Charles Henderson v. State

Court of Appeals of the State of Georgia

ATLANTA,_________________ June 21, 2012

The Court of Appeals hereby passes the following order: A12A0510. HENDERSON v. THE STATE.

Charles Ralph Henderson was tried by a Floyd County jury and convicted of four counts of sexual exploitation of children. He filed a Notice of Appeal from his convictions on October 24, 2011, indicating that “[n]othing should be omitted from the record on appeal.” In his first enumeration of error, Henderson argues that OCGA § 16-12-100 requires the State to prove beyond a reasonable doubt that a defendant knows the victim in a sexual exploitation of a child case is under 18 years of age, see Berry v. State, 281 Ga. App. 424, 425 (636 SE2d 150) (2006), and the State failed to meet its burden of proof in this case. In response, the State noted that it produced videos at trial and that “[t]he jury certainly could make a determination as to whether the subjects of each video were prepubescent and of minor age.” Since the videos were not included in the record on appeal, the Clerk of this Court ordered the Floyd County Clerk to transmit the videos to this Court for our review. The Floyd County Clerk obtained the videos – which were housed with both the District Attorney’s office and the Georgia Bureau of Investigation office – and transmitted them to this Court. However, the disks marked State’s exhibits 2 and 5 are protected by CD-Lock and require a password to gain access. The Clerk of this Court again contacted the Floyd County Clerk, who in turn contacted the District Attorney’s office, and was told that the attorney who handled the case was no longer with the District Attorney’s office, and the District Attorney’s office did not have the passwords. Given the circumstances of this case, and the fact that we cannot as the record now stands review Henderson’s appeal, we hereby remand the case to the trial court for the record to be perfected by supplementing the record with passwords sufficient

to access the exhibits or with the substitution of exhibits that require no such passwords. Especially because Henderson does not appear to be at fault, we direct the court below to perfect the record as expeditiously as possible. When the record is perfected, the clerk of the court below shall transmit the record again to our Court, at which time the appeal will be docketed again.

Court of Appeals of the State of Georgia 06/21/2012 Clerk’s Office, Atlanta,_________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.