, 261 Ga. 669, 670 (1) (b) (409

SE2d 645) (1991) (“[A] State’s interest in safeguarding the physical

and psychological well-being of a minor is compelling. The

legislative judgment, as well as the judgment found in relevant

literature, is that the use of children as subjects of pornographic

materials is harmful to the psychological, emotional, and mental

health of the child.” (punctuation omitted) (quoting Osborne v. Ohio,

7 Although this Court has previously relied on the “evolving standard of

decency” standard under the Eighth Amendment in reviewing a claim of cruel
and unusual punishment under Paragraph XVII, see Fleming v. Zant, 259 Ga.
687, 689 (3) (386 SE2d 339) (1989), we decline to decide today whether
Paragraph XVII is properly analyzed under the same lens as the Eighth
Amendment. See generally Conley, 305 Ga. at 339-341 (Peterson, J.,
concurring). Winslow has not argued that Paragraph XVII would afford him
more protection than the Eighth Amendment nor that Paragraph XVII would
apply an easier standard for him to meet. And we see no basis for such an
argument. Thus, for purposes of our analysis, we presume that at most
Paragraph XVII’s protections are co-extensive with those afforded by the
Eighth Amendment. Therefore, because Winslow cannot show that OCGA §
16-12-100 is unconstitutional under the Eighth Amendment, it follows that he
could not make a showing of unconstitutionality under Paragraph XVII. We
therefore decline to take this opportunity to consider the precise standard of
review for determining whether a sentence constitutes cruel and unusual
punishment under Paragraph XVII.

25
495 U. S. 103, 108-109 (I) (110 SCt 1691, 109 LE2d 98) (1990))). See

also Gordon, 257 Ga. at 440 (2); Johnson v. State, 276 Ga. 57, 62 (5)

(573 SE2d 362) (2002). Therefore, given “the requisite deference to

the legislative branch’s authority to impose punishment based on

the mores of society at the time of the crime,” we hold that the

sentencing parameters in OCGA § 16-12-100 (f) (1) are not grossly

disproportionate.8 Widner v. State, 280 Ga. 675, 676 (1) (631 SE2d

675) (2006).

4. Finally, Winslow argues that the trial court erred in failing

to merge Counts 1 and 2, which were based on Winslow’s

simultaneous possession of two videos found on his laptop, for

sentencing. The State concedes that this was error, and we agree.

Winslow was found guilty of four counts of sexual exploitation

of children. The trial court merged Count 3 with Count 1, which were

8 Although Winslow complains that Georgia is one of only eight states

imposing a similar sentencing scheme for the crime of possession of child
pornography, because Winslow failed to establish the threshold comparison
between the gravity of the offense and the severity of the sentence, there is no
need to compare the sentencing parameters of OCGA § 16-12-100 (f) (1) with
sentences imposed for the same crime in other jurisdictions. See Conley, 305
Ga. at 335-336 (3).
26
both based on his possession of the first video but on different dates.

The trial court also merged Count 4 with Count 2, which were

similarly both based on his possession of the second video on

different dates. However, the trial court declined to merge Count 1

and Count 2, and sentenced Winslow to 15 years in confinement on

Count 1 and five years in confinement with 15 years of probation on

Count 2 to run consecutively to Count 1. This was error.

In Edvalson, this Court held that OCGA § 16-12-100 (b) (5)9

only allows for “one prosecution and conviction for the simultaneous

possession of multiple items of ‘visual media’” and clarified that

possession can be simultaneous “regardless of the number of images

9 We note that in July 2022, after Edvalson was decided, the General

Assembly amended OCGA § 16-12-100. Pursuant to that amendment, OCGA §
16-12-100 (b) (5) now provides that “[i]t is unlawful for any person knowingly
to create, reproduce, publish, promote, sell, distribute, give, exhibit, or possess
with intent to sell or distribute a visual medium which depicts a minor or a
portion of a minor’s body engaged in any sexually explicit conduct.”
Additionally, the General Assembly enacted OCGA § 16-12-100 (b.1), which
provides that “[f]or any violation of paragraph (5) . . . of subsection (b) of this
Code section involving multiple visual mediums, mediums, or materials, each
visual medium, medium, or material connected to such violation shall
constitute a separate offense.” Because the conduct at issue in this case
occurred prior to the effective date of these changes to the statute, the version
of OCGA § 16-12-100 in force at the time Edvalson was decided applies.
27
depicted therein.” 310 Ga. at 8, 10. See also OCGA § 16-12-100 (a)

(5) (defining “visual medium” as “any film, photograph, negative,

slide, magazine, or other visual medium”). Because both Count 1 and

Count 2 were based on Winslow’s simultaneous possession of the two

videos, the trial court erred in failing to merge these counts for

sentencing. Therefore, we vacate Winslow’s sentence and remand

this case for resentencing consistent with Edvalson.

Judgment affirmed in part and vacated in part, and case
remanded for resentencing. All the Justices concur, except Boggs, C.
J., Peterson, P. J., and Warren and Pinson, JJ., who dissent.

28
PETERSON, Presiding Justice, dissenting.

Imagine that you’re talking with a police officer at a Walmart.

The officer asks whether you have inappropriate images on your

laptop. You say no. He asks, “Can I check?” And you say, “Sure.” I

am skeptical that your “sure” can reasonably be understood as

consent to a GBI forensic search of the laptop 14 months later. The

majority presumes that the trial court’s oral ruling (which said

nothing of the sort) must have implicitly made such a finding. If it

had done so explicitly, on this record, I would probably determine

that was wrong. But because I think that the trial court should at

least have the chance to articulate any such finding for itself before

I conclude it was wrong, I would vacate and remand for the trial

court to determine for itself whether it believes such a finding is

appropriate. I respectfully dissent.

As the majority correctly explains, the law is that consent

continues until withdrawn or until the reasonably understood

duration of that consent expires. “A suspect may of course delimit as

he chooses the scope of the search to which he consents.” Florida v.

29
Jimeno, 500 U.S. 248, 252 (111 SCt 1801, 114 LE2d 297) (1991). This

includes limiting the duration of the consent to search. See 2 Wayne

R. LaFave et al., Criminal Procedure § 3.10 (f) (4th ed. Nov. 2021

update) (“Even if it is determined that the consent of the defendant

or another authorized person was ‘voluntary’ within the meaning of

[controlling United States Supreme Court case law], it does not

inevitably follow that evidence found in the ensuing search will be

admissible. This is because it is also necessary to take account of any

express or implied limitations on the consent which mark the

permissible scope of that search in terms of its time, duration, area

or intensity.”). “Even when an officer has consent to conduct a

search, he violates the Fourth Amendment if he goes beyond the

scope of consent.” Fuqua v. Turner, 996 F3d 1140, 1151 (11th Cir.

2021) (citing Jimeno, 500 U.S. at 251). And “[t]he standard for

measuring the scope of a suspect’s consent under the Fourth

Amendment is that of ‘objective’ reasonableness — what would the

typical reasonable person have understood by the exchange between

the officer and the suspect?” Jimeno, 500 U.S. at 251.

30
In affirming the denial of Winslow’s motion to suppress, the

majority relies heavily on the presumption that trial judges have

understood and followed the law, absent the record indicating

otherwise. See Edwards v. State, 301 Ga. 822, 826 (2) (804 SE2d 404)

(2017). To have properly applied the law in this case, the trial court’s

finding that consent permitted a GBI search 14 months later would

have required two supporting findings: (1) that the duration of

Winslow’s consent at the Walmart for Sergeant Asbell to search his

laptop was reasonably understood to be for at least 14 months, and

(2) the scope of that consent extended beyond consent to search

Winslow’s laptop in the Walmart parking lot — up to and including

that it would have been objectively reasonable to conclude that the

scope of that consent extended to a forensic analysis of the computer

by the GBI 14 months after Sergeant Asbell seized it. The majority

acknowledges that the record does not reveal any trial court finding

on either of these points, so any such findings would be merely

creatures of our presumption.

I am skeptical that the record would permit us to affirm any

31
such findings. Sergeant Asbell testified that he asked Winslow “can

I check” whether Winslow had other pictures of children on his

laptop and thumb drives; Winslow “was, like, sure.” Later in his

testimony, Sergeant Asbell also recounted the exchange as asking

Winslow if he had anything “on the drives” or had any “pictures of

kids that you shouldn’t have,” and that Winslow consented by saying

“you can look” or “I [Sergeant Asbell] could check.” This testimony

seems to me strong evidence that Winslow consented to Sergeant

Asbell searching the electronics while at the Walmart; it strikes me

as wholly inadequate to support a finding that his consent was

reasonably understood as continuing for 14 months and extending

to a forensic search by the GBI — by a different person, at a different

time and place, using different means. See LaFave, supra (“As a

general rule, it would seem that a consent to search may be said to

have been given on the understanding that the search will be

conducted forthwith and that only a single search will be made.”);

United States v. Casellas-Toro, 807 F3d 380, 391 (1st Cir. 2015)

(observing that three-week delay in search of car in FBI custody

32
“approaches the outer limit of a reasonable time to complete a

consent search”); State v. Peterson, 273 Ga. 657, 659 (1) (543 SE2d

692) (2001) (“Additional investigators or officials may enter a

citizen’s property after one official has already intruded legally. . . .

Of course, the later officials must confine their intrusion to the scope

of the original invasion unless a warrant or one of the exceptions to

the warrant requirement justifies a more thorough or wide ranging

search.” (quoting United States v. Brand, 556 F2d 1312, 1317 & n.9

(5th Cir. 1977) (punctuation omitted)).

The majority also focuses on Winslow’s failure to withdraw his

consent to search upon being arrested, suggesting that silence in the

face of law enforcement taking his laptop post-arrest was essentially

consent. This strikes me not as consent, but acquiescence. Yet

“[w]hen a prosecutor seeks to rely upon consent to justify the

lawfulness of a search, he has the burden of proving that the consent

was, in fact, freely and voluntarily given. This burden cannot be

discharged by showing no more than acquiescence to a claim of

lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 548-549

33
(88 SCt 1788, 20 LE2d 797) (1968).10 And the majority’s stated

assumption that Winslow consented to Sergeant Asbell’s search of

the flash drives only “after it was unclear whether he would regain

possession of his items within the bag, including the laptop” is not

reasonably inferred from this record; whether Winslow may have

guessed that he would not get his laptop back that day based upon

his own subjective knowledge of the images contained on the flash

drives is not germane to the objective question of what “the typical

reasonable person [would] have understood by the exchange

between” him and Sergeant Asbell. Jimeno, 500 U.S. at 251.

10 I note that Bumper also holds that when a law enforcement officer

claims authority to search a home under a warrant, the State cannot later
justify the search based on acquiescence in the face of that warrant, because
the officer’s claim of authority communicates to the occupant that he has no
right to resist, a sort of coercion with which there can be no consent. See 391
U.S. at 548-550. “The result can be no different when it turns out that the State
does not even attempt to rely upon the validity of the warrant, or fails to show
that there was, in fact, any warrant at all,” the Court added. Id. at 549-550.
This raises an additional question as to whether the GBI’s search of Winslow’s
laptop can be justified by Winslow’s failure to withdraw any consent prior to
that search, which purportedly took place pursuant to a warrant. Once the
State had secured a warrant, it had a claim of lawful authority to search the
laptop — consent or no. So as a matter of logic, it arguably would have made
no sense for Winslow to purport to withdraw any consent that extended to that
point, since he could not have refused a search in the face of the warrant.
34
But notwithstanding my misgivings, appellate courts don’t

make factual findings ourselves in the first instance. I would not

conclude the trial court was wrong on the basis that a hypothetical

finding that Winslow had given consent continuing for 14 months

and extending to a forensic search by the GBI is unsupported by the

record. Presuming a finding that we ourselves articulate in

sufficient detail to assess and then determining that it is

unsupported by the record is, for me, too close to making factual

findings ourselves, and may wind up being unfair to the trial court.

After all, with the benefit of reviewing more than merely the cold

record before us, the trial court might have some reason for such a

finding that presently escapes my imagination.11 Before concluding

that no such supportable finding is possible, I would remand for the

trial court to make explicit findings that we could then review.

I’ll also point out that the only reason we have to resolve this

case on consent grounds is that the State may have fouled up the

11 Of course, the mere possibility that such a reason might exist is far too

speculative a basis on which to affirm such a hypothetical finding.
35
eventual search warrant for the laptop, and the search performed

thereunder, making it difficult to affirm the trial court’s alternative

holding that the search performed was done reasonably and under

a valid warrant. I share the majority’s prudent desire to avoid those

hard and novel constitutional questions if not necessary to decide

them (which is yet another reason I would vacate). But I would not

do so by finding consent where we have little reason to believe that

the trial court properly found it. I respectfully dissent from the

judgment of the Court. (I do not disagree with anything said in

Divisions 3 and 4 of the majority opinion, but I cannot join in the

judgment of Division 4 because I would vacate and remand the case

as to the motion to suppress, rather than vacating Winslow’s

sentence and remanding for resentencing at this time. To the extent

that Division 3 can be said to have a judgment, I join it.)

I am authorized to state that Chief Justice Boggs, Justice

Warren and Justice Pinson join in this dissent.

36
Decided November 2, 2022 — Reconsideration denied November

17, 2022.

OCGA § 16-12-100; constitutional question. Monroe Superior

Court. Before Judge Wilson.

Allen R. Knox, for appellant.

Jonathan L. Adams, District Attorney, Dorothy V. Hull, Leslie

A. Tilson, Carolee R. Jordan, Assistant District Attorneys;

Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,

Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney

General, for appellee.

SUPREME COURT OF GEORGIA

November 2, 2022

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

Upon consideration, the Court has revised the deadline for
motions for reconsideration in this matter. It is ordered that a
motion for reconsideration, if any, including motions submitted via
the Court’s electronic filing system, must be received in the
Clerk’s Office by 2 p.m. on Wednesday, November 9, 2022.

SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta

I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.

, Clerk
In the Supreme Court of Georgia

Decided: November 2, 2022