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
1

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) 
2

(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 asapplied 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.
3

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 
4

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 
5

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 
6

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 warrant2 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. 
7

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 
8

(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. 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.
9

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 
10

(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’ 
11

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.
12

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 
13

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 
14

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 
15

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. 
16

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 
17

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 
18

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 
19

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 
20

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 
21

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) 
22

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). 
23

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 
24

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 nonviolent 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 
25

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. 
26

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).
27

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. 
28

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.
29

 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. 
30

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. 
31

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 
32

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 
33

“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 
34

(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.
35

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 

 11 Of course, the mere possibility that such a reason might exist is far too 

speculative a basis on which to affirm such a hypothetical finding.
36

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.