Winslow v. State ( 2022 )


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  •            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
    NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
    Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
    opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
    prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
    official text of the opinion.
    In the Supreme Court of Georgia
    Decided: November 2, 2022
    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
    For the reasons set forth below, we affirm Winslow’s
    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 § 16-12-110 (f) (1).
    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.
    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
    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
    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 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
    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
    expired. Additionally, Winslow argued that the warrant 2 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
    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.
    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
    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 a typical reasonable person
    have understood by the exchange between the officer and the
    suspect?” (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 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
    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. 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
    “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.
    construes the evidence most favorably to upholding the trial court’s
    findings and judgment and will not disturb the trial court’s findings
    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 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 F.2d 1113
    , 1117-1118
    (IV) (11th Cir. 1991) (noting that “importantly, [the defendant] was
    physically present while [the officer] searched the car, and had
    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) (
    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
    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
    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.
    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
    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 (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
    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).
    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
    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. . . .” 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
    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.
    laptop extended beyond that interaction, to 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
    record suggesting otherwise.” (Citation 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. . . .” 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 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.”).
    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
    “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 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 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
    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)
    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 1, 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 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).
    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
    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 State v. Scott, 
    299 Ga. 568
    , 575 (3) (
    788 SE2d 468
    )
    (2016) (“It is evidence beyond the need for elaboration that [the]
    government has a compelling interest in protecting the physical and
    psychological well-being of children.” (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
    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) (a) (
    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 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.
    
    495 U. S. 103
    , 108-109 (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).
    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 with 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 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.
    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., Warren and Pinson, JJ., who dissent.
    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.
    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
    .
    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
    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
    “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
    (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.
    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
    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.
    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.