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McCullough v. State

The trial court did not commit plain error in three jury charges the defendant challenged on appeal.

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Based on evidence that he had multiple videos of child pornography on his laptop computer, a jury found Kyle Jameson McCullough guilty of five counts of sexual exploitation of children. McCullough filed a motion for a new trial, which the trial court denied. On appeal, McCullough contends that the trial court committed plain error in its charges to the jury on the law of deliberate ignorance, equal access, and the use of custodial statements for impeachment purposes. For the reasons discussed below, we conclude that there was no plain error and therefore affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 732 SE2d 845 2012. So viewed, the evidence showed that on January 7, 2010, an undercover detective with the Paulding County Sheriff’s Office conducted a search for child pornography on LimeWire, a peer-to-peer file-sharing program that was available for free over the Internet at the time in question, and which allowed users to search for and download files stored in a shared folder on other users’ computers. See United States v. Conner, 521 Fed. Appx. 493, 494-495 6th Cir. 2013 explaining LimeWire; United States v. Stults, 575 F.3d 834, 842 8th Cir. 2009 same. The detective used specialized software developed by the Federal Bureau of Investigation to detect files that LimeWire users made available for download that might contain child pornography. Using this software, the investigator identified four suspicious files made available for sharing by a particular computer, downloaded them, and confirmed that they contained images of child pornography. On January 30, 2010, the detective downloaded an additional file containing child pornography while searching LimeWire that appeared to come from the same computer.

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