State of Tennessee v. Domnick Doria ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
June 9, 2015 Session
STATE OF TENNESSEE v. DOMNICK DORIA
Appeal from the Circuit Court for Montgomery County
No. 41200380 Michael R. Jones, Judge
No. M2014-01318-CCA-R3-CD – Filed April 26, 2016
_____________________________
Defendant, Domnick Doria, was indicted by the Montgomery County Grand Jury for 39
counts of sexual exploitation of a minor. Defendant was convicted as charged in counts
two, three, four, and six. Defendant was convicted of a lesser-included offense in counts
one, five, and seven through thirty-nine. Defendant received an effective sentence of 13
years for all his convictions. In this appeal as of right, Defendant contends that the trial
court erred by denying his motions to suppress his statement to police and evidence
collected from his home during the execution of a search warrant; that the evidence is
insufficient to support his convictions; that the trial court improperly admitted hearsay
testimony; that the trial court erred by admitting previously excluded evidence; that
Defendant‟s convictions violate the double jeopardy clause; and that the trial court erred
by imposing consecutive sentencing. Having reviewed the entire record and the briefs of
the parties, we conclude that the judgments of the trial court should be affirmed.
Tenn. R. App. P. 3 Appeal as of Right, Judgments of the Circuit Court Affirmed
THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.
Margaret E. Garner, Clarksville, Tennessee, for the Appellant, Domnick Doria.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel,
John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
Motions to Suppress
Defendant filed two pretrial motions to suppress. One motion sought to suppress
evidence found at Defendant‟s home during the execution of a search warrant. The other
motion sought to suppress Defendant‟s statement he made at his home during the
execution of the search warrant. Following an evidentiary hearing, the trial court denied
Defendant‟s motions.
Investigator Mike Cereceres, of the Montgomery County Sheriff‟s Office, testified
that on July 11, 2011, he executed a search warrant at 3864 Northeast Drive, Apartment
B, in Clarksville. The affidavit in support of the search warrant was admitted as an
exhibit to the hearing without objection. The affidavit included information describing
Cereceres‟ background as an investigator assigned to the Internet Crimes Against
Children (“ICAC”) Task Force. The affidavit indicated that Cereceres is “a Certified
Computer Forensic Examiner” with the sheriff‟s office. Investigator Cereceres testified
that the designation was an error, and he was not certified although he had attended a
training course. In preparing the affidavit, Investigator Cereceres used a template that
already contained boilerplate language that the affiant was a certified computer forensic
examiner. He testified that he had previously removed that language in preparing
affidavits for other search warrants, but he inadvertently left the incorrect statement of
credentials in the affidavit he prepared in this case. Investigator Cereceres testified that
his “purpose [wa]s not to be deceitful.” He testified, “I have done way too many cases,
there is no need to lie.”
The trial court denied Defendant‟s motion to suppress evidence seized during the
execution of the search warrant. The trial court found that “[i]t was purely inadvertence
on [Cereceres‟] behalf and not intended by any means to sway the issuing magistrate one
way or the other[.]”
The following testimony is pertinent to Defendant‟s motion to suppress his
statement to Investigator Cereceres during the execution of the search warrant.
Investigator Cereceres arrived at Defendant‟s residence to execute the search warrant at
5:20 a.m. Investigator Cereceres and another officer were both armed. Defendant shared
the apartment with two roommates who were present when Investigator Cereceres
arrived, but Defendant had already left to go to work. Investigator Cereceres asked the
roommates to contact Defendant. Investigator Cereceres explained that he “like[s] to
have everyone there, whosoever room that is, [he] would like them to be there during
execution to obtain statements.” One of the roommates called Defendant, and Defendant
arrived shortly thereafter.
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By the time Defendant returned to the apartment, all of the rooms containing a
computer had been searched except for Defendant‟s room. Investigator Cereceres spoke
to Defendant and told him his purpose for being there. Investigator Cereceres showed
Defendant the search warrant. Investigator Cereceres asked Defendant if he had a
computer, and Defendant responded that there was a computer in his bedroom.
Investigator Cereceres testified that he advised Defendant of his Miranda rights and that
Defendant read and signed a waiver of rights form. Investigator Cereceres did not make
an audio or video recording of Defendant being advised of his rights. Investigator
Cereceres asked Defendant questions which he wrote on the back of the waiver of rights
form, and Defendant wrote his answers. Investigator Cereceres asked Defendant if he
used “peer-to-peer” software. Investigator Cereceres testified that Defendant did not
attempt to leave the interview.
Defendant testified that a search warrant was executed at his apartment on July 11,
2011. At the time of the search, Defendant was a sergeant in the infantry at Fort
Campbell. On the morning of the search, Defendant left his apartment at 4:30 a.m. to
report for work at 5:00 a.m. Defendant had passed through the security gates at Fort
Campbell when he received a phone call from his roommate Paul Nacin advising him that
the police were at the apartment. Defendant immediately informed his platoon sergeant
that he would be late for work, and Defendant returned to the apartment.
When Defendant arrived at the apartment, he was met by Investigator Cereceres
and another officer who was armed. Mr. Nacin and Mr. Porter were also in the
apartment. Defendant could not recall whether Investigator Cereceres was armed, but he
testified that he was wearing a bullet-proof vest. Defendant testified that Investigator
Cereceres advised him not to talk to his roommates. Defendant testified,
The questioning came about, we came in my room, said is that your
computer? I said yes. We sat down on the bed and he also looked around
and I opened the closet for him, to show him I had no other objects,
storing device of computer images. And then he asked me if I had
people-to-people sharing network and I informed him yes and then
before the questioning went on any further, he said hold on, let me write
these down and then you can answer them.
Defendant testified that Investigator Cereceres did not advise him of his Miranda
rights. He testified that he would not have answered Investigator Cereceres‟ questions if
he had been advised of his rights. Defendant expressed concern about losing his rank of
sergeant, and Investigator Cereceres told Defendant, “I‟ll make sure that when everything
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does happen, the Army takes it easy on you.” Defendant testified, “I figured I would
cooperate as best I possibly could and answered every question he gave me.”
Defendant testified that after he answered all of Investigator Cereceres‟ written
questions, Investigator Cereceres told him to “flip [the form] to the back” and sign and
date it, “stating that everything [Defendant] answered was to the best of [his] knowledge
and as truthful as possible.” Defendant testified that he did not read over the form.
Defendant wrote the time as 5:29 a.m.
The back of the form reads as follows:
I Domnick Doria have lime wire and frost wire and have download[ed]
P2P networking on my computer along with songs and have accidently
[sic] downloaded other things[.] I also do searches of taboo materials
and strange fetishes such as
moms/incest/pee/[b]eastiality/tranny/shemale/sons/[b]rother,sister
1) Did you install the P2P network programs?
A – yes I am [sic]
2) Have you ever searched for child pornography?
A – no I have not
3) Will I find child sex abuse images on this computer owned by you[?]
A – yes by accident
4) What have you accidentally downloaded[?]
A – There are images of mothers with there [sic] kids
5) Around how many images will I find of child sex abuse, will I find
on you[r] computer?
A – approximately 25
Defendant testified that he signed the document and noted “0529” as the time.
Defendant denied that he wrote “6:03” on the front page of his statement. He testified
that he always wrote the time in military time. Defendant testified that he arrived at Fort
Campbell at “4:50ish” and returned to the apartment between 5:20 and 5:25. Defendant
estimated that it took him approximately 15 to 20 minutes to commute between work and
home.
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Defendant testified that he would not have made a statement to Investigator
Cereceres if he had been advised of his rights. He also testified that if he had known that
Investigator Cereceres lacked any leverage with the Army, he would not have answered
his questions. Defendant testified that he did not feel free to leave and believed that he
would be arrested if he attempted to leave. Defendant testified that he believed “it was
mandatory to be there” during the execution of a search warrant.
At the conclusion of the hearing, the trial court accredited Investigator Cereceres‟
testimony and found that Defendant was advised of his Miranda rights. The trial court
denied Defendant‟s motion to suppress his statement.
Trial
Michael Cereceres testified that in 2011, he was an investigator with the Internet
Crimes Against Children (“ICAC”) unit of the Montgomery County Sheriff‟s Office and
was the lead investigator in Defendant‟s case. Investigator Cereceres used “peer-to-peer”
or file sharing software to locate people who were creating and disseminating child
pornography. Using information obtained through that software, Investigator Cereceres
obtained a search warrant for Defendant‟s residence. Investigator Cereceres seized
Defendant‟s computer during the search. Defendant gave a statement to Investigator
Cereceres. Defendant stated that he had “accidentally downloaded” images of child
sexual abuse. Defendant also stated that he had done computer searches “of tab[oo]
materials and strange fetishes such as [m]oms, incest, . . . shemales, sons, brother, sister.”
Investigator Cereceres executed the search warrant on July 11, 2011.
Investigator Cereceres testified that other residents in the apartment had access to
Defendant‟s computer. He testified that Defendant‟s roommates, Mr. Nacin and Mr.
Porter, each had their own computer and all of them were connected to the same IP
address, however, Defendant‟s computer had the globally unique identification number
(“GUIN”) of the file-sharing software. Neither of Defendant‟s roommates‟ computers
contained peer-to-peer software. Investigator Cereceres conducted a cursory review of
those computers and found no evidence of downloaded child pornography. Investigator
Cereceres retrieved Defendant‟s computer and turned it over to Scott Levasseur for
forensic examination. In order to preserve evidence, Investigator Cereceres did not
conduct a cursory review of Defendant‟s computer. Defendant‟s statement was admitted
as evidence and read to the jury.
Paul Nacin testified that he served with Defendant in the Army. Mr. Nacin and
Defendant were both deployed to Afghanistan in 2011. They became roommates when
Mr. Nacin returned from Afghanistan in April, 2011. Mr. Nacin testified that he had
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never used Defendant‟s computer and that he had never observed Defendant looking at
child pornography on Defendant‟s computer.
Andrew Porter was also roommates with Defendant and served with Defendant in
Afghanistan. Mr. Porter was present at the time the search warrant was executed. Mr.
Porter testified that he never used Defendant‟s computer and that he never saw anyone
else use Defendant‟s computer. Mr. Porter testified that he never observed Defendant
looking at pornographic images on his computer.
Scott Levasseur, a detective with the Dickson County Sheriff‟s Office, was
assigned to the F.B.I. Task Force in Nashville to investigate internet crimes against
children. Detective Levasseur was tendered as an expert in computer forensic
examinations and peer-to-peer child pornography examination without objection by
Defendant. Detective Levasseur conducted a forensic examination of Defendant‟s
computer at the request of the Montgomery County Sheriff‟s Office. Detective
Levasseur made an exact copy of the computer hard drive. His examination revealed that
the computer was registered to Defendant. Detective Levasseur located more than 4,000
images and 61 video files of child pornography on Defendant‟s computer in both “live”
and “deleted” formats. He explained that “live” files are available for any user to open
and view, and “deleted” files are files that have been deleted and placed in the recycle bin
where they remain until the contents of the recycle bin are deleted. Detective Levasseur
provided the dates in May, 2011 through July, 2011, on which the files were downloaded
onto the computer.
Detective Levasseur testified that he found no “other user activity except for the
defendant[.]” He testified that it was his opinion, based on Defendant‟s statement and his
examination of Defendant‟s computer, that Defendant was the individual who
downloaded the images onto the computer. He testified, “Yes, sir, I have no doubt
[Defendant] is responsible for it.” Detective Levasseur testified that it was “fairly easy”
to associate the child pornography downloads with a particular user. He testified, “all of
the accounts, internet account history, pictures, stuff like that, all belonged . . . they were
of the defendant[.]” Detective Levasseur observed activity on Facebook and Skype, and
both accounts belonged to Defendant. He identified another user on the laptop by the
name and profile of “Jennifer Relsarro.” Detective Levasseur attempted to locate
“Jennifer Relsarro” by searching every police database and was unsuccessful. He
testified that there were no women living in Clarksville by that name. He conducted “a
reverse picture look up on the internet” and found the photograph appeared on over 200
websites, and it was originally created in an amateur pornographic site. Detective
Levasseur testified that “it is not unusual for people on the internet to pose – as males
posing as females, and vice versa so – but I was able to in fact, confirm that this woman
doesn‟t live in Clarksville and that is made up, this profile is made up.” The profile
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“Jennifer Relsarro” was using Yahoo Instant Messenger to access and download child
pornography.
Detective Levasseur testified that, in his opinion, “Jennifer Relsarro” was a user
account created by Defendant and “used by the Defendant to download child
pornography from other users on the internet.” He testified:
The interesting fact with her use on instant messenger and the
defendant‟s use, they coincide with each other. You have her logged in
requesting specific types of child pornography files from users out there
in cyberspace and then you have her logging off instant messenger and
within one minute, the defendant‟s account, Dom Doria 13 gets logged
in. So that gets me digging deeper and looking at the access of this
account with other accounts and I am able to see that every time this
account is used, other accounts belonging to the defendant are used just
before or just after or during, when this person is logged in. So – it is
pretty obvious that it is the same person.
Detective Levasseur‟s examination of Defendant‟s computer revealed an instance
where Defendant was playing an online game using an account or profile identified with
him at the same time that a child pornography file was being accessed or downloaded.
Detective Levasseur also conducted a search to determine whether Defendant‟s
roommates had used his computer and found no information that anyone besides
Defendant had used the computer, with the exception of “one small [S]kype fragment that
[he] was able to get out,” which was a communication between Andrew Porter and his
girlfriend.
Detective Levasseur testified that there were “about ninety child pornography
images” in the “download folder” on Defendant‟s computer. He testified that “mixed in
with those child pornography files are some images of the Defendant in his Army
uniform, he looked like he was on deployment[.]” Detective Levasseur found “a total of
sixty-six pornographic video files. Thirty-four of those were child pornography and we
are talking live files . . . and then fourteen of them were of adult porn[.]” Detective
Levasseur explained that “frostwire is a peer-to-peer file sharing program.” He explained
that users input search terms to locate specific files. Users of the file sharing program are
connected from “all over the world.” Detective Levasseur also found “six pages” of
partially downloaded files containing pornographic images and videos of children in the
“incomplete” folder on Defendant‟s computer. Detective Levasseur noted several
occasions when child pornography files were downloaded onto Defendant‟s computer
while Defendant was logged in using his username or profile. Detective Levasseur found
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no evidence that a virus or malware downloaded child pornography onto Defendant‟s
computer.
Defendant testified that the computer taken from his apartment examined by
Detective Levasseur belonged to him. He testified that his mother sent him the laptop
while he was deployed in Afghanistan to “just watch movies and play music in [his]
down time.” He also used his computer to communicate with his family. Defendant
testified that “only a select few guys” had computers there, and he often allowed other
soldiers to use his computer. Defendant was surprised that Detective Levasseur did not
find any chat fragments from other soldiers on his computer. Defendant testified that his
account passwords were saved on his computer, and other people could access his
accounts while using his computer. He testified that he did not monitor other soldiers‟
use of his computer. Defendant testified that soldiers used flash drives or external hard
drives to download files from each others‟ computers.
Defendant returned from Afghanistan in April, 2011, and moved into an apartment
he shared with Andrew Porter and Paul Nacin. Defendant testified that he did not keep
his bedroom door locked and that he kept his computer either in his bedroom or in the
living room. Defendant testified that in the first “couple of weeks that we were first back
[from Afghanistan], we had a lot of people at the house.” Defendant testified that both of
his roommates had their own computers.
Defendant testified that he downloaded Frostwire to download music and movies.
He acknowledged that he gave a written statement to the police. Defendant added that he
searched certain terms “to find role playing material.” Defendant denied that he searched
terms to download child pornography. Defendant testified that he downloaded child
pornography by accident, and he attempted to delete it. Defendant added that he had no
specialized computer training.
Defendant testified that on the night before the search warrant was executed, he
and his two roommates were the only people present in the apartment. He testified that
he stayed up late playing his X-Box. Defendant was unaware of anyone having access to
his computer that evening. Defendant denied that he downloaded child pornography that
evening.
Sentencing
At the sentencing hearing, the presentence report was admitted as an exhibit.
Cynthia Demarks, Defendant‟s mother, testified that Defendant and his wife moved into
her house in July, 2013. She described Defendant as a “wonderful” and “caring” young
8
man growing up who was never in trouble. Ms. Demarks and Defendant‟s father
divorced when Defendant was eleven years old.
Ms. Demarks testified that Defendant was deployed twice while serving in the
Army. Defendant was first deployed to Iraq and later to Afghanistan. She testified that
Defendant was honorably discharged in August, 2012, and his discharge was not
connected to this case. Ms. Demarks testified that Defendant could live with her upon his
release from incarceration, and she would make sure Defendant complies with the sex
offender registry.
Dominic Doria, Sr., Defendant‟s father, testified that he had a “very good
relationship” with Defendant. He testified that Defendant was “a good boy” growing up
and did not get into trouble. He testified that Defendant could live with him after his
release and work with him as a landscaper.
Lauren Doria, Defendant‟s wife, testified that she began dating Defendant in July,
2011, while this case was pending. She and Defendant married on April 21, 2012. Their
son was born three weeks prior to the sentencing hearing. Ms. Doria testified that
Defendant was unable to be present for the birth of their son. Ms. Doria testified that she
lived in Florida with Ms. Demarks, but she planned to move to Tennessee to be closer to
Defendant. She understood that Defendant would be required to register as a sex
offender. She described Defendant‟s family as being “tight knit.” She testified that
Defendant suffered from anxiety and depression from having seen “his friends die in
front of him” during his deployments. She testified that Defendant had received
treatment for his depression.
The trial court sentenced Defendant to nine years for each of his four separate
Class B felony convictions, four years for each of his eleven Class C felony convictions,
and three years for his remaining convictions, all Class D felonies. The court ordered
that all of Defendant‟s Class B felony convictions be served concurrently and that his
Class C and D felony convictions be served concurrently with each other, but consecutive
to his Class B felony convictions, for a total effective sentence of 13 years.
Analysis
Validity of search warrant
Defendant challenges the trial court‟s ruling on his motion to suppress evidence
obtained from the search of his residence. Specifically, Defendant argues that: 1) the
warrant was void because it was not issued upon the application of the District Attorney
General; 2) the sworn affidavit of Investigator Cereceres contained false information
9
about his certification and training; and 3) the criminal activity described in the affidavit
was stale and did not establish probable cause. The State responds that the trial court
properly denied Defendant‟s motion to suppress.
A trial court‟s factual determinations made in deciding a motion to suppress will
be upheld on appeal unless the evidence preponderates otherwise. State v. Williamson,
368 S.W.3d 468, 473 (Tenn. 2012). Determinations regarding the credibility of
witnesses, the weight or value of the evidence, or conflicts in the evidence are matters
entrusted to the trial judge as the trier of fact. State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). “The prevailing party in the trial court is entitled to the strongest legitimate view
of the evidence adduced at the suppression hearing as well as all reasonable and
legitimate inferences that may be drawn from that evidence.” State v. Day, 263 S.W.3d
891, 900 (Tenn. 2008). If the factual findings are based entirely on evidence that does
not involve a credibility determination, appellate review is de novo. State v. Moats, 403
S.W.3d 170, 177 (Tenn. 2013). However, if the evidence involves credibility
determinations, the appellate court defers to the trial court‟s factual findings unless the
evidence preponderates otherwise. State v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003).
The trial court‟s application of the law to the facts is reviewed de novo. State v. Carter,
16 S.W.3d 762, 765 (Tenn. 2000).
Under both the Tennessee and United States Constitutions, no search warrant may
be issued except upon probable cause, which “requires reasonable grounds for suspicion,
supported by circumstances indicative of an illegal act.” State v. Smotherman, 201
S.W.3d 657, 662 (Tenn. 2006). Tennessee requires a written and sworn affidavit,
“containing allegations from which the magistrate can determine whether probable cause
exists,” as “an indispensable prerequisite to the issuance of a search warrant.” State v.
Henning, 975 S.W.2d 290, 294 (Tenn. 1998). The affidavit must contain more than mere
conclusory allegations on the part of the affiant. Id. The standard to be employed in
reviewing the issuance of a search warrant is “whether the issuing magistrate had „a
substantial basis for concluding that a search would uncover evidence of wrongdoing.‟”
Smotherman, 201 S.W.3d at 662 (quoting State v. Ballard, 836 S.W.2d 560, 562 (Tenn.
1992)).
Our supreme court has explained that, in order to establish probable cause for the
issuance of a search warrant, the underlying affidavit “must set forth facts from which a
reasonable conclusion might be drawn that the evidence is in the place to be searched.”
State v. Smith, 868 S.W.2d 561, 572 (Tenn.1993) (citations omitted). “The nexus
between the place to be searched and the items to be seized may be established by the
type of crime, the nature of the items, and the normal inferences where a criminal would
hide the evidence.” Id. (citation omitted); see also State v. Saine, 297 S.W.3d 199, 206
(Tenn. 2009) (recognizing that an affidavit in support of a search warrant “must show a
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nexus among the criminal activity, the place to be searched, and the items to be seized”)
(citing State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002); Smith, 868 S.W.2d at 572)). “In
determining whether probable cause supports the issuance of a search warrant, reviewing
courts may consider only the affidavit and may not consider other evidence provided to
or known by the issuing magistrate or possessed by the affiant.” Id. (citing State v.
Carter, 160 S.W.3d 526, 533 (Tenn. 2005)).
A. Application for search warrant
Defendant asserts that the warrant in this case is void because it was not signed by
the District Attorney General. The application for the warrant in this case was signed by
Assistant District Attorney General Kimberly Lund. Defendant contends that a warrant
issued for violation of Tennessee Code Annotated section 39-17-1003 requires the
signature of the District Attorney General and only the District Attorney General under
the statute. See T.C.A. § 39-17-1007. Defendant argues that if the legislature wanted the
District Attorneys General to delegate the responsibility of seeking a warrant in a case
involving the sexual exploitation of minors to an assistant district attorney, it would have
specifically authorized the delegation of that authority as it did in Tennessee Code
Annotated § 8-7-501, which provides in part:
Whenever required by the grand jury, the district attorney general or a
designated assistant may attend before that body for the purpose of
assisting in its inquiries, which assistance may include the examination
of witnesses and the giving of legal advice as to any matters cognizable
by that body[.]
The State responds that the District Attorney General properly delegated the duty
of seeking a warrant to an assistant district attorney under Tennessee Code Annotated
section 8-7-103(7) as a necessary function of prosecuting cases. It is the duty of the
District Attorneys General to “[p]rosecute in the courts of the district all violations of the
state criminal statutes and perform all prosecutorial functions attendant thereto[.]”
T.C.A. § 8-7-103(1). A well-established function of the duty to prosecute is the authority
to seek a warrant, presentment, information, or indictment. In order to execute his duties,
however, the District Attorney General “shall have the authority to delegate the foregoing
duties and responsibilities to an assistant district attorney general.” T.C.A. § 8-7-103(7).
This court has held,
. . . [T]here is no requirement or mandate that the District Attorney
General must personally perform any of the duties relegated to him by
the Constitution or the Legislature. To the contrary, by implication and
directly, the statutes carry the connotation that an Assistant District
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Attorney General may act in the stead of the [District] Attorney General
in whatever capacity he is called upon to serve.
State v. Taylor, 653 S.W.2d 757, 760 (Tenn. Crim. App. 1983).
Defendant cites Tennessee Code Annotated section 39-17-1007, which provides,
“No process, except as otherwise provided, shall be issued for the violation of §§ 39-17-
1003 – 39-17-1005 unless it is issued upon the application of the district attorney general
of the district.” Defendant relies upon State v. Timothy Wade Davis, No. E2003-02163-
CCA-R3-CD, 2004 WL 2378251, at *7 (Tenn. Crim. App. Oct. 25, 2004), in which the
defendant challenged the validity of a search warrant under Tennessee Code Annotated
section 39-17-1007, and a panel of this court held that “process” includes seeking a
search warrant and therefore any “process” involving the offense of sexual exploitation of
a minor requires the involvement of the District Attorney General. Unlike the facts in
Timothy Wayne Davis, however, where it was “undisputed that the District Attorney
General‟s Office had no involvement in seeking or obtaining issuance of the search
warrant[,]” in this case, the application for the warrant to search Defendant‟s apartment
involved the District Attorney General‟s office as evidenced by the signature of Assistant
District Attorney Lund.
The trial court made the following findings relative to Defendant‟s assertion that
the search warrant was void due to the absence of the District Attorney General‟s
signature on its application:
Now, there hasn‟t been any evidence entered that Kimberly Lund is an
assistant attorney general or whatever, District Attorney General, all of
us know that she is. I can‟t recall the name of the case that we had to
look at a couple of years ago, on the functions of the Assistant District
Attorney Generals [sic], and that is that they can do anything the
[District] Attorney General can do. That is specifically what that case
says and [the] Legislature should have been aware of that decision when
this act was passed. So I do not believe the intent would have been to
limit that to one person and the staff – so I am going to deny the motion
on that ground.
We agree with the State and the trial court. Although, as Defendant asserts,
Tennessee Code Annotated section 39-17-1007 does not contain the same language
specifically approving the delegation of authority by the District Attorneys General to
Assistant District Attorneys General, the District Attorney General possesses the
authority to delegate his duties under Tennessee Code Annotated section 8-7-103(7).
Defendant is not entitled to relief on this issue.
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B. Affidavit contained false information
Defendant also contends that the search warrant is invalid because it was based on
an affidavit that contained false information about the affiant‟s training as a certified
computer forensic examiner and information later “proven to be false through evidence
presented at trial.” The State responds that the evidence does not preponderate against
the trial court‟s finding that the information contained in the affidavit was not made with
the intent to deceive the magistrate. Defendant also asserts that the warrant is invalid
because several statements contained in the affidavit were shown to be false by proof
adduced at trial, specifically, by the testimony of Detective Scott Levasseur.
A magistrate must rely on accurate information in making a probable cause
determination. State v. Norris, 47 S.W.3d 457, 469 n.4 (Tenn. Crim. App. 2000). An
affidavit containing false or misleading information may invalidate a search warrant.
State v. Little, 560 S.W.2d 403, 407 (Tenn. 1978); see Franks v. Delaware, 438 U.S. 154,
155-56 (1978) (holding that the fruits of a search shall be excluded when the affidavit
supporting the search warrant includes intentionally false statements or recklessly false
statements by the affiant that are necessary to the finding of probable cause). In Little,
the Tennessee Supreme Court concluded:
[T]here are two circumstances that authorize the impeachment of an
affidavit sufficient on its face, (1) a false statement made with intent to
deceive the Court, whether material or immaterial to the issue of
probable cause, and (2) a false statement, essential to the establishment
of probable cause, recklessly made. Recklessness may be established by
showing that a statement was false when made and that affiant did not
have reasonable grounds for believing it, at that time.
Little, 560 S.W.2d at 407. “In order to be „essential to the establishment of probable
cause,‟ the false statement must be the only basis for probable cause or if not, the other
bases, standing alone, must not be sufficient to establish probable cause.” Norris, 47
S.W.3d at 469 n.4 (citing State v. Tidmore, 604 S.W.2d 879, 882 (Tenn. Crim. App.
1980)).
Regarding Investigator Cereceres‟ statement that he was a certified computer
forensic examiner, the trial court accredited Investigator Cereceres‟ testimony and found
as follows:
I am going to address first the affidavit in support of the search warrant,
and that is paragraph two, where it says [the affiant] has completed the
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following training. It says I am a certified computer forensic examiner.
Then below that, there are four different courses that are listed for basic
forensic examiner training in Maitland, Florida. Investigation,
prosecution, online child exploitation crimes, investigative techniques
and one more in December. The testimony, the evidence that I have
heard that this was a boiler plate – those words were not even known by
the officer to really be there. It was purely inadvertence on his behalf
and not intended by any means to sway the issuing magistrate one way
or the other, so I am going to deny the motion on that ground.
As stated above, the trial court‟s credibility determinations at a suppression
hearing carry the weight of a jury verdict and are binding on the reviewing court unless
the evidence preponderates against them. State v. Bishop, 431 S.W.3d 22, 34-35 (Tenn.
2014). We conclude that the evidence does not preponderate against the trial court‟s
findings. Investigator Cereceres testified that the statement in the affidavit that he was a
certified computer forensic examiner was inaccurate, but that the information concerning
his training was accurate. He testified that he used a template affidavit containing
boilerplate language regarding the affiant‟s credentials, and he inadvertently left the
language in the affidavit. He testified that the inclusion of the inaccurate statement was
an oversight and not intended to be deceitful. Defendant presented no evidence to the
contrary. Additionally, we conclude that Investigator Cereceres‟ statement regarding his
certification was not essential to the establishment of probable cause. Accordingly,
Defendant is not entitled to relief on this issue.
Defendant also asserts that statements contained in the affidavit were shown to be
false by the proof presented at trial. Specifically, Defendant asserts that the affidavit
contained information that Investigator Cereceres conducted an online investigation on
April 12, 2011, and using a file-sharing program, he discovered that images of child
pornography had been downloaded to a computer with an IP address located at
Defendant‟s residence. Defendant argues that the affidavit falsely states that Investigator
Cereceres used the peer-to-peer software “Limewire,” but the evidence at trial established
that Defendant‟s computer used the peer-to-peer software “Frostwire.” Upon review of
the affidavit in support of the search warrant, the section entitled “Specific Probable
Cause,” which states the facts particular to this case, does not make reference to
Limewire or Frostwire. The section of the affidavit in which Investigator Cereceres
references Limewire is entitled “Background of Investigation,” and that section makes
general statements about peer-to-peer software. In that section of the affidavit, the term
“Limewire” is used in the following instances:
1) “Limewire, one type of P2P software, sets up its searches by keywords.”
14
2) “For example, a Limewire user downloading an image file may actually
receive parts of the image from multiple computers. The advantage of this is that
it speeds up the time it takes to download the file. Often, however, a Limewire
user downloading an image file receives the entire image from one computer.”
3) “The computer running the file sharing application, in this some [sic] cases
„Limewire,‟ has an IP address assigned to it while it is on the internet.”
Our reading of the affidavit does not support Defendant‟s contention that
Investigator Cereceres‟ references to Limewire, as opposed to Frostwire, were specific to
Defendant, but rather a general explanation of peer-to-peer software.
Defendant also challenges the accuracy of the date stated in the affidavit. The
affidavit states that Investigator Cereceres‟ investigation was conducted on April 12,
2011, and Detective Levasseur‟s report states that Defendant downloaded peer-to-peer
software on April 27, 2011. Defendant argues that the date on which the peer-to-peer
exchange occurred is crucial to establish a nexus between the alleged criminal activity
and the property to be searched.
“To establish probable cause, the affidavit must show a nexus among the criminal
activity, the place to be searched, and the items to be seized.” Saine, 297 S.W.3d at 206
(citing State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002); Smith, 868 S.W.2d at 572). In
reviewing nexus, reviewing courts should “„consider whether the criminal activity under
investigation was an isolated event or a protracted pattern of conduct[,] . . . the nature of
the property sought, the normal inferences as to where a criminal would hide the
evidence, and the perpetrator‟s opportunity to dispose of incriminating evidence.‟”
Saine, 297 S.W.3d at 206 (quoting Reid, 91 S.W.3d at 275).
We conclude that a nexus existed based on the statements made in the affidavit.
The affidavit identifies an IP address “owned and controlled by Charter
Communications” and the subscriber was identified as Defendant. There is no
explanation in the record for why the date of Investigator Cereceres‟ investigation, as
stated in the affidavit, is earlier than the date on which Detective Levasseur‟s report states
that Defendant downloaded the peer-to-peer software. Because the discrepancy did not
arise until trial, there was no ruling by the trial court on this issue at the hearing on
Defendant‟s motions to suppress. However, we have already concluded that the evidence
does not preponderate against the trial court‟s credibility determination regarding
Investigator Cereceres‟ statement of his qualifications. Similarly, we do not believe that
Investigator Cereceres intended to deceive the court, or that the statement was recklessly
made.
15
C. Staleness of the affidavit
Defendant contends that the affidavit filed in support of the search warrant was
based on a one-time observation of criminal conduct in April, 2011, and therefore was
too stale to allow the magistrate to find probable cause that the evidence sought would be
located at Defendant‟s apartment at the time the warrant was executed on July 11, 2011.
A determination regarding staleness must be made on a case-by-case basis.
Norris, 47 S.W.3d at 470 (citing Meeks, 876 S.W.2d 121, 124 (Tenn. Crim. App. 1993)).
When the illegal activity described is ongoing or continuous, courts have generally
concluded that the affidavit does not become stale with the passage of time. State v.
Hayes, 337 S.W.3d 235, 259 (Tenn. Crim. App. 2010) (citing State v. Stepherson, 15
S.W.3d 898, 903 (Tenn. Crim. App. 1999)); State v. Thomas, 818 S.W.2d 350, 357
(Tenn. Crim. App. 1991)). Unlike evidence that can be easily consumed or destroyed,
“the nature of child pornography is not fleeting or isolated. . . . Rather the collection and
sharing of child pornography is of a continuous and ongoing nature and typically remains
in possession of the user for an extended period of time.” State v. Robert D. Ewing and
Anthony T. Ewing, No. E2013-01587-CCA-R3-CD, 2014 WL 2609463, at *7 (Tenn.
Crim. App., June 11, 2014) (holding that a four-month lapse between the information
contained in the affidavit and the execution of the search warrant was not stale); see also
State v. John Jason Burda, No. M2006-0253-CCA-R3-CD, 2009 WL 1181349, at *4
(Tenn. Crim. App., May 4, 2009).
We conclude that the information contained in the affidavit was not too stale to
support a finding of probable cause. Investigator Cereceres discovered on April 12,
2011, that the person using a computer associated with a particular IP address was in
possession of and sharing files depicting images of sexual exploitation of minors.
Through a subpoena, Investigator Cereceres learned that the IP address was connected to
an account under Defendant‟s name and address. Approximately three months elapsed
between Investigator Cereceres‟ discovery and his execution of the search warrant. The
affidavit stated that those known to engage in the collecting of child pornography often
use a computer to accomplish this. The affidavit also stated that people who obtain child
pornography “tend to maintain their collections at a secure private location for long
periods of time[.]” Given the nature of the evidence sought, it was reasonable to
conclude that the images discovered by Investigator Cereceres in April, 2011, remained
on Defendant‟s computer at the time the search warrant was executed in July, 2011.
Defendant is not entitled to relief on this issue.
16
Admissibility of Defendant’s statement
Defendant contends that his statement to Investigator Cereceres should have been
suppressed because 1) it was “fruit of the poisonous tree” obtained as a result of the
execution of an invalid search warrant, and 2) the statement was obtained in violation of
Defendant‟s Miranda rights. The State responds that Defendant was not in custody for
the purposes of Miranda at the time of questioning by Investigator Cereceres.
Under the “fruit of the poisonous tree” doctrine, evidence that is obtained through
exploitation of an unlawful search or seizure must be suppressed. See Wong Sun v. U.S.,
371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). We have concluded that the
trial court did not err in denying Defendant‟s motions to suppress the search warrant.
Therefore, Defendant‟s subsequent statement and evidence from the search warrants were
not “fruit of the poisonous tree.” We will review whether Defendant‟s statement was
obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
Both the federal and state constitutions protect a defendant against compelled self-
incrimination. U.S. Const. amend. V; Tenn. Const. art. I § 9; see, e.g., State v. Sawyer,
156 S.W.3d 531, 534 (Tenn. 2005). In Miranda v. Arizona, the United States Supreme
Court adopted broad procedural safeguards designed to protect an individual‟s right
against self-incrimination. Miranda, 384 U.S. at 479. The Court held that the
exclusionary rule requires the suppression of statements made by a defendant during
custodial interrogation unless the police have first advised the defendant “that he has the
right to remain silent, that anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he cannot afford an attorney one
will be appointed for him prior to any questioning if he so desires.” Id. at 479.
Defendant contends that the trial court declined to address the issue of whether
Defendant was in custody for purposes of Miranda, but that its findings “would appear to
bear on the question of whether [Defendant] was in fact in custody.” The State asserts
that the trial court‟s comments indicate that the court concluded Defendant was not in
custody. The trial court‟s findings are as follows:
The evidence that I have heard on this motion is that – of course,
very contradictory. In looking at Exhibit 5 [the Admonition and Waiver
document], the testimony of [Defendant] too, he would have probably
arrived back at his apartment around 5:20, 5:25, pretty quick gotten the
rights advisement by 5:29, certainly not that statement, could not have
been done in that time frame so I believe that he was given his Miranda
[w]arnings when he signed that at 5:29 on the back of Exhibit Number 5.
17
He was, of course, in my findings, given those rights to him,
whether or not he was in custody, is something entirely different. I am
not going to reach that for this purpose. I don‟t have to. He is in his
own bedroom and the testimony that I heard, he was called by his
roommate, hey the police are here with a search warrant. There is no
mention that the police wanted him to come back to his apartment, but as
he said, he rapidly got back to see what was going on.
When he came into the apartment, then the rest of this occurred.
So – I believe the statement is admissible and I am not going to – I am
going to deny the motion to suppress.
Defendant asserts that the following undisputed testimony of Officer Cereceres on
cross-examination preponderates against the trial court‟s finding that Investigator
Cereceres did not request Defendant‟s presence at the apartment during the execution of
the search warrant:
Q. [Y]ou could have executed that search warrant regardless of
whether he was present or not present, is that a fair statement?
A. That‟s right.
Q. And no need for him to be there?
A. No. I like to have everyone there, whose ever room that is, I would
like them to be there during execution to obtain statements.
Q. Who said I would like him to be there?
A. I, myself, did.
Q. You communicated that to [Defendant]‟s – one or both of
[Defendant]‟s roommates?
A. Yes, sir.
....
18
Q. Okay – and when [Defendant] arrived back there following your
request that he be contacted – well, let me back up, is it fair to say that
you requested the roommates to contact him.
A. Yes, sir.
The State acknowledges that Investigator Cereceres requested Defendant‟s
presence, but the State argues that Cereceres “did not command him to return[.]”
Defendant argues that this undisputed testimony by Investigator Cereceres preponderates
against “the only findings recited by the trial court on the question of whether
[Defendant] was in custody[.]” We agree with Defendant that the testimony by
Investigator Cereceres at the suppression hearing is inconsistent with the trial court‟s
finding that “[t]here is no mention that the police wanted him to come back to his
apartment.” Nevertheless, we disagree with Defendant‟s contention that Investigator
Cereceres‟ request that Defendant be present during the execution of the search warrant
established that Defendant was in custody at the time of questioning. The evidence
showed that Investigator Cereceres did not call Defendant and order him to return to the
apartment.
Investigator Cereceres testified Defendant‟s presence was not required, but that he
preferred to have all residents present during the execution of a search warrant. When
Defendant arrived at the apartment, Investigator Cereceres identified himself, explained
his purpose for being there, and gave Defendant a copy of the search warrant. He did not
place Defendant under arrest when he arrived. Investigator Cereceres denied that he kept
Defendant from talking to his roommates, but he acknowledged that the roommates were
writing statements with another officer in another room. Investigator Cereceres testified
that Defendant “came back to the residence very compliant, [and he] saw no reason to
take him out of his house and say you are going to the station.” He testified, “I wanted to
have [Defendant] in his own house, where he was comfortable to be at rather than taking
him to the station if he was more than willing to speak in his own residence.”
Investigator Cereceres testified that Defendant did not attempt to leave or end the
interview.
Investigator Cereceres asked Defendant if he had a computer, and Defendant
responded that his computer was in his bedroom. Investigator Cereceres followed
Defendant into his bedroom, and they sat on Defendant‟s bed. Investigator Cereceres
then told Defendant that he had questions for Defendant. Investigator Cereceres testified
that he advised Defendant of his rights and that Defendant signed the waiver form prior
to providing his written answers to Investigator Cereceres‟ questions on the opposite side
of the waiver form. Defendant testified that Investigator Cereceres instructed him to sign
the waiver form after he wrote his answers as verification that his answers were accurate
19
and true. Defendant testified that he did not read the document before he signed it, and
he did not recall being advised of his constitutional rights.
In ruling on Defendant‟s motion to suppress his statement, the trial court
recognized that there was a conflict in testimony regarding whether Defendant was
advised of his Miranda rights, and the court resolved that conflict in favor of the State,
finding that Defendant was advised of his rights prior to providing his written answers to
Officer Cereceres‟ questions. We conclude that the evidence does not preponderate
against this finding by the trial court. Since we conclude that Defendant was properly
advised of his Miranda rights and signed the waiver, there is no need to resolve the
question of whether he was in custody. Moreover, although the trial court did not make a
finding as to whether Defendant‟s waiver was voluntary, we conclude that the evidence
supports such a finding.
Defendant argues that he was subjected to “an un-warned custodial interrogation”
before Investigator Cereceres advised Defendant of his rights when he asked Defendant if
he had a computer and whether peer-to-peer software was installed on his computer.
Defendant argues that these questions were central to the State‟s case because when
Investigator Cereceres arrived at the apartment to execute the search warrant, he “was
looking for someone residing at the home who was willing to admit to having
downloaded a peer-to-peer software program[.]” Defendant asserts that after Defendant
answered affirmatively that he had downloaded peer-to-peer software on his computer,
Investigator Cereceres gave Miranda warnings and Defendant gave his written responses
to Investigator Cereceres‟ questions. Investigator Cereceres testified, however, that he
asked Defendant about peer-to-peer software after Defendant gave his statement, and
thus, after Defendant had waived his Miranda rights. Investigator Cereceres testified that
the information available to him and provided in the affidavit for a search warrant was
that the IP address for the computer was linked to an account in Defendant‟s name. He
testified that he conducted a preliminary search on the computers belonging to
Defendant‟s roommates and found no peer-to-peer software installed. The roommates
had also given statements “adamantly denying” that they did not download peer-to-peer
software. We conclude, therefore, that any answers Defendant provided before waiving
his rights, if admitted in error, was harmless error.
Sufficiency of the evidence
Defendant contends that the evidence was insufficient to support his convictions.
Specifically, Defendant asserts that the State failed to prove that he “knowingly
possessed” images depicting the sexual exploitation of minors. Defendant argues that
there was no proof discerning which of the more than 4,000 images shown to the jury
were the “more than 700 live files discovered by the forensic exam” to support the
20
convictions. He also argues that there was no proof which of “3,300 or more „deleted‟
images found on his computer could possibly have been „live‟ on the system during the
period of May, 2011, through July, 2011.” The State responds that the evidence is
sufficient to support the jury‟s conclusion that Defendant knowingly possessed the
images during the time period charged.
When a defendant challenges the sufficiency of the evidence, this court is obliged
to review that claim according to certain well-settled principles. The relevant question
the reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.
App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury‟s verdict replaces
the presumption of innocence with one of guilt; therefore, the burden is shifted onto the
defendant to show that the evidence introduced at trial was insufficient to support such a
verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The prosecution is entitled to
the “strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom.” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.
2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). It is not the role of this
court to reweigh or reevaluate the evidence, nor to substitute our own inferences for those
drawn from the evidence by the trier of fact. Reid, 91 S.W.3d at 277. Questions
concerning the “„credibility of the witnesses, the weight to be given their testimony, and
the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of
fact.‟” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting State v. Campbell,
245 S.W.3d 331, 335 (Tenn. 2008)). “„A guilty verdict by the jury, approved by the trial
court, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the prosecution‟s theory.‟” Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997)). This standard of review applies whether the conviction
is based upon direct evidence, circumstantial evidence, or a combination of the two.
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009).
Defendant was charged with 39 counts of sexual exploitation of a minor, with one
count charging possession of 50 or more videos depicting minors engaged in sexual
activity or simulated sexual activity, and 38 counts charging possession of greater than
100 images depicting minors engaged in actual or simulated activity. Defendant was
convicted of possessing greater than 100 images in four counts, possessing greater than
50 but fewer than 100 images in eleven counts, and possessing fewer than 50 images in
24 counts.
Tennessee Code Annotated section 39-17-1003 defines the offense of sexual
exploitation of a minor and provides, “It is unlawful for any person to knowingly possess
21
material that includes a minor engaged in . . . [s]exual activity; or [s]imulated sexual
activity that is patently offensive.” T.C.A. § 39-17-1003(a).
The indictment alleged in all counts that Defendant knowingly possessed videos
and images containing child pornography between May, 2011, and July, 2011.
Defendant argues that Detective Levassuer‟s testimony regarding the quantity and type of
files downloaded, the location of the files on Defendant‟s computer, and the distinction
between “live” files and “deleted” files failed to establish that Defendant knowingly
possessed any specific number of files during the charged time period.
Viewing the evidence in the light most favorable to the State, the evidence
established that Detective Levasseur discovered on Defendant‟s computer 61 videos and
more than 4,000 images depicting children engaged in sexual activity. Detective
Levasseur identified the images the jury was to consider in determining its verdict in
counts 2 through 39, which charged Defendant with possessing image files. Count 1
charged Defendant with possession of the video files. The sheer number of images and
videos, as well as Detective Levasseur‟s testimony that “all of the child pornography files
came from frostwire application and from Yahoo instant messenger” indicates that
download activity was intentional and not accidental. Detective Levasseur testified that
“a number of child pornography files” were downloaded to Defendant‟s computer on
April 29, 2011; May 4, 2011; May 15, 2011; June 7, 2011; June 8, 2011; June 15, 2011;
June 16, 2011; June 18-19, 2011; July 5, 2011; July 11, 2011. He also testified that
“hundreds of child pornography and child erotica were deleted” on July 10, 2011.
Detective Levasseur did not testify that the “deleted” files could not be accessed by a user
of the computer, as Defendant asserts in his brief. He testified that deleted files “could be
in the recycle bin or be in unallocated space or could be a system file that you don‟t
really have access to.” He also noted that these “deleted” files must have been “live” on
the computer before they could make their way into the unallocated space.
Defendant attempts to distinguish this case from State v. Aguilar, 437 S.W.3d 889
(Tenn. Crim. App. 2013), in which this court upheld the sufficiency of the convicting
evidence, but we fail to see the distinction. In that case, the same forensic examiner,
Scott Levasseur, testified that he discovered 167 images and six videos depicting children
engaged in sexual activity on the defendant‟s computer. Detective Levasseur “testified
that the vast majority of the images were found in the unallocated space on defendant‟s
computer, indicating that the files had been deleted.” Id. at 903. In Aguilar, we
concluded “[t]hat the defendant could not have accessed the files in the unallocated space
at the time of Detective Levasseur‟s examination did not negate the fact that the presence
of the files in that space indicated that they had been manually and individually
downloaded onto the defendant‟s computer and that they were, within the time frame
provided in the indictment, „live on the system.‟” Id.
22
We conclude that the evidence supports the jury‟s finding that Defendant
knowingly possessed the materials during the dates charged in the indictment. Defendant
is not entitled to relief on this issue.
Hearsay testimony
Defendant contends that the trial court erred by admitting hearsay testimony.
Defendant also argues that the admission of the statement violated his right to
confrontation pursuant to the federal and state constitutions.
During cross-examination, defense counsel asked Investigator Cereceres whether
anyone observed Defendant download child pornography onto his computer. Investigator
Cereceres agreed with defense counsel that “there is not going to be a single witness
come in here and say that they observed [Defendant] physically downloading any of this
stuff[.]” On redirect examination by the State, Investigator Cereceres was asked about
whether any other individuals present at Defendant‟s apartment during the execution of
the search warrant were asked if they had seen Defendant looking at child pornography
on his computer. Defense counsel objected on the grounds of hearsay, and the court
overruled the objection. Investigator Cereceres then testified, “The only thing that was
relayed by one of the parties says – pardon me, there will be an expletive relayed on this,
when one of the parties spoke, he stated [„]I wouldn‟t do that, that‟s got to be f******
Doria.[‟]” (Emphasis added). On recross examination, defense counsel asked
Investigator Cereceres if he recalled who made that statement, and he did not recall.
Defendant argues that the testimony was inadmissible hearsay. Hearsay is defined
as “a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). In general, hearsay statements are inadmissible. Tenn. R. Evid. 802. Whether a
statement constitutes hearsay and whether it falls under one of the exceptions to the
hearsay rule “are questions of law subject to a de novo review.” Kendrick v. State, 454
S.W.3d 450, 479 (Tenn. 2015).
In overruling Defendant‟s objection, the trial court did not give a reason for its
ruling. In its brief on appeal, the State does not assert either that the statement was not
offered for the truth of the matter asserted or that the statement falls within an exception
to the hearsay rule. Without providing any citation to applicable case law, the State
submits only that if the testimony was admitted in error, it was harmless error because the
declarant, referred to as “he” (by process of elimination, either Mr. Nacin or Mr. Porter)
testified at trial; therefore, Defendant was not deprived his right to confrontation because
he had the opportunity to cross-examine the declarant about the statement.
23
In a criminal trial, the defendant has a right “to be confronted with the witnesses
against him.” U.S. Const. amend. VI. Similarly, the Tennessee Constitution provides
“[t]hat in all criminal prosecutions, the accused hath the right . . . to meet the witnesses
face to face.” Tenn. Const. art. I, § 9. In deciding issues under the Confrontation
Clause in the Tennessee Constitution, we apply the same analysis used to evaluate claims
based on the Confrontation Clause of the Sixth Amendment to the United States
Constitution. State v. Hutchison, ___ S.W.3d ___, 2016 WL 531266 (Tenn. 2015).
“[T]he threshold question in every case where the Confrontation Clause is relied
upon as a bar to the admission of an out-of-court statement is whether the challenged
statement is testimonial.” State v. Dotson, 450 S.W.3d 1 (Tenn. 2014) (citing State v.
Cannon, 254 S.W.3d 287, 301 (Tenn. 2008)); see also Crawford v. Washington, 541 U.S.
at 51-52, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The Confrontation Clause applies
only to “testimonial statements” and is not implicated where the evidence in question is
nontestimonial hearsay. Davis v. Washington, 547 U.S. 813, 823-24, 126 S. Ct. 2266,
165 L. Ed. 2d 224 (2006); see Dotson, 450 S.W.3d at 63.
In State v. Maclin, 183 S.W.3d 335 (Tenn. 2006), the Tennessee Supreme Court
examined the admissibility of both testimonial and nontestimonial statements post-
Crawford. In Maclin, the court determined:
When the prosecution seeks to introduce a declarant‟s out-of-court
statement, and a defendant raises a Confrontation Clause objection, the
initial determination under Crawford is whether the statement is
testimonial or nontestimonial. Crawford, 541 U.S. at 68. If the
statement is testimonial, then the trial court must determine whether the
declarant is available or unavailable to testify. If the declarant is
available, then there is no confrontation problem: “[t]he Clause does
not bar admission of a statement so long as the declarant is present at
trial to defend or explain it.” Id. at 59 n. 9 (citing California v. Green,
399 U.S. 149, 162, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970)).
Id. at 351 (emphasis added).
Defendant contends that the statement at issue is testimonial in nature, and we
agree with Defendant. Because the statement was testimonial, the state and federal
constitutions permitted the introduction of the statement only if the declarant was
unavailable at trial and Defendant had had a prior opportunity to cross-examine. State v.
Lewis, 235 S.W.3d 136, 142 (Tenn. 2007) (citing Crawford, 541 U.S. at 68, 124 S. Ct.
1354)). The State argues that the record shows that the declarant was, in fact, available at
24
trial. Although Investigator Cereceres could not identify the declarant, he indicated that
the declarant was male by using the pronoun “he,” excluding Andrew Porter‟s girlfriend
as the possible declarant, and both of Defendant‟s male roommates were called to testify
following Investigator Cereceres‟ testimony. Therefore, the State asserts, Defendant had
the opportunity to confront the declarant of the statement. Both men denied witnessing
Defendant download or view child pornography on his computer.
We agree with the State‟s assessment. Defendant acknowledges that two of the
three parties present at the apartment during the execution of the search warrant were
called as witnesses at trial. The State is correct that the third person was Mr. Porter‟s
girlfriend, and Investigator Cereceres identified the declarant as a male. Therefore, the
declarant was available at trial and subject to cross-examination. Consequently, the
admission of the statement did not violate the Confrontation Clause. Defendant is not
entitled to relief on this issue.
Relevant evidence
Defendant contends that the trial court erred by allowing the State to introduce a
report prepared by Detective Levasseur referencing a video file of “a dog having sex with
an adult female,” and 18 video files depicting “beastiality.” Prior to trial, Defendant filed
a motion in limine under Tennessee Rules of Evidence 401, 403, and 404 seeking to
exclude the State from introducing evidence suggesting Defendant had visited the
website www.beast-dating.com or that he possessed images of humans engaging in
sexual activity or simulated sexual activity with animals. The trial court granted
Defendant‟s motion. At trial, the report was admitted without redactions to all references
of beastiality. Specifically, the 27-page report included the following two references to
beastiality:
1. “There are 33 pornography video files in the recycle bin, 31 of them
are child pornography [and] 1 of a dog having sex with an adult female
and one of a rape of an Asian female by several people.”
2. “There are a total of 66 pornographic video files on the drive that
have not been deleted, 34 of these are child pornography [and] of the
remaining 32, 18 of them are beastiality.”
The State responds that any error in not redacting those parts of Detective
Levasseur‟s report referencing beastiality is harmless in light of Defendant‟s statement
admitting to having used the search term “to find role playing material.” We note that
Defendant failed to mitigate the error by not renewing the objection at trial to the
contents of the report or any references to beastiality. Nevertheless, we agree with the
25
State‟s assertion that Defendant was not prejudiced by the trial court‟s error in admitting
the evidence.
Because it was irrelevant, the trial court should have redacted the mentions of
bestiality from the report shown to the jury, but its failure to do so was harmless error
under Tennessee Rule of Appellate Procedure 36(b) in light of the record as a whole.
Defendant admitted in his statement to Investigator Cereceres and testified at trial that he
used the search term “beastiality” to “find role playing material.” Detective Levassuer
made no mention of beastiality in his trial testimony. Based on the record before us, we
cannot say that any error in admitting the unredacted portions of the report “more
probably than not affected the judgment.” Tenn. R. App. P. 36(b). Defendant is not
entitled to relief on this issue.
Defendant also asserts that the trial court erred by permitting the State to use a
Powerpoint presentation prepared by Detective Levasseur during his direct examination.
Defendant argues that the content was irrelevant and prejudicial. The State fails to
respond altogether to this issue raised by Defendant.
At trial, defense counsel objected to the State‟s use of a Powerpoint presentation
prepared by Detective Levasseur. Defense counsel specifically objected to the content of
the presentation as irrelevant and objected to the State‟s use of the presentation during its
direct examination of Detective Levasseur because “if the evidence is presented in this
fashion, then that robs defense counsel of the ability to hear something beforehand to
determine whether or not [] there is a question that would elicit relevant or irrelevant
evidence or admissible evidence to make a timely objection[.]” The trial court ruled that
the Powerpoint could be used as long as it was presented one slide at a time and not
shown to the jury until a question was first posed to Detective Levasseur regarding the
information on the following slide. Defendant argues that the State failed to follow the
trial court‟s instructions, and instead presented each slide to the jury while
simultaneously asking Detective Levasseur what information was contained on the slide.
Defendant argues that he was prejudiced by the State‟s use of the Powerpoint, because
the Powerpoint was not used as a tool for assisting the jury in understanding Detective
Levasseur‟s testimony, and that the slides contained “irrelevant but inflammatory
references” to instant chatting messages of a sexual nature between Defendant and other
adult users.
Evidence is considered relevant if it has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. However, relevant
evidence “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R.
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Evid. 403. Prejudicial evidence is not excluded as a matter of law. State v. Carruthers,
35 S.W.3d 516, 577 (Tenn. 2000) (citing State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim.
App. 1993)). The term “undue prejudice” has been defined as “„[a]n undue tendency to
suggest decision on an improper basis, commonly, though not necessarily, an emotional
one.‟” State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978) (quoting Fed. R. Evid. 403,
Advisory Comm‟n Notes). We review a trial court‟s decision regarding the admissibility
of evidence under an abuse of discretion standard. State v. Banks, 271 S.W.3d 90, 116
(Tenn. 2008).
Defendant objected at trial to one slide before it was presented to the jury on the
grounds that it was an improper opinion. The slide states, “[Defendant]‟s statement to
police was that he accidentally downloaded child sex abuse images of mothers with their
kids. . . . The Yahoo Chat files recovered prove he was actively searching for requesting
and downloading these files, and then commenting on how he enjoyed them. More than
400 Child Porn images [were] found that were received from Yahoo photo share[.]” The
trial court overruled the objection and found that Detective Levasseur had already
testified to the content of the statement contained on the slide. The testimony preceding
the presentation of that slide regarded Detective Levasseur‟s findings that Defendant used
fictitious profiles, including “tits_hottie” and “Jennifer Relsarro” to locate and download
child pornography files.
Having reviewed the record, we conclude that neither Detective Levasseur‟s
testimony, nor the content of the Powerpoint slides, was irrelevant. Evidence of the
creation of false user profiles was relevant to establish Defendant‟s identity as the person
who downloaded images of minors engaged in sexual activity. Evidence of the chat files
were relevant to establish that Defendant was searching for illegal material, contrary to
his assertion in his statement to Investigator Cereceres that he downloaded the images by
accident. Defendant is not entitled to relief on this issue.
Double jeopardy
Defendant contends that his convictions violate double jeopardy. Specifically,
Defendant asserts that he may have been convicted of possessing multiple duplicated
images created by only one intentional or knowing act because the State failed to specify
the names or dates of download or deletion of the files shown to the jury, and the jury
failed to specify which images for which Defendant was found guilty of possessing,
leading to the possibility that Defendant could be prosecuted again for the same acts for
which he had already been convicted.
The double jeopardy clause of the Fifth Amendment to the United States
Constitution provides that no person shall “be subject for the same offense to be twice put
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in jeopardy of life or limb. . . .” Article 1, section 10 of the Tennessee Constitution
contains a similar provision. The three fundamental principles underlying double
jeopardy provide protections against (1) a second prosecution after an acquittal; (2) a
second prosecution after conviction; and (3) multiple punishments for the same offense.
State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012). Defendant‟s contentions involve
the second and third categories.
As noted above, Defendant asserts that the State duplicated images in different
counts of the indictment “raising the possibility if not likelihood that [Defendant] was
convicted for possessing multiple images created at the same time and as a result of the
same intentional action proscribed by the statute under which Defendant was convicted.”
Defendant argues that the jury failed to specify the images supporting his convictions,
and nothing prevents the State from prosecuting him a second time for possessing the
same image files.
“Multiplicity concerns the division of conduct into discrete offenses, creating
several offenses out of a single offense.” State v. Phillips, 924 S.W.2d 662, 665
(Tenn.1996). Of primary importance when considering a claim of multiplicity is
legislative intent regarding cumulative punishment. Watkins, 362 S.W.3d at 542
(“Legislative intent with respect to punishment remains the focus of the analysis when a
defendant in a single prosecution relies upon the Double Jeopardy Clause‟s protection
against multiple punishments.”). Noting that “[t]he Double Jeopardy Clause does not
limit the legislative authority to define criminal offenses and to prescribe punishments,”
the supreme court observed that “in single prosecution cases, the double jeopardy
prohibition against multiple punishments functions to prevent prosecutors and courts
from exceeding the punishment legislatively authorized.” Id. (citation omitted). Our
supreme court has observed that the legislature sets the unit of prosecution and, in doing
so, establishes “the minimum unit of conduct that may be prosecuted as a separate
offense.” Id. at 554.
In this case, Defendant was convicted of violating Tennessee Code Annotated
section 39-17-1003. Under a prior version of section 39-17-1003, courts of this state
have found multiple convictions arising under this criminal statute to be multiplicitous.
For example, in State v. Pickett, 211 S.W.3d 696 (Tenn. 2007), the defendant was
convicted of eleven counts of sexual exploitation of a minor based upon eleven images
that were found on his computer depicting child pornography. 211 S.W.3d at 700. The
Tennessee Supreme Court held that the eleven convictions were multiplicitous and that
the evidence only supported one conviction. Id. at 706. The supreme court noted in this
regard that the State's proof did not “attempt to distinguish the offenses by showing that
the crimes were separated by time or location or by otherwise demonstrating that [the
defendant] formed a new intent as to each image.” Id.
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In 2005, the legislature amended section 39-17-1003 by adding the following
provision, “Where the number of materials possessed is greater than fifty (50), the person
may be charged in a single count to enhance the class of offense under subsection (d).”
T.C.A. § 39-17-1003(b). The amendment gives the State discretion to aggregate the
offenses. See State v. David Wayne Phillips, No. M2011-01920-CCA-R3-CD, 2012 WL
2870597 (Tenn. Crim. App., Nashville, July 13, 2012); State v. Walter Jude Dec, No.
M2009-01141-CCA-R3-CD, 2010 WL 2977875 (Tenn. Crim. App., Nashville, July 30,
2010). This court addressed the issue in State v. Aguilar, 437 S.W.3d 889 (Tenn. Crim.
App. 2013), in which this court held that by amending section 39-17-1003, the legislature
intended to permit “multiple aggregation of offenses.” Id. at 909. Because the
Defendant‟s convictions are permitted by the statute, they do not violate double jeopardy.
Defendant is not entitled to relief on this issue.
Sentencing
Defendant contends that the trial court abused its discretion by imposing partial
consecutive sentencing because the trial court considered offenses for which Defendant
was being sentenced as evidence of Defendant‟s “extensive criminal activity” under
Tennessee Code Annotated section 40-35-115(b)(2). The State responds that the trial
court‟s order of partial consecutive sentencing was supported by the record and consistent
with the purposes and principles of sentencing.
When reviewing a trial court‟s imposition of consecutive sentences, “the
presumption of reasonableness applies,” which gives “deference to the trial court‟s
exercise of its discretionary authority to impose consecutive sentences if it has provided
reasons on the record establishing at least one of the seven grounds listed in Tennessee
Code Annotated section 40-35-115(b).” State v. Pollard, 432 S.W.3d 851, 861 (Tenn.
2013). “Any one of [the] grounds [listed in section 40-35-115(b)] is a sufficient basis for
the imposition of consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d
735 (Tenn. 2013)).
Here, the trial court concluded that the Defendant was an offender whose record of
criminal activity was extensive. See T.C.A. § 40-35-115(b)(2). The trial court based its
finding on offenses for which Defendant was being sentenced. The trial court stated,
I guess most of the time that I spent thinking about this case is under 40-
35-115. He has now become an offender whose record of criminal
active [sic] is extensive. He has an extensive number of convictions,
most of which occurred at – or – or one – say two or more occasions.
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In State v. Cummings, 868 S.W.2d 661, 667 (Tenn. Crim. App. 1992), this court
affirmed the trial court‟s imposition of consecutive sentences based on a defendant‟s
current offenses as a record of extensive criminal activity. Like Defendant, the defendant
in Cummings had no criminal history outside of his convictions in the case for which he
was being sentenced. Defendant attempts to distinguish Cummings on the basis that the
defendant in Cummings was charged with prescription fraud, and the State did not have
the charging discretion authorized by Tennessee Code Annotated section 39-17-1003 as it
did in this case. Defendant argues that because the State had discretion whether to charge
Defendant separately for each image, it should not be permitted to rely on multiple
convictions for the imposition of consecutive sentencing. Defendant warns of the
“danger” in applying the Cummings holding to defendants charged under section 39-17-
1003 and asks this court to “modify[ ] or expand[ ] on the current discretionary
interpretation of the „may‟ clause of § 39-17-1003 . . . [by] prohibiting enhancement of a
sentence or consecutive sentencing based on the number of images included in any or all
counts on which a defendant is convicted, and permitting the courts to „merge‟ the
convictions into one solely for the purpose of determining prior criminal history for
enhancement and consecutive sentencing purposes.” We decline to do so. We are bound
by the precedence of our supreme court, which has held that consecutive sentencing is
within the discretionary authority of the trial courts. Pollard, 432 S.W.3d 851, 861
(Tenn. 2013). Defendant is not entitled to relief on this issue.
CONCLUSION
For the foregoing reasons, the judgments of the trial court are affirmed.
____________________________________________
THOMAS T. WOODALL, PRESIDING JUDGE
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