The State indicted Faiz Al-Khayyal on 49 counts of sexual exploitation of children in violation of OCGA § 16-12-100 b 8, based upon allegations that he possessed and controlled child pornography in the form of digital files on his laptop computer. The Superior Court of Clayton County sustained Al-Khayyal’s plea in bar and granted his motion to dismiss the indictment for lack of venue, finding that, although Al-Khayyal possessed the computer in Clayton County, he had deleted the digital files before he entered the county and could no longer access the illegal images, and, therefore, that there was no evidence that he committed the offenses as alleged in the indictment. The State appeals this ruling, in part, as to Counts 30 through 49.1 For the reasons explained below, we reverse in part.
The following facts are undisputed. In 2009, while Al-Khayyal, a professor at the Georgia Institute of Technology, was abroad teaching in China, he became the target of an investigation into child pornography. When he returned to the United States on August 5, 2009, bringing his laptop computer, immigration control officers detained him in the Atlanta airport in Clayton County and seized that computer. A forensic computer specialist for the Georgia Bureau of Investigation conducted a forensic examination of the computer, using specialized forensic software, and discovered 29 digital files that contained sexually explicit images of young girls. The files had been placed in the computer’s trash folder, which had then been emptied, so that the files were permanently deleted or “double-deleted” and inaccessible to the user.2 A subsequent examination of the computer yielded 20 additional files that had been “deleted” but remained saved in the trash folder.3 Those files were in a compressed “.rar” format, and the images contained in the files could be viewed only with an “uncompressing” or “unzipping” program that at that time was not loaded on the computer. A different unzipping program, however, was loaded on the computer, and the computer’s history files showed that the software had been used, though not on the files at issue in this case. In addition, the computer specialist testified that the software required to access the .rar files is readily available to the public and can be used without special training. When the computer specialist used the required software to “rebuild” the .rar files in the trash folder, she found that the files also contained sexually explicit images of young girls.
