¶1 SUPREME COURT OF GEORGIA
¶2 November 2, 2022
¶3 The Honorable Supreme Court met pursuant to adjournment.
¶4The following order was passed:
¶5 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.
¶6 SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta
¶7 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.
¶8 , Clerk In the Supreme Court of Georgia
¶9 Decided: November 2, 2022
¶10 S22A0498. WINSLOW v. THE STATE.
¶11 BETHEL, Justice.
¶12 William Sanford Winslow was convicted on four counts of
¶13sexual exploitation of children in connection with his possession of
¶14two videos depicting children engaged in sexually explicit conduct.
¶15The videos were found on his laptop computer by law enforcement.
¶16On appeal, Winslow raises three enumerations of error: (1) the trial
¶17court erred by denying his motion to suppress evidence obtained
¶18from a search of his laptop; (2) facial and as-applied challenges to
¶19the sentencing scheme of OCGA § 16-12-100 (f) (1); and (3) the trial
¶20court erred by failing to merge all counts of the indictment together
¶21for sentencing under Edvalson v. State, 310 Ga. 7 (849 SE2d 204)
¶22 1 (2020).1
¶23 For the reasons set forth below, we affirm Winslow’s
¶24convictions. However, because the trial court should have sentenced
¶25Winslow on only one count and merged the remaining counts for
¶26sentencing, see Edvalson, 310 Ga. at 8, 10, we vacate the sentences
¶27imposed by the trial court and remand for resentencing. And,
¶28because we vacate these sentences, we do not reach Winslow’s as-
¶29applied challenge to OCGA § 16-12-110 (f) (1).
¶30 1 An officer with the Forsyth Police Department confiscated a laptop containing explicit videos from Winslow on November 4, 2018. On May 11, 2021, Winslow was indicted by a Monroe County grand jury for four counts of 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 15 years in confinement for Count 1 and 20 years (five years served in confinement with 15 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. 2 1. Viewed in the light most favorable to the verdicts, the
¶31evidence presented at trial showed the following. On November 4,
¶322018, Sergeant David Asbell with the Forsyth Police Department
¶33responded to a call from a Walmart in Monroe County because a
¶34man, later identified as Winslow, was printing photographs that
¶35were making a store clerk uncomfortable. Winslow was attempting
¶36to purchase five printed photos from the self-serve printing kiosk,
¶37and each photo depicted different children, and one computerized
¶38depiction of a child, presented in a manner that is fairly described
¶39as sexualized in nature. The employee also observed Winslow
¶40attempt to hide the photos from view when another Walmart patron
¶41asked if the children in the photos were Winslow’s.
¶42 After arriving at the store, Sergeant Asbell approached
¶43Winslow, whom the Sergeant already knew, and asked to speak with
¶44him outside the store. Winslow told Sergeant Asbell that the photos
¶45were of members of Winslow’s family, but Sergeant Asbell knew
¶46Winslow’s family and testified that he knew that these children were
¶47not members of Winslow’s family. Sergeant Asbell then asked
¶48 3 Winslow if he had “any other photos that would be images that he
¶49shouldn’t have,” and more specifically, whether he had any other
¶50pictures of children. Winslow responded that he did not, and he told
¶51Sergeant Asbell that he could check. Sergeant Asbell asked if he
¶52could open Winslow’s bag to check. Winslow said “yes” but that there
¶53was “nothing there.”
¶54 When Sergeant Asbell looked in the bag, he noticed a laptop
¶55computer. While present with Winslow, Sergeant Asbell attempted
¶56to turn the laptop on but was unable to access any information on
¶57the computer because it had trouble starting. The record before us
¶58does not indicate whether Sergeant Asbell asked Winslow whether
¶59he could check the contents of the laptop. Likewise, the record is
¶60silent as to whether Winslow did or said anything while Asbell was
¶61attempting to access the information on the laptop.
¶62 Continuing his search of the contents of Winslow’s bag,
¶63Sergeant Asbell found seven thumb drives. Sergeant Asbell asked
¶64Winslow if there was anything on the thumb drives, and Winslow
¶65responded that the thumb drives were empty but that Sergeant
¶66 4 Asbell could check them. Sergeant Asbell then checked three of the
¶67thumb drives by plugging them into his own laptop. The first drive
¶68only contained an installer program for Microsoft windows, and the
¶69second thumb drive was blank. The third thumb drive, however,
¶70contained a folder labeled “Billy’s porn” with two media files in it.
¶71The first file contained photographs of Winslow. Sergeant Asbell
¶72described the second file as containing multiple images of naked
¶73children. After viewing these photos, Sergeant Asbell ended his
¶74search of the thumb drives and arrested Winslow for sexual
¶75exploitation of children.
¶76 The GBI searched Winslow’s laptop roughly 14 months later
¶77following the issuance of a warrant. The GBI attributed the delay in
¶78searching the laptop to a backlog of other tasks. During that search,
¶79an agent found two videos containing what the agent considered to
¶80be child pornography. Digital records showed that both videos were
¶81downloaded to Winslow’s laptop on September 15, 2018 at 1:15 a.m.
¶82 Winslow moved to suppress all of the electronic evidence,
¶83arguing that the search was conducted without his consent and with
¶84 5 an invalid warrant. More specifically, he argued that his consent did
¶85not extend to a full forensic search of the laptop and had long
¶86expired. Additionally, Winslow argued that the warrant 2 had
¶87expired before the GBI search of the laptop commenced because of a
¶88ten-day execution requirement both within the warrant itself and
¶89pursuant to OCGA § 17-5-25; that the warrant was void because it
¶90was obtained in a different judicial district than where the evidence
¶91was housed; and the affidavit supporting the search warrant lacked
¶92probable cause.
¶93 Following a hearing, the trial court denied the motion to
¶94suppress. The court determined that Winslow consented to the
¶95search of his laptop, that his consent was never withdrawn, that the
¶96search was valid, and that the search was conducted in a reasonable
¶97amount of time.
¶98 2. Winslow challenges the trial court’s denial of his motion to
¶99 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 cellphone 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. 6 suppress, arguing that he did not consent to the search of his laptop
¶100and that the State did not have a valid search warrant for the laptop
¶101because the warrant had expired, it was issued in a different county
¶102than where the evidence was located, and the supporting affidavit
¶103lacked probable cause. For the reasons explained below, we conclude
¶104that the court did not err in finding that Winslow consented to the
¶105search.
¶106 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.
¶107(Citations and punctuation omitted.) Brooks v. State, 285 Ga. 424,
¶108425-426 (677 SE2d 68) (2009). “[T]he standard for measuring the
¶109scope of a suspect’s consent under the Fourth Amendment is that of
¶110objective reasonableness – what would a typical reasonable person
¶111have understood by the exchange between the officer and the
¶112suspect?” (Punctuation omitted.) State v. Turner, 304 Ga. 356, 360
¶113 7 (1) (a) (818 SE2d 589) (2018). Further, constrained by that
¶114limitation, “[o]nce consent is legally obtained, it continues until it is
¶115either revoked or withdrawn.” Woods v. State, 258 Ga. 540, 542 (2)
¶116(371 SE2d 865) (1988).
¶117 This Court will not disturb a trial court’s findings of fact in
¶118ruling on a motion to suppress unless they are clearly erroneous.3
¶119See Doleman v. State, 304 Ga. 740, 743 (2) (822 SE2d 223) (2018).
¶120When reviewing the trial court’s findings of fact, “this Court
¶121 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 (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. MartelMartines, 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 “reviewing 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”), 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. 8 construes the evidence most favorably to upholding the trial court’s
¶122findings and judgment and will not disturb the trial court’s findings
¶123of fact if there is any evidence to support them.” Id. “[T]he trial
¶124court’s application of the law to undisputed facts is subject to de novo
¶125review. . . .” (Citation omitted.) State v. Palmer, 285 Ga. 75, 78 (673
¶126SE2d 237) (2009).
¶127 Here, the trial court found that Winslow consented to the
¶128search of his bag and all of its contents, including digital information
¶129contained on the laptop, and that this consent was never withdrawn.
¶130The record contains evidence supporting those findings. Specifically,
¶131the evidence shows that Winslow knew that Sergeant Asbell was
¶132searching for photographs of children and Winslow gave him
¶133permission to check his bag, which contained his laptop. When
¶134searching the bag in the presence of Winslow, Sergeant Asbell
¶135attempted to search the digital contents of Winslow’s laptop, and
¶136there is nothing in the record that indicates that Winslow ever
¶137complained or told Sergeant Asbell that he could not search the
¶138laptop itself. See United States v. Harris, 928 F.2d 1113, 1117-1118
¶139 9 (IV) (11th Cir. 1991) (noting that “importantly, [the defendant] was
¶140physically present while [the officer] searched the car, and had
¶141ample opportunity to limit the scope of the search, or request that it
¶142be discontinued” while concluding that the district court reasonably
¶143found that the defendant’s consent extended to a search of luggage
¶144in the trunk of a car); Lance v. State, 275 Ga. 11, 20 (19) (560 SE2d
¶145663) (2002) (rejecting a claim that a search was unlawful because a
¶146signed form granting consent to search was too generalized and
¶147noting that the appellant “attended the actual search and never
¶148withdrew his consent”), disapproved on other grounds by Willis v.
¶149State, 304 Ga. 686, 706 (11) (a) n.3 (820 SE2d 640) (2018); Bohannon
¶150v. State, 251 Ga. App. 771, 773 (2) (555 SE2d 112) (2001) (concluding
¶151that no error occurred where the trial court concluded that the
¶152defendant’s consent to search a garage encompassed a locked toolbox
¶153located inside the garage, noting that the appellant was “present
¶154and watching . . . [but] did not register any objection to the officers’
¶155 10 search”).4
¶156 The record also shows that, moments later, in response to
¶157Sergeant Asbell’s query concerning the contents of the thumb drives,
¶158Winslow gave express permission to search the drives, which had
¶159also been in the bag. After observing images of naked children stored
¶160on one of the thumb drives, Sergeant Asbell seized Winslow’s
¶161belongings, including his laptop, and arrested Winslow for sexual
¶162exploitation of children.
¶163 The laptop was searched by the police roughly 14 months later.
¶164There is no evidence that Winslow made any attempt to withdraw
¶165or revoke his consent at any point during the roughly 14 months that
¶166the State had custody of the laptop before it was searched or that he
¶167ever indicated to Sergeant Asbell or anyone else that he had not
¶168 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 “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 consented to a search of the laptop.
¶169 Thus, in light of Winslow’s consent for Sergeant Asbell to
¶170search all of the contents of his bag, containing the laptop, for
¶171pictures of children; Winslow’s express consent for Sergeant Asbell
¶172to search the thumb drives contained within the bag; and the lack of
¶173evidence that Winslow objected or did anything while Sergeant
¶174Asbell attempted to search his laptop in his presence, it was not
¶175error for the trial court to determine that a reasonable officer would
¶176have understood Winslow’s statements and actions to constitute
¶177consent to a search of his laptop. Cf. Florida v. Jimeno, 500 U. S.
¶178248, 250-251 (111 SCt 1801, 114 LE2d 297) (1991) (holding that a
¶179defendant’s consent to “search his car [for narcotics] . . . [without]
¶180any explicit limitation on the scope of the search” extended to a
¶181search of a paper bag on the floor of the car because a “reasonable
¶182person may be expected to know that narcotics are generally carried
¶183in some form of a container”); United States v. Plascencia, 886 F3d
¶1841336, 1342-1343 (11th Cir. 2018) (concluding that the district court
¶185did not err in finding that the defendant’s consent for law
¶186 12 enforcement to conduct a “complete search of his boat and to [the]
¶187seizure of its contents for any legitimate law enforcement purpose”
¶188was not exceeded by law enforcement conducting a forensic analysis
¶189of a GPS found on the boat (punctuation omitted)); Berry v. State,
¶190318 Ga. App. 806, 808-809 (1) (734 SE2d 768) (2012) (concluding that
¶191a search of hidden compartments within a car did not exceed consent
¶192provided because the appellant was aware that the officer was
¶193looking for “illegal or dangerous items within the truck” and
¶194therefore the consent extended to “even hidden compartments in the
¶195truck to find contraband”); Varriano v. State, 312 Ga. App. 266, 269
¶196(718 SE2d 14) (2011) (concluding that the trial court did not clearly
¶197err in denying the appellant’s motion to suppress because the
¶198consent to search was not exceeded by the officer opening closed
¶199packages and containers because the officer “inquired about the
¶200presence of drugs” and obtained “consent to search the entire
¶201vehicle”); McGaughey v. State, 222 Ga. App. 477, 479 (474 SE2d 676)
¶202(1996) (concluding that a reasonable person could have understood
¶203the scope of appellant’s consent to include a search of a medicine
¶204 13 bottle within her purse when, in response to an inquiry about her
¶205presence in a “drug area,” appellant told an officer that he could
¶206“search [her]” while holding up her purse).
¶207 Even though the trial court’s determination that Winslow
¶208consented to a search of his laptop is supported by the record, we
¶209must also consider whether the trial court properly considered the
¶21014-month delay between when Sergeant Asbell seized the laptop and
¶211when the GBI forensically searched the laptop. The record does not
¶212reveal an explicit trial court finding either way with respect to
¶213whether the scope of the consent Winslow provided extended beyond
¶214the initial encounter with Sergeant Asbell to include the following
¶21514 months leading up to the actual search of the laptop by the GBI.
¶216Rather, in finding that the search was valid on the basis of
¶217Winslow’s consent, the trial court stated when issuing its oral ruling
¶218at the hearing that Winslow’s “consent was never withdrawn.”
¶219 While, as noted above, we have stated that “[o]nce consent is
¶220legally obtained, it continues until it is either revoked or
¶221withdrawn,” see Woods, 258 Ga. at 542 (2), that statement should
¶222 14 not be understood to allow a potentially infinite duration whenever
¶223a person’s consent to a search is obtained. 5 Instead, the duration of
¶224the consent, as well as other factors like geographic and physical
¶225limitations and how extensive the search may be, is limited to what
¶226an objectively reasonable person would have understood the scope
¶227of the consent to include, based on the “exchange between the officer
¶228and the suspect. . . .” Turner, 304 Ga. at 360 (1) (a). Here, that
¶229inquiry requires the trial court to determine whether a reasonable
¶230person would have understood from the circumstances of the
¶231interaction with Sergeant Asbell that the consent to search the
¶232 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. 15 laptop extended beyond that interaction, to include a forensic search
¶233of the laptop by the GBI 14 months later.
¶234 In conducting its review of the scope of Winslow’s consent, the
¶235trial court was not only authorized to consider the circumstances
¶236recounted above surrounding Winslow’s consent but also that
¶237Winslow could reasonably be found to be aware that his laptop was
¶238already in the possession of law enforcement and could be in the
¶239State’s continuous possession from that point on. Therefore, there
¶240was evidence to support a finding that a reasonable person would
¶241have understood Winslow’s consent to include a delay for the laptop
¶242to be forensically searched. See Turner, 304 Ga. at 360 (1) (a).
¶243Additionally, once the trial court determined that the scope of
¶244Winslow’s consent encompassed a later search of the laptop, the trial
¶245court was authorized to consider that there was no evidence that
¶246Winslow ever attempted to withdraw or revoke this consent and find
¶247that his consent was ongoing at the time the GBI searched the
¶248laptop 14 months later. Woods, 258 Ga. at 542 (2).
¶249 Of course, we presume that trial judges “know the law and
¶250 16 apply it in making their decisions, absent some indication in the
¶251record suggesting otherwise.” (Citation and emphasis omitted.)
¶252State v. Abbott, 309 Ga. 715, 719 (2) (848 SE2d 105) (2020). Here,
¶253the trial court made its findings and denied Winslow’s motion to
¶254suppress subject to Turner’s articulated standard that the “scope of
¶255a suspect’s consent under the Fourth Amendment is that of objective
¶256reasonableness. . . .” 304 Ga. at 360 (1) (a). Therefore, given the lack
¶257of any indication in the record to the contrary, we presume that the
¶258trial court properly applied that standard when reviewing the scope
¶259and duration of Winslow’s consent here. Thus, we presume that the
¶260consent the trial court found to have been obtained and not
¶261withdrawn included the duration of the 14-month delay, and we
¶262review this factual finding for clear error. See Holmes v. State, 311
¶263Ga. 698, 705-706 (3) (859 SE2d 475) (2021) (noting that this Court
¶264“presume[d that] the trial court knew and applied” a holding by the
¶265Supreme Court of the United States because the case was decided
¶266before the trial court made its ruling); Doleman, 304 Ga. at 743 (2)
¶267(stating that a trial court’s factual findings on a motion to suppress
¶268 17 are reviewed for clear error); Hughes v. State, 296 Ga. 744, 747 (1)
¶269(770 SE2d 636) (2015) (“[W]e generally must presume that the
¶270absence of a finding of a fact that would tend to undermine the
¶271conclusion of the trial court reflects a considered choice to reject the
¶272evidence offered to prove that fact, especially where there were
¶273grounds upon which the trial court properly could have assigned no
¶274weight to such evidence.”).
¶275 Like us, the dissent recognizes our obligation to review the
¶276record in a way that upholds trial court findings of fact where any
¶277evidence was presented to support them. And we acknowledge that
¶278the question of whether there are sufficient facts in the record to
¶279support the trial court’s finding that Winslow consented to the
¶280forensic search of his laptop is close. However, we believe that the
¶281“the highly deferential ‘any evidence’ standard” is met here.
¶282(Emphasis supplied.) Morrell v. State, 313 Ga. 247, 251 (1) (869
¶283SE2d 447) (2022). The record contains evidence supporting a finding
¶284that Winslow was aware that Sergeant Asbell was looking for
¶285images of children; he offered a physical search of his bag containing
¶286 18 his laptop for images of children; he witnessed Sergeant Asbell take
¶287possession of the bag and all of its contents, including his laptop; he
¶288witnessed Sergeant Asbell’s failed attempt to gain access to the data
¶289on his laptop; and he expressly consented to Sergeant Asbell
¶290searching the flash drives that were also in his bag after it was
¶291unclear whether he would regain possession of his items within the
¶292bag, including the laptop. All of these facts together create a far
¶293more extensive picture of Winslow’s consent than the dissent’s focus
¶294on Winslow responding “sure” to Sergeant Asbell’s request to search
¶295his bag. These facts, in our view, satisfy the requirement that “any
¶296evidence” be present to support a finding that Winslow consented to
¶297a thorough search of the digital media the government had taken
¶298into its possession. Further, Winslow witnessed Sergeant Asbell
¶299locate images of children on one of the flash drives that he had
¶300represented were empty, and he knew that his laptop remained in
¶301the possession of law enforcement. While these facts, which we also
¶302consider favorably to the trial court’s disposition, do not inform the
¶303scope of the consent Winslow provided, they are relevant to the trial
¶304 19 court’s consideration of whether that consent was withdrawn.
¶305 Additionally, while the dissent suggests the need for Winslow’s
¶306consent to have been found more specifically for a GBI forensic
¶307search of the laptop 14 months after its seizure, that demands too
¶308much of consent. The standard is what a reasonable person would
¶309have believed the consent to encompass. Whether it was the GBI or
¶310an IT professional in the police department, Winslow could
¶311reasonably be understood to have known that Sergeant Asbell would
¶312seek help in completing his failed search of the laptop at some point
¶313after his laptop was seized. And whether the search was a forensic
¶314search or not, this record supports a finding that Winslow knew that
¶315Sergeant Asbell was going to continue his search for images. And
¶316the trial court was authorized to find that a reasonable person would
¶317understand that the subsequent search may include a forensic
¶318search. Additionally, whether the search took place the day, week,
¶319month, or year following the items being seized was of no meaningful
¶320consequence to Winslow, who did not have possession of the items
¶321on any of those days. A reasonable person could be found to have
¶322 20 understood that the items would be subsequently searched and that
¶323there may be a delay before law enforcement is able to do so. The
¶324fact that this evidence does not seem like enough to convince the
¶325dissent that the scope of Winslow’s consent extended to the search
¶326of his laptop is a separate question from whether there is any
¶327evidence to support such a finding.
¶328 Because the implicit finding that Winslow consented to a
¶329subsequent forensic search of his laptop after it was seized is
¶330supported by evidence in the record, we cannot say that the trial
¶331court erred in denying Winslow’s motion to suppress. And because
¶332we conclude that the trial court did not err in denying the motion to
¶333suppress on the basis of Winslow’s consent to the search in question,
¶334we need not consider the necessity or propriety of a valid search
¶335warrant. See Brooks, 285 Ga. at 425. Accordingly, there is no need
¶336to review Winslow’s remaining arguments on this enumeration.
¶337 3. Winslow next argues that the statutory sentencing scheme
¶338for possession of child pornography under OCGA § 16-12-100 (f) (1)
¶339 21 is facially unconstitutional. 6 Winslow argues that the mandatory
¶340minimum and the maximum sentence provided for possession of
¶341child pornography under OCGA § 16-12-100 (f) (1) violate the
¶342prohibition against cruel and unusual punishment in both the
¶343Eighth Amendment to the United States Constitution and Article I,
¶344Section 1, Paragraph XVII of the Georgia Constitution (“Paragraph
¶345XVII”). We disagree.
¶346 We have recognized that both the Eighth Amendment and
¶347Paragraph XVII “prohibit inflicting cruel and unusual
¶348punishments[,]” which encompasses “sentences that are grossly
¶349disproportionate to the crime committed.” (Citations and
¶350 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 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
¶351SE2d 135) (2019).
¶352 [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.
¶353(Citations and punctuation omitted.) Id. at 336 (3). Additionally,
¶354when reviewing a claim of cruel and unusual punishment under the
¶355Eighth Amendment, “courts must defer to the legislature in
¶356[determinations of sentencing parameters] unless a sentence is so
¶357overly severe or excessive in proportion to the offense as to shock the
¶358conscience.” (Citation omitted.) Gordon v. State, 257 Ga. 439, 440 (2)
¶359(360 SE2d 253) (1987).
¶360 Winslow complains that the punishment for possession of child
¶361pornography imposed under OCGA § 16-12-100 (f) (1) is grossly
¶362disproportionate because the statute does not make distinctions for
¶363sentencing purposes between possession offenses and those
¶364 23 involving the sale, distribution, or manufacturing of child
¶365pornography. He argues that crimes involving possession of child
¶366pornography should carry a lighter sentence because they are non-
¶367violent crimes and because other criminal statutes, such as OCGA §
¶36816-13-30, provide for lesser sentencing parameters for possession
¶369crimes than crimes involving distribution and manufacturing.
¶370 However, even though there is no such distinction in OCGA §
¶37116-12-100 (f) (1), the sentencing parameters are not grossly
¶372disproportionate to the crime of possession of child pornography, an
¶373offense we have long recognized a strong state interest in
¶374discouraging. See State v. Scott, 299 Ga. 568, 575 (3) (788 SE2d 468)
¶375(2016) (“It is evidence beyond the need for elaboration that [the]
¶376government has a compelling interest in protecting the physical and
¶377psychological well-being of children.” (punctuation omitted)). And
¶378Winslow has done nothing to demonstrate that the General
¶379Assembly’s choice to protect the State’s significant interest in
¶380combatting the production, distribution, and possession of such
¶381materials with the range of sentences that can be imposed under
¶382 24 OCGA § 16-12-100 (f) (1) or its decision not to distinguish between
¶383possession, production, and distribution offenses in any way “shocks
¶384the conscience.”7 See Aman v. State, 261 Ga. 669, 670 (1) (a) (409
¶385SE2d 645) (1991) (“[A] State’s interest in safeguarding the physical
¶386and psychological well-being of a minor is compelling. The
¶387legislative judgment, as well as the judgment found in relevant
¶388literature, is that the use of children as subjects of pornographic
¶389materials is harmful to the psychological, emotional, and mental
¶390health of the child.” (punctuation omitted) (quoting Osborne v. Ohio,
¶391 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 Flemming 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 v. Pate, 305 Ga. 333, 339-341 (825 SE2d 135) (2019) (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.
¶392 25 495 U. S. 103, 108-109 (110 SCt 1691, 109 LE2d 98) (1990)). See also
¶393Gordon, 257 Ga. at 440 (2); Johnson v. State, 276 Ga. 57, 62 (5) (573
¶394SE2d 362) (2002). Therefore, given “the requisite deference to the
¶395legislative branch’s authority to impose punishment based on the
¶396mores of society at the time of the crime,” we hold that the
¶397sentencing parameters in OCGA § 16-12-100 (f) (1) are not grossly
¶398disproportionate.8 Widner v. State, 280 Ga. 675, 676 (1) (631 SE2d
¶399675) (2006).
¶400 4. Finally, Winslow argues that the trial court erred in failing
¶401to merge Counts 1 and 2, which were based on Winslow’s
¶402simultaneous possession of two videos found on his laptop, for
¶403sentencing. The State concedes that this was error, and we agree.
¶404 Winslow was found guilty of four counts of sexual exploitation
¶405of children. The trial court merged Count 3 with Count 1, which were
¶406 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.
¶407The trial court also merged Count 4 with Count 2, which were
¶408similarly both based on his possession of the second video on
¶409different dates. However, the trial court declined to merge Count 1
¶410and Count 2, and sentenced Winslow to 15 years in confinement on
¶411Count 1 and five years in confinement with 15 years of probation on
¶412Count 2 to run consecutively with Count 1. This was error.
¶413 In Edvalson, this Court held that OCGA § 16-12-100 (b) (5) 9
¶414only allows for “one prosecution and conviction for the simultaneous
¶415possession of multiple items of ‘visual media’” and clarified that
¶416possession can be simultaneous “regardless of the number of images
¶417 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 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)
¶418(5) (defining “visual medium” as “any film, photograph, negative,
¶419slide, magazine, or other visual medium”). Because both Count 1 and
¶420Count 2 were based on Winslow’s simultaneous possession of the two
¶421videos, the trial court erred in failing to merge these counts for
¶422sentencing. Therefore, we vacate Winslow’s sentence and remand
¶423this case for resentencing consistent with Edvalson.
¶424 Judgment affirmed in part and vacated in part, and case remanded for resentencing. All the Justices concur, except Boggs, C. J., Peterson, P. J., Warren and Pinson, JJ., who dissent.
¶425 28 PETERSON, Presiding Justice, dissenting.
¶426 Imagine that you’re talking with a police officer at a Walmart.
¶427The officer asks whether you have inappropriate images on your
¶428laptop. You say no. He asks, “can I check?” And you say, “sure.” I am
¶429skeptical that your “sure” can reasonably be understood as consent
¶430to a GBI forensic search of the laptop 14 months later. The majority
¶431presumes that the trial court’s oral ruling (which said nothing of the
¶432sort) must have implicitly made such a finding. If it had done so
¶433explicitly, on this record, I would probably determine that was
¶434wrong. But because I think that the trial court should at least have
¶435the chance to articulate any such finding for itself before I conclude
¶436it was wrong, I would vacate and remand for the trial court to
¶437determine for itself whether it believes such a finding is appropriate.
¶438I respectfully dissent.
¶439 As the majority correctly explains, the law is that consent
¶440continues until withdrawn or until the reasonably understood
¶441duration of that consent expires. “A suspect may of course delimit as
¶442he chooses the scope of the search to which he consents.” Florida v.
¶443 29 Jimeno, 500 U.S. 248, 252 (111 SCt 1801, 114 LE2d 297) (1991). This
¶444includes limiting the duration of the consent to search. See 2 Wayne
¶445R. LaFave et al., Criminal Procedure § 3.10 (f) (4th ed. Nov. 2021
¶446update) (“Even if it is determined that the consent of the defendant
¶447or another authorized person was ‘voluntary’ within the meaning [of
¶448controlling United States Supreme Court case law], it does not
¶449inevitably follow that evidence found in the ensuing search will be
¶450admissible. This is because it is also necessary to take account of any
¶451express or implied limitations on the consent which mark the
¶452permissible scope of that search in terms of its time, duration, area
¶453or intensity.”). “Even when an officer has consent to conduct a
¶454search, he violates the Fourth Amendment if he goes beyond the
¶455scope of consent.” Fuqua v. Turner, 996 F3d 1140, 1151 (11th Cir.
¶4562021) (citing Jimeno, 500 U.S. at 251). And “[t]he standard for
¶457measuring the scope of a suspect’s consent under the Fourth
¶458Amendment is that of ‘objective’ reasonableness — what would the
¶459typical reasonable person have understood by the exchange between
¶460the officer and the suspect?” Jimeno, 500 U.S. at 251.
¶461 30 In affirming the denial of Winslow’s motion to suppress, the
¶462majority relies heavily on the presumption that trial judges have
¶463understood and followed the law, absent the record indicating
¶464otherwise. See Edwards v. State, 301 Ga. 822, 826 (2) (804 SE2d 404)
¶465(2017). To have properly applied the law in this case, the trial court’s
¶466finding that consent permitted a GBI search 14 months later would
¶467have required two supporting findings: (1) that the duration of
¶468Winslow’s consent at the Walmart for Sergeant Asbell to search his
¶469laptop was reasonably understood to be for at least 14 months, and
¶470(2) the scope of that consent extended beyond consent to search
¶471Winslow’s laptop in the Walmart parking lot — up to and including
¶472that it would have been objectively reasonable to conclude that the
¶473scope of that consent extended to a forensic analysis of the computer
¶474by the GBI 14 months after Sergeant Asbell seized it. The majority
¶475acknowledges that the record does not reveal any trial court finding
¶476on either of these points, so any such findings would be merely
¶477creatures of our presumption.
¶478 I am skeptical that the record would permit us to affirm any
¶479 31 such findings. Sergeant Asbell testified that he asked Winslow “can
¶480I check” whether Winslow had other pictures of children on his
¶481laptop and thumb drives; Winslow “was, like, sure.” Later in his
¶482testimony, Sergeant Asbell also recounted the exchange as asking
¶483Winslow if he had anything “on the drives” or had any “pictures of
¶484kids that you shouldn’t have,” and that Winslow consented by saying
¶485“you can look” or “I [Sergeant Asbell] could check.” This testimony
¶486seems to me strong evidence that Winslow consented to Sergeant
¶487Asbell searching the electronics while at the Walmart; it strikes me
¶488as wholly inadequate to support a finding that his consent was
¶489reasonably understood as continuing for 14 months and extending
¶490to a forensic search by the GBI — by a different person, at a different
¶491time and place, using different means. See LaFave, supra (“As a
¶492general rule, it would seem that a consent to search may be said to
¶493have been given on the understanding that the search will be
¶494conducted forthwith and that only a single search will be made.”);
¶495United States v. Casellas-Toro, 807 F3d 380, 391 (1st Cir. 2015)
¶496(observing that three-week delay in search of car in FBI custody
¶497 32 “approaches the outer limit of a reasonable time to complete a
¶498consent search”); State v. Peterson, 273 Ga. 657, 659 (1) (543 SE2d
¶499692) (2001) (“Additional investigators or officials may enter a
¶500citizen’s property after one official has already intruded legally. . . .
¶501Of course, the later officials must confine their intrusion to the scope
¶502of the original invasion unless a warrant or one of the exceptions to
¶503the warrant requirement justifies a more thorough or wide ranging
¶504search.” (quoting United States v. Brand, 556 F2d 1312, 1317 & n.9
¶505(5th Cir. 1977) (punctuation omitted)).
¶506 The majority also focuses on Winslow’s failure to withdraw his
¶507consent to search upon being arrested, suggesting that silence in the
¶508face of law enforcement taking his laptop post-arrest was essentially
¶509consent. This strikes me not as consent, but acquiescence. Yet
¶510“[w]hen a prosecutor seeks to rely upon consent to justify the
¶511lawfulness of a search, he has the burden of proving that the consent
¶512was, in fact, freely and voluntarily given. This burden cannot be
¶513discharged by showing no more than acquiescence to a claim of
¶514lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 548-549
¶515 33 (88 SCt 1788, 20 LE2d 797) (1968). 10 And the majority’s stated
¶516assumption that Winslow consented to Sergeant Asbell’s search of
¶517the flash drives only “after it was unclear whether he would regain
¶518possession of his items within the bag, including the laptop” is not
¶519reasonably inferred from this record; whether Winslow may have
¶520guessed that he would not get his laptop back that day based upon
¶521his own subjective knowledge of the images contained on the flash
¶522drives is not germane to the objective question of what “the typical
¶523reasonable person [would] have understood by the exchange
¶524between” him and Sergeant Asbell. Jimeno, 500 U.S. at 251.
¶525 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
¶526make factual findings ourselves in the first instance. I would not
¶527conclude the trial court was wrong on the basis that a hypothetical
¶528finding that Winslow had given consent continuing for 14 months
¶529and extending to a forensic search by the GBI is unsupported by the
¶530record. Presuming a finding that we ourselves articulate in
¶531sufficient detail to assess and then determining that it is
¶532unsupported by the record is, for me, too close to making factual
¶533findings ourselves, and may wind up being unfair to the trial court.
¶534After all, with the benefit of reviewing more than merely the cold
¶535record before us, the trial court might have some reason for such a
¶536finding that presently escapes my imagination. 11 Before concluding
¶537that no such supportable finding is possible, I would remand for the
¶538trial court to make explicit findings that we could then review.
¶539 I’ll also point out that the only reason we have to resolve this
¶540case on consent grounds is that the State may have fouled up the
¶541 11Of 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
¶542thereunder, making it difficult to affirm the trial court’s alternative
¶543holding that the search performed was done reasonably and under
¶544a valid warrant. I share the majority’s prudent desire to avoid those
¶545hard and novel constitutional questions if not necessary to decide
¶546them (which is yet another reason I would vacate). But I would not
¶547do so by finding consent where we have little reason to believe that
¶548the trial court properly found it. I respectfully dissent from the
¶549judgment of the Court. (I do not disagree with anything said in
¶550Divisions 3 and 4 of the majority opinion, but I cannot join in the
¶551judgment of Division 4 because I would vacate and remand the case
¶552as to the motion to suppress, rather than vacating Winslow’s
¶553sentence and remanding for resentencing at this time. To the extent
¶554that Division 3 can be said to have a judgment, I join it.)
¶555 I am authorized to state that Chief Justice Boggs, Justice
¶556Warren and Justice Pinson join in this dissent.
¶557 36