State of Tennessee v. Timothy Curtis Greenman

12/27/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Brief October 27, 2022, at Knoxville
STATE OF TENNESSEE v. TIMOTHY CURTIS GREENMAN
Appeal from the Circuit Court for Lincoln County
No. 20-CR-22 Forest A. Durard, Jr., Judge
No. M2021-01061-CCA-R3-CD
A Lincoln County jury convicted the Defendant, Timothy Curtis Greenman, of three counts
of sexual exploitation of a minor more than 100 images and one count of sexual
exploitation of a minor more than fifty images, and the trial court sentenced him to a total
effective sentence of thirty years of incarceration. On appeal, the Defendant contends that:
(1) the trial court erred when it denied his motion to suppress; (2) the evidence is
insufficient to sustain his convictions; (3) the trial court erred when it denied his motion
for new trial; and (4) the trial court erred when it sentenced him. After review, we affirm
the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JAMES
CURWOOD WITT, JR., P.J., and CAMILLE R. MCMULLEN, J., joined.
Jonathan C. Brown, Fayetteville, Tennessee, for the appellant, Timothy Curtis Greenman.
Jonathan Skrmetti, Attorney General and Reporter; Richard D. Douglas, Senior Assistant
Attorney General; Robert J. Carter, District Attorney General; and Amber Sandoval and
Jeff Ridner, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
I. Background and Facts
This case arises from a search of the Defendant’s cell phone, pursuant to a search
warrant, in an unrelated investigation concerning the sale of narcotics. During the search,
law enforcement found pornographic images of children on the cell phone. Law
enforcement sought the Defendant’s permission to access a locked image gallery on his
cell phone, which he granted, and they found a large number of pornographic images of
children therein. For these offenses, a Lincoln County grand jury indicted the Defendant
for four counts of sexual exploitation of a minor where the number of images exceeds 100.
A. Motion to Suppress
Prior to trial, the Defendant filed a motion to suppress his statement to law
enforcement and the evidence extracted from his phone. As background, the Defendant
detailed in his motion that, as a result of a December 4, 2019 incident, he was arrested on
December 6, 2019, and later charged with aggravated assault, being a felon in possession
of a weapon, and several narcotics offenses. Law enforcement took possession of his cell
phone at the time of his arrest. The Defendant was interviewed on December 7 as a result
of his arrest, and he invoked his right to remain silent at the interview. On December 10,
law enforcement officers obtained a search warrant for the Defendant’s cell phone, which
was identified in the search warrant by its “IMEI” number. A forensic analysis of the cell
phone was conducted on December 11, and law enforcement conducted a second interview
with the Defendant on that same day.
In his motion to suppress, the Defendant contended that the data extracted from his
cell phone on December 11 was illegally obtained by law enforcement because, in order to
obtain the “IMEI” number from the phone, law enforcement had to remove the SIM card
from the phone, which he contended amounted to a “direct illegal search.” As to his
December 11 statement to law enforcement, which was made while he was in custody at
the Lincoln County Sheriff’s Department, the Defendant contended that it was illegally
obtained because he had appointed counsel, having been arraigned the previous day.
The Defendant filed a second motion to suppress, contending that the search of his
cell phone had far exceeded the scope of the search warrant. The Defendant contended
that officers had provided a sworn affidavit, attached to the warrant application, stating that
they would perform a “keyword search” of the cell phone to find specific information
related to narcotics violations. He contended that the actual search performed by law
enforcement had been of the entirety of the phone’s data and was therefore overly broad.
The State responded with a motion to strike the Defendant’s motions to suppress on
the grounds that they were untimely filed pursuant to Tennessee Rule of Criminal
Procedure 12(c) and that his claims were waived pursuant to Rule 12(f).
The trial court held a hearing on the Defendant’s and the State’s motions, during
which the following evidence was presented: Mike Pitts testified that he was an investigator
with the Lincoln County Sheriff’s Department and applied for a search warrant for the
Defendant’s residence on suspicion of possession of a firearm. A search of the residence
revealed ammunition and narcotics, and the Defendant, a convicted felon, was arrested on
December 7, 2019. He was interviewed that same day relevant to aggravated assault and
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felonious possession of a firearm charges. Investigator Pitts recalled that the Defendant
was advised of his Miranda rights at that time and that the Defendant indicated he did not
wish to speak with law enforcement without counsel present, at which point the interview
ceased.
Law enforcement sought a second search warrant, dated December 10, 2019, for the
Defendant’s cell phone related to his suspected communication for purchasing narcotics
and arranging drug deals. The cell phone had been recovered from the Defendant at the
time of his arrest on December 7. Investigator Pitts identified the Defendant’s cell phone
number on the application along with the device’s “IMEI” number.
About the data that was extracted from the Defendant’s cell phone, Investigator Pitts
stated that it contained photographs of young naked children. He could not recall for
certain whether any evidence of narcotics violations was contained in the extracted data.
When asked by the trial court to clarify, Investigator Pitts stated that another
investigator had extracted the data from the Defendant’s cell phone, looking for evidence
of narcotics sales and had found pornographic images of children in the process. He
clarified that the original search warrant was for the Defendant’s residence, related to a
weapon, and the second warrant was for the cell phone, related to narcotics sales.
Nathan Massey testified that he served as an investigator in this case on behalf of
the Lincoln County Sheriff’s Department. Investigator Pitts brought him the Defendant’s
cell phone, which was locked. Investigator Pitts returned the following day with a search
warrant authorizing a search of the Defendant’s cell phone based on probable cause that it
contained evidence of narcotics offenses. The warrant authorized a search of images,
graphic files or “any other data” that would appear to be a narcotics violation. Investigator
Massey performed the extraction on the Defendant’s cell phone and found images in a
password protected photo gallery. He stated that there were 500 pornographic images of
children found on the cell phone. When asked if Investigator Massey expected to find
evidence of drug offenses in photographs on the cell phone, he stated that images of drug
paraphernalia, prescription pills, or drug manufacturing were all possibilities. He stated
that he “just happened” to find pornographic images of children. He could not remember
if images pertaining to drug offenses were found. Once the pornographic images were
found, the investigation for drug offenses continued alongside a new investigation into
child exploitation.
Investigator Massey recalled that he interviewed the Defendant at some point and
told him he had some other topics to discuss with him besides the narcotics. Investigator
Massey asked the Defendant for the passcode to the locked gallery on his cell phone. The
Defendant entered the passcode at which point he discovered more pornographic images
of children, so Investigator Massey photographed the images on the cell phone to preserve
the evidence. Investigator Massey stated that the images were of girls under five years old
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completely nude. During his interview with the Defendant, Investigator Massey made him
aware that a search warrant for his cell phone had been granted and read the Defendant his
Miranda rights, following which the Defendant signed a waiver. He provided the
Defendant with a copy of the warrant and made clear to the Defendant that he was
interviewing him about the contents of his cell phone. Investigator Massey stated that he
did not find evidence of drug offenses on the cell phone but did find images related to gang
activity.
Following the hearing, the trial court issued an order denying the Defendant’s
motions, making the following findings:
The search warrant in the drug case did not authorize law enforcement to
look for child pornography and when the pornography was discovered law
enforcement should have discontinued their search of the phone and
obtained a search warrant for further extraction of child pornography.
The court would generally agree the search warrant did not authorize law
enforcement to examine the Defendant’s phone for child pornography. In
fact, law enforcement had not an inkling [that] child pornography was on the
phone until the initial extraction which dumped 183 images. A fair reading
of the search warrant indicates several times the warrant is seeking evidence
of “Narcotics Violations”, not child pornography. The Defendant agreed,
after a signed rights advisement, to discuss the child pornography matter with
Massey and voluntarily provided the pass code to the Privary app where the
remainder of the images beyond the first 183 images downloaded in the
initial extraction was stored. While the search warrant did not allow for a
search of child pornography, the search could continue for narcotics
violations in places reasonably expected to discover the same. If Massey had
searched in places where it is unlikely or unreasonable to find narcotics
violations and found child pornography, the outcome could be different.
However, this is factually driven and not really the issue given the facts of
this case.
....
Turning to the facts of the instant case, when Massey executed his
initial extraction of data from the Defendant’s phone 183 images of child
pornography were downloaded in the mix of everything else. The remaining
images eventually found were in the Privary app and were password
protected and not downloaded. Whether Massey believed the search warrant
for drug activity permitted him to keep searching is not really an issue
because his search had ended since he could not gain entry to the contents of
the Privary app. Had Massey been able to continue to search believing the
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warrant for drug activity gave him authority to now search for both drug
activity and child pornography, as in Carey, his additional findings may have
been in jeopardy, at least to the child pornography. Anyway at that point, the
search of the phone was discontinued and the Defendant Greenman was
summoned for an interview. The Defendant, after a rights advisement,
consented to the interview and voluntarily entered the Privary app password
to allow Massey to access the contents. This is a distinguishing factor
between this case and the Walser and Carey cases. In neither of those cases
was the Defendant asked or gave consent to further search beyond the scope
of the original warrant for drug activity.
Defendant claims the IMEI number obtained on the phone by law
enforcement constituted a search.
Defendant in his pleadings contended the cell phone had to be opened and
searched in order to locate the identifying IMEI number. At the hearing the
evidence adduced indicated the IMEI for this particular model phone was
actually readily viewable on the exterior back of the phone and,
consequently, no intrusion into the phone was necessary. However, even if
law enforcement had to open the back of the phone or a compartment to
obtain the number the same does not constitute a search for data as prohibited
by Riley v. California, 573 U.S. 373 (2014). See State v Brown, No M2017-
00904-CCA-R3-CD, 2019 WL 1514551, (Crim. App. Ct., Middle District,
04/08/2019). This issue is without merit.
Since the Defendant was represented by counsel in the drug case he should
not have been interviewed by law enforcement about the child pornography
found on the phone despite waiving Miranda in writing.
First, Defendant’s original motion to suppress at page 4 alleges the
Defendant asked for counsel and complains Massey never told the Defendant
he could contact the attorney representing him on the unrelated drug matter.
Evidence presented indicated a valid rights waiver which advised the
Defendant he was entitled to counsel if he so chose on the topic of child
pornography. The Defendant signed the waiver acknowledging his rights
and cooperated with Massey. There is no evidence the Defendant seemingly
does not contest the validity of the waiver or admonition of rights. Defendant
asked for counsel in either the pending drug case or the child pornography
case being investigated. To the contrary, there is credible evidence the
Defendant exercised his right to remain silent when Sgt. Pitts attempted to
interview him relative to only the drugs and there is, further, credible
evidence Sgt. Pitts “scrupulously honored” the invocation of that right. It
was not until several days later the child pornography was discovered and
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that investigation began.
While Defendant complains about already having counsel in the drug
case, under the Sixth Amendment to the U.S. Constitution there was no right
to counsel for the child pornography investigation since there had been no
initiation of judicial proceedings. This is irrespective of whether the
Defendant was in custody or not and irrespective of whether he had already
been appointed an attorney in the unrelated drug case. The matter simply
was being investigated. Massiah v U.S.,377 U.S. 201, 84 S.Ct. 199 (1964).
Going further, while there was unquestionably a custodial interrogation
under the Fifth Amendment to the U.S. Constitution; however, the statement
elicited was voluntary, knowing, intelligent and uncoerced with a proper
waiver of rights under Miranda.
Just because the Defendant invoked his right to remain silent in the
drug case does not ipso facto mean questioning was prohibited in the child
pornography investigation.
....
In the instant matter, once the Defendant invoked his right to remain
silent in the drug cases all questioning appears to have ceased. It was not
until days later upon the discovery of the child pornography on the
Defendant’s phone did questioning resume and solely upon an unrelated
topic to that of drugs. In this case the Defendant’s right to remain silent was
scrupulously honored in the drug case and additional later questioning about
child pornography was not prohibited. Thus, statements made by the
Defendant and evidence obtained as a result of the interrogation is
admissible.
A. Trial
The following evidence was presented at the Defendant’s trial: Sergeant Jesse Mills
testified that he worked for the Lincoln County Sheriff’s Department and that he conducted
a December 6, 2019 traffic stop of the Defendant’s vehicle, in a matter unrelated to this
case, and subsequently took possession of the Defendant’s cell phone.
Investigator Mike Pitts, also employed by the Lincoln County Sheriff’s Department,
testified that he was given the Defendant’s cell phone by another officer, which he secured
in his office until presented with a search warrant for the phone. Investigator Pitts provided
the signed search warrant and the cell phone to Investigator Nathan Massey who performed
a forensic examination, or data “dump,” on the cell phone. The examination revealed child
pornography images contained on the phone.
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Investigator Massey testified about his forensic examination of the cell phone. He
identified the phone report and a few messages where the Defendant identified himself.
There were also pictures of the Defendant and emails from an account listed under the
Defendant’s name and birthday. A quick scan of the images on the cell phone tallied 183
images of nude minor children which Investigator Massey was able to determine, based on
his experience with data extraction, had come from the “dark web.” Investigator Massey
also identified a “Gallery Lock” file which he knew to be a file with images stored behind
a passcode. He also identified an application on the phone known as “Privary,” which he
stated was used to store hidden images.
Following his recovery of the 183 images, Investigator Massey interviewed the
Defendant on December 11, 2019. He informed the Defendant of his Miranda rights and
the Defendant waived those rights. The interview was audio and video recorded and was
played aloud for the jury. In the interview, the Defendant stated that the cell phone had
been in his possession for several weeks and that he had gotten it from a friend named
Milo. He stated that he had borrowed the cell phone from Milo periodically and messaged
people saying that the associated phone number was now his. The Defendant clarified that
he had possessed the cell phone for the majority of the prior two to three months. The
Defendant agreed that there were “hidden” images on the phone. The Defendant said that
he had viewed pornographic images of girls as young as ten, and that, when he did so, his
phone would freeze. He stated that he used an “incognito” browser to search the images.
The Defendant agreed that some of his searches, including “young sexy girl,”
returned images of child pornography that he saved in a locked gallery on his phone. He
did this so he could hide the images but denied an interest in child pornography. He stated
that “teen porn” was definitely of interest to him and that the purpose of his looking at or
watching porn was for masturbation. He agreed that, in some of images, he definitely was
aware that the girls depicted were younger than ten years old. He stated, however, that
saving those images to his phone had been inadvertent and that he did not masturbate to
child pornography.
When asked about the pornographic images of children found on his phone, initially
totaling 183 images, the Defendant expressed embarrassment and shame. At Investigator
Massey’s request, the Defendant typed in a passcode on his phone that unlocked a gallery
of images, which he acknowledged contained child pornography that he saved so he could
access the images more than once. The total number of images found exceeded 500.
Investigator Massey took photos of the images to preserve them as evidence. He
stated that the files were labeled “New Bi**hes” and “Bi**h[e]s.” He clarified that he
accessed the locked images after the Defendant typed his passcode into the cell phone. The
Defendant said that he was using two searches to find the images: “young sexy girls” and
“teen porn.” The Defendant identified two internet browsers that he used to search the
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images: “TOR” browser, which Investigator Massey knew to be a search browser of the
“dark web,” and Chrome “Incognito.”
Investigator Massey accessed the locked images on the cell phone. The images were
shown to the jury and described by Investigator Massey before being entered into the
record as exhibits. Investigator Massey described each of the images generally as being of
young females with their vaginas, buttocks, or breasts being the focal point of the images.
He described some of the images showing young girls being vaginally or anally penetrated
by a penis or an object. He described one image of a young girl wearing a Barbie shirt
with her vagina visible.
On cross-examination, Investigator Massey testified that the Defendant told him
during the interview that he had gotten the cell phone from another individual, Milo Hasan,
but that it was “his phone.” Everything from the data extraction indicated to Investigator
Massey that the phone belonged to the Defendant. Investigator Massey found a contact
number in the phone for Milo Hasan as well as incoming communication from that number
to the Defendant’s phone. This, along with the Defendant’s statement that he was using
the phone, credited Investigator Massey’s conclusion that the Defendant was in possession
and use of the phone.
Investigator Massey agreed that in some of the images depicting young girls, their
faces were not visible, making it difficult to determine their age.
Based on this evidence, the jury convicted the Defendant of three counts of sexual
exploitation of a minor more than 100 images and one count of sexual exploitation of a
minor more than fifty images.
C. Sentencing
The trial court held a sentencing hearing, at which the presentence report was
admitted as evidence into the record. Michelle Banks, a Tennessee Department of
Correction employee, who prepared the report after interviewing the Defendant, stated that
the Defendant admitted to persistent alcohol use and habitual illegal drug use. Ms. Banks
testified that the Defendant had prior convictions for possession of methamphetamine,
aggravated burglary, aggravated robbery, shoplifting, auto burglary, and attempted
burglary. The Defendant had also violated the conditions of his prior release on parole.
The Defendant had pending drug charges at the time of sentencing.
Based on this evidence, the trial court stated the following:
The first thing the Court has to determine is what range of offender
[the Defendant] may be. And in this particular case he has three B felonies
and one C felony he was convicted of. For purposes of enhancement he has
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an aggravated robbery and an aggravated burglary, they both occurred the
same day and one involves an offense against a person so hence they do not
merge. So the Court will determine that for purposes of sentencing on all of
the counts in this case he will be a Range 2 offender with a 12 to 20 year span
on the B’s and 6 to 10 year span on the C felony.
The next thing we have to determine is the enhancement factors and
mitigating factors. Certainly enhancement factor 1 applies, he has prior
criminal convictions in this case as so stated in the Presentence Report and
uncontested. I’m going to address 8 and 13. Eight being he failed to comply
with conditions of sentencing involving release in the community. This was
a case unrelated to this as demonstrated in the presentence investigation. And
of course 13 applies in this case because he was on parole at the time of this
offense, thus that would make any sentence that I do today would be
consecutive to that parole by operation of law. However it appears by
everything that it expired on March 4, 2020. So really for today[’]s purposes
the only thing that affects is the presentence credits. In this case he was
serving a parole revocation until March 4 of 2020. So any amount of credits
before then would apply to his case, but all the credits since then would.
Now the State advances enhancement factor 7, pleasure or excitement.
Sometimes you look at these cases, particularly like a rape case well that
would always be done for pleasure or excitement. That is not necessarily
true. According to case law sometimes it is for domination and control more
than anything else. I think if one were to apply this factor I think there is
ample proof in the record based on statements given to Agent Massey why
he looked at those particular images. So I find I can’t specifically point to a
case that says it would apply in this case but I think it makes sense. But even
if I were in error, it is not going to affect what I do today.
So I’m going to find that all of those apply, one heavily, 8 and 13
heavily, 7 to a lesser degree but again even if 7 was in consideration I don’t
think it would move the needle in any respect.
....
Now back on to where I was, after I looked at the enhancing and
mitigating factors in this situation then I have to make some determination
as to the length of the sentence. And so in this particular case given the
enhancement and mitigating factors, I think I can easily justify the 20 years
but I have to look on each one of the B’s, I have to look at the overall structure
of the sentence. . . . . So I believe at least for the first two B felonies a
sentence of 18 years is appropriate. So then I have to look at the next 2
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sentences. What I’m going to do the Class C sentence easily reaches the
maximum of 10 years. And I have the other B, and that particular B I’ll
explain what I’m going to do here in a minute. It appears a little bit
inconsistent until you reflect on the case I just mentioned. It is going to be a
12 year sentence. and mitigating factors in this case. So you have two 18
year sentences at 100 percent, a 12 year sentence at 100 percent, a 10 year
sentence at 35 percent. But then I have to move on and determine whether
this is consecutive or concurrent sentencing.
In this particular case as I mentioned the Parole this would be
operation of law consecutive to Parole although it is moot to a large degree
except for sentence credits. I disagree with the State that there is ample proof
in the record that demonstrates that [the Defendant] is a professional criminal
who knowingly devoted such life to criminal acts as a major source of
livelihood. You see that particularly in cases where we have a person that
has been dealing drugs over a long period of time. They have no other means
of support. That is their business dealing drugs as opposed to somebody who
is a petty drug dealer and user and he sells a little bit and pinches a little bit
off to support his habit but there is the distinction. So really I don’t believe
in this case there is enough in the record to apply enhancement factor 1. And
the one that would apply here -- So and that is based upon enhancing excuse
me, not enhancement factor but the one on consecutive sentencing under 40-
35-115. Number 2 is the one that requires the most debate. Yes, agree, Mr.
Brown, we all have seen sentences of people who had a more expansive
record. Of course [the Defendant] has managed to in his 30 plus years of
existence there to have gotten a fairly extensive record since age 18. The
presentence investigation shows he was born December 6, 1988. So at the
time of this offense he would have been around 30 years of age give or take
a little bit. So between 18 and 30 he has already gotten at least four felonies,
one for aggravated robbery which is a terrifying crime for anybody to endure,
aggravated burglary, two auto burglaries. He had a number of things I
noticed in the Presentence Report where he was charged with it looks like
auto burglary, a lot of them were reduced. He still on top of the four felonies
has five other misdemeanors, simple possession, theft, joyriding, attempted
burglary was subject to discussion a little while ago because it looks like it
would have been an E felony. The judgments reflect it is not. And then we
have facilitation of auto burglary and that was also reduced from auto
burglary or making it a misdemeanor, facilitation. So in a short period of
time [the Defendant] has managed to get a significant record in my mind, and
it is really -- you can’t -- I don’t know of a case that says there is X number
of convictions that qualify you to be -- to have an extensive criminal history.
I can’t find that case and if anybody knows more than I do I would appreciate
you sharing it with me. Because you can have no criminal history at all and
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still have extensive criminal history for your sentence. For example in my
series of ten home invasions, you may not have any criminal history before
then but you certainly did after you got caught, you don’t get ten for one
because each successive act is an activity that could be considered extensive
under factor 2 under 40-35-115. So I do believe that [the Defendant] is
subject to consecutive sentencing in this case under the discretionary portion
under number 2. I don’t think any of the rest of them particularly apply in
this case.
So how the Court is going to structure the sentence is we will take two
20 year sentences and 2 of the B’s will be run concurrent to one another and
we will take the other B and C and run them concurrent to one another but
we will stack the pairs. So that is a total effective sentence of 30 years at 100
percent less credits earned and retained the maximum of 15 percent.
Probation is obviously not a consideration nor is community correction in
this particular case. I don’t feel a necessity to go through those even on the
-- I run the C felony concurrent to the other one which he would not be
subject to any alternative sentencing any way. But even if I had to address
the C felony I would incorporate all of these things I normally incorporate
and put in the Presentence Report his social history and mental and physical
condition, circumstances surrounding the offenses and so forth, I would deny
alternative sentencing even on the C because he has already demonstrated
several times he has been on some form of release and failed so that is enough
to call that off to begin with.
So in this particular case again we will take the pair of B’s at 18 years
and we will run those concurrent, and we will take another B and C at 12
years and 10 years respectfully and run those concurrent but the pairs will be
run consecutive with one another.
D. Motion for New Trial
Following sentencing, the Defendant filed a timely motion for new trial, claiming,
relevant to this appeal, that the evidence was insufficient to convict him because the
pornographic images showed blurred faces, making it impossible to determine the ages of
the girls depicted. He contended that the majority of the images did not establish the age
of the victim and that the jury failed to determine the ages of the girls. He also contended
that many of the images shown were not sexual in nature. He further argued that the trial
court should have granted his motion to suppress his statement and the images from his
cell phone, and that the trial court incorrectly sentenced him.
Following a hearing, the trial court denied the motion, making the following
statement:
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The evidence was insufficient as a matter of law to sustain the
conviction for 3 counts of sexual exploitation of a minor, over 100 images
and one less than a hundred but greater than 50. I would have to disagree
with that. I think the evidence was more than sufficient. Also I want to put
on the record, sometimes I am a bit meticulous. So with the verdict forms
we had a chart for the jury and each image had a JPEG number in the order
in which it was presented during trial. And so the jury was able to take that
JPEG number being 1, 2, 3 or 50 or 100 or whatever it may have been and
go down through there and mark whether it met the definitional elements or
did not meet the definitional elements and they totaled them at the end and
came up with whatever that number might have been and that was reflected
in the jury form. And the itemization of the images was attached to the jury
form. And they followed that to a T. Matter of fact we had no questions that
I recollect and no issues about use of the forms. In addition to that the jury
was allowed to make notes on each JPEG that was in there in the order in
which they were presented. And we supplied them with the JPEG number
and room to make notes so they would be able to go back and refer to their
notes as to what they believed each image depicted. So I think from an
organizational element here that the trial was very well done. But Mr.
Greenman got a little bit of relief on one count, the State was selective in its
organization of which counts had what images so that in the event they were
questioned it would be unlikely even if they kicked out a number of them it
would be less than 100. And they only did that on one count, so they kind of
judiciously selected which images to which count. So I think the case was
extremely well tried. So I do find there was sufficient evidence as a matter
of law to support the convictions.
Number 2, numerous pictures did not show to the jury the person’s
face. There were some that did not show the face or were not real clear,
however that does not prevent a ruling by the jury in favor of the state on that
image because I think the jury could tell if it was an 8 year old or a 20 year
old. And we got in to situations where this person could be 16, they could
be 17, they could be 20, and we don’t know. And I think the jury took that
into consideration because they threw out 100 and I thought it was 27, but it
was something in that realm. So I think they really looked at it and if they
said well we don’t know, I think they kicked it out. I mean we had 505
images and what, 378 of them or whatever survived and about 127 didn’t.
So I think they gave it great consideration. I don’t think it is necessary that
the person’s face be in view. I think there is other ways to discern the age of
a person.
Number 3, it just dovetails back into sufficiency. So I will reiterate
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what I said there.
Number 4 is pretty much a sufficiency argument as well stating that
some of the things were not in a sexual nature or depicted lewd or lascivious
behavior. And I think the jury took that in to consideration on each picture
because we forced that jury to make 505 separate decisions. It was not like
they had to determine if it was possession with intent to sell or possession
with intent to deliver or whether it was theft of over 10,000 or theft over
2,500 or anything like that. They had 505 separate decisions.
Item 5, the trial court in failing to deny the [D]efendant’s motion to
suppress, that I erred basically. I put down an opinion as to what I thought.
I mentioned that a moment ago when discussing this with Mr. Brown, I stand
by my ruling. I think consent was given, I think the distinguishing factor of
the cases I cited in my opinion where no consent from the defendant was
obtained. Matter of fact no search warrant in one of those cases was even
sought and that case was suppressed at least to the remaining images. In the
other case the agent had the wherewithal to think I need to stop and get a
search warrant because now my search has broadened the scope beyond what
I originally asked for, and that was withheld. And I think this case is different
in the fact that no search warrant was obtained but consent was given. I did
mention in there I did respectfully disagree with Mr. Agent Massey on one
issue but it didn’t matter because consent was given. The original search
warrant did not cover child pornography. At that point Agent Massey had
three choices, I think he realized that could be detrimental. He could have
sought a search warrant. Or he could do exactly what he did and that was
talk to the [D]efendant and get his consent, and that is what happened. So I
think that is the turning point in this case versus the cases I mentioned in my
opinion are.
As far as the issue about him having counsel in other cases, as far as
his election not to talk to Sergeant Pitts on those cases was scrupulously
honored, all interrogation ceased on the topic of drugs or some type of
altercation that happened at McDonald’s I believe it was, a couple of events.
So all questioning stopped when the defendant requested that. It was a couple
of 3 days later all of this arose when Agent Massey downloaded the
information looking for drugs and out popped out if I remember 187 images
of child pornography and he was kind of like whoa, I’m sure he was not
expecting to see that.
I think I covered item 6 in here with those statements.
Item 7 about the description of Agent Massey and the pictures. I did
13
agree with defense counsel that at times that probably we got a little bit too
descriptive. There had to be enough in the record for identification of the
pictures. I did sustain your objections. I believe I either instructed Agent
Massey not to be so descriptive or I told the State they needed to tell their
witness that. And he complied, but every now and then he may have still got
a little too descriptive. But in the end the pictures spoke for themselves. The
jury gave great consideration to each and every one of them which is evident
in their verdict. So even if one were to say he got too descriptive it had zero
effect on the verdict.
Regarding the sentence, the sentence is within range. I did comment
at the sentence hearing, [the Defendant] at the time of this offense was a
young man at least in my mind. And he had already amassed a pretty
significant adult record in a short period of time. And the record
demonstrated basically one fail after another that gifts of any type of
community release were not respected and they were not available on the B
felonies anyway. I took all of that in consideration and I believe the sentence
is appropriate given the nature of the offense and the history of the
[D]efendant.
It is from these judgments that the Defendant now appeals.
II. Analysis
On appeal, the Defendant contends that: (1) the trial court erred when it denied his
motion to suppress and his motion for a new trial; (2) the evidence is insufficient to sustain
his convictions; (3) the trial court erred when it denied his motion for new trial; and (4) the
trial court erred when it sentenced him.
A. Motion to Suppress
On appeal, the Defendant contends that the trial court erred when it denied his
motion to suppress (1) his statement to law enforcement and (2) the images found on his
cell phone. The State responds that the trial court properly denied the motion.
Our standard of review for a trial court’s findings of fact and conclusions of law on
a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).
Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing
party in the trial court is afforded the ‘strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.’” State v.
Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864
(Tenn. 1998)). Nevertheless, this court reviews de novo the trial court’s application of the
14
law to the facts, without according any presumption of correctness to those conclusions.
See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295,
299 (Tenn. 1999). The trial court, as the trier of fact, is able to assess the credibility of the
witnesses, determine the weight and value to be afforded the evidence, and resolve any
conflicts in the evidence. Odom, 928 S.W.2d at 23. In reviewing a trial court’s ruling on
a motion to suppress, an appellate court may consider the evidence presented both at the
suppression hearing and at the subsequent trial. State v. Henning, 975 S.W.2d 290, 299
(Tenn. 1998).
1. Statement to Law Enforcement
The Defendant contends that his statement to law enforcement was illegally
obtained because he had previously invoked his right to counsel during the December 7
interview. He contends that this invocation of rights should have remained in effect for the
child pornography investigation and December 11 interview. The State contends that the
Defendant did not invoke his right to counsel and waived his rights during the interview.
We agree with the State.
The Fifth and Fourteenth Amendments to the United States Constitution and article
I, section 9 of the Tennessee Constitution protect an accused’s privilege against self-
incrimination. Moreover, the United States Supreme Court held that the Fifth and
Fourteenth Amendments’ prohibition against compelled self-incrimination requires police
officers, before initiating custodial interrogation, to advise the accused of his right to
remain silent and his right to counsel. Miranda v. Arizona, 384 U.S. 436, 478-479 (1966).
Assuming the use of these procedural safeguards by police interrogators and provided that
the accused is acting voluntarily, knowingly, and intelligently, an accused may waive his
Miranda rights. State v. Mann, 959 S.W.2d 503, 529 (Tenn. 1997).
The right to counsel guaranteed by the Sixth Amendment and by Article I, section
9 attaches at the time the State initiates adversarial judicial proceedings against the
defendant. Michigan v. Jackson, 475 U.S. 625, 629 (1986); State v. Huddleston, 924
S.W.2d 666, 669 (Tenn. 1996). A defendant’s Sixth Amendment right to counsel may have
attached at the time of his statement but that does not necessarily mean that the police
questioning violated his Sixth Amendment right to counsel. See Patterson v. Illinois, 487
U.S. 285, 293 (1988) (explaining that Miranda warnings effectively convey to a defendant
his right to have counsel present during questioning and also adequately inform a defendant
of “the ultimate adverse consequence” of making uncounseled admissions). Further,
Miranda warnings “suffice[ ] . . . to let [the defendant] know what a lawyer could ‘do for
him’ during the post indictment questioning” namely, advise him to refrain from making
statements that could prove damaging to his defense. Patterson at 294. Accordingly, “[s]o
long as the accused is made aware of the ‘dangers and disadvantages of self-representation’
during post-indictment questioning, by use of the Miranda warnings, his waiver of his Sixth
Amendment right to counsel at such questioning is ‘knowing and intelligent.’” Id. at 300.
15
Relevant to this issue, the trial court found that, since there had been no initiation of
judicial proceedings at the time of the December 11 interview, there was no right to
counsel. This was irrespective of whether or not the Defendant was in custody and
irrespective of whether he had already been appointed an attorney in the unrelated narcotics
case. The trial court noted that the Defendant did affirmatively invoke his right to remain
silent during the December 7 interview and questioning ceased as a result. The trial court
stated that the initial invocation of rights did not continue to the second interview, which
was conducted on a separate matter. The trial court further concluded that the Defendant’s
December 11 statement to Investigator Massey was voluntary, knowing, intelligent, and
uncoerced with a proper waiver of rights under Miranda.
The evidence does not preponderate against the trial court’s findings. Upon meeting
with the Defendant, Investigator Massey informed him that he had “something else” to
discuss besides the narcotics investigation. He advised the Defendant of his rights, after
which the Defendant signed a Miranda waiver form. The Defendant expressed his
understanding of his rights and agreed to speak with the investigator. The Defendant did
not express a desire to have counsel present or to stop the questioning. The Defendant
went on to voluntarily grant the investigator access to his phone and continue to answer
questions about its contents. The Defendant was aware of his option to invoke his right to
remain silent, as he had done so in his prior interview. Based on our review, we conclude
that the Defendant’s statement was knowing and voluntary, as he had read and signed a
Miranda waiver form. Furthermore, the questions and tactics used by the investigator did
not rise to the level of coercion necessary to require the suppression of the statements.
2. Cell Phone Images
The Defendant next contends that the pornographic images of children were found
on his cell phone as a result of an illegal search and should have been suppressed. He
contends that the affidavit attached to the search warrant application was overly broad and
that the initial search of the phone, which returned the 183 unlocked pornographic images,
had “no bearing” on the permitted search for narcotics violations. The State responds that
the search of the Defendant’s cell phone, pursuant to the warrant, for narcotics violations,
inadvertently revealed the pornographic images of children but was not expanded to a
search of the cell phone where it was unlikely or unreasonable to find evidence of narcotics
violations. The State also contends that the search was appropriate under the plain view
doctrine because the investigator had lawful access to the contents of the cell phone when
he uncovered the incriminating and “immediately apparent” evidence of child
pornography. We agree with the State.
The Fourth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, provides as follows:
The right of the people to be secure in their persons, houses, papers, and
16
effects, against unreasonable searches and seizures, will not be violated, and
no warrants will issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend. IV; see Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d
1081 (1961). Similarly, article I, section 7 of the Tennessee Constitution provides:
[P]eople shall be secure in their persons, houses, papers and possessions,
from unreasonable searches and seizures; and that general warrants, whereby
an officer may be commanded to search suspected places, without evidence
of the fact committed, or to seize any person or persons not named, whose
offenses are not particularly described and supported by evidence, are
dangerous to liberty and not to be granted.
Tenn. Const. art. I, § 7.
“[A] search warrant shall be issued only on the basis of an affidavit, sworn before a
‘neutral and detached’ magistrate, which establishes probable cause of its issuance.” State
v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999). To establish probable cause, the affidavit
must demonstrate a “nexus among the criminal activity, the place to be searched, and the
items to be seized.” State v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009) (citing State v. Reid,
91 S.W.3d 247, 273 (Tenn. 2002)). In determining whether the nexus has been sufficiently
established, 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.’” Id. (quoting Reid, 91 S.W.3d at 275).
“[U]nlike an affidavit in support of an arrest warrant, an affidavit seeking issuance of a
search warrant need not implicate a particular person in the crime under investigation.”
State v. Tuttle, 515 S.W.3d 282, 301 (Tenn. 2017) (citations omitted).
The trial court stated that the search of the cell phone was valid because the first
batch of 183 images was done pursuant to a valid warrant. The remaining images were
obtained by consent of the Defendant after Investigator Massey asked for the passcode to
the locked gallery on the phone. For these reasons, the trial court determined that the
images were obtained pursuant to a legal search.
Our review of the record brings us to the same conclusion. The investigator sought
a warrant for the cell phone and testified that he viewed the images therein looking for
evidence of drug use or paraphernalia, as was authorized by the search warrant. The
warrant specifically authorized officers to search for “images” and “video graphic files”
related to the narcotics violations and this language was not overly broad. The investigator
saw, during his search, images of naked young girls in sexual positions, prompting him to
17
seek permission to continue his search of the phone’s images. The Defendant granted him
access to additional images on the phone by entering his passcode of his own volition. For
these reasons, we conclude that the images extracted from the cell phone were obtained
either a) pursuant to a valid search warrant or b) pursuant to the Defendant’s voluntary
consent to search. The evidence extracted was thus legally obtained and should not have
been suppressed. The Defendant is not entitled to relief.
B. Sufficiency of the Evidence
The Defendant next contends that the evidence is insufficient to support his three
convictions for sexual exploitation of a minor more than 100 images. He contends that
there was insufficient proof of the minor ages of the girls in the photographs and
insufficient proof that the photographs were sexual in nature. The State responds that the
evidence was sufficient to prove that the Defendant possessed pornography depicting
minors and argues that proof of the subjects’ ages or identities was not required. The State
contends that a rational trier of fact could have concluded that the images depicted minors.
We agree with the State.
When an accused challenges the sufficiency of the evidence, this court’s standard
of review is whether, after considering the evidence in the light most favorable to the State,
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original);
see Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing
State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt
based upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be drawn
from such evidence, and the extent to which the circumstances are consistent with guilt and
inconsistent with innocence, are questions primarily for the jury.’” State v. Rice, 184
S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn.
1958)). “The standard of review [for sufficiency of the evidence] ‘is the same whether the
conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).
In determining the sufficiency of the evidence, this court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of witnesses, the
18
weight and value to be given the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997). “‘A guilty verdict by the jury, approved by the trial judge, accredits the testimony
of the witnesses for the State and resolves all conflicts in favor of the theory of the State.’”
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973)). The Tennessee Supreme Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,
527 (Tenn. 1963)). This court must afford the State the “‘strongest legitimate view of the
evidence’” contained in the record, as well as “‘all reasonable and legitimate inferences’”
that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting State v. Smith,
24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes
the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to sustain
a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
A conviction for sexual exploitation of a minor requires the State to show that the
Defendant “knowingly possess[ed] material that include[d] a minor engaged in . . . [s]exual
activity; or . . . [s]imulated sexual activity that is patently offensive.” T.C.A. § 39-17-
1003(a)(1), (2) (2019). The statute provides that “the trier of fact may consider the title,
text, visual representation, internet history, physical development of the person depicted,
expert medical testimony, expert computer forensic testimony, and any other relevant
evidence, in determining whether a person knowingly possessed the material, or in
determining whether the material or image otherwise represents or depicts that a participant
is a minor.” T.C.A. § 39-17-1003(c). Furthermore, “the state is not required to prove the
actual identity or age of the minor.” § 39-17-1003(e). Tennessee Code Annotated section
39-17-1002(2) defines “material” as “[a]ny picture, drawing, photograph, undeveloped
film or film negative, motion picture film, videocassette tape or other pictorial
representation[.]” Ordinarily, sexual exploitation of a minor is a Class D felony. T.C.A. §
39-17-1003(d). If the number of individual images exceeds one hundred, though, the
offense is a Class B felony. T.C.A. § 39-17-1003(d).
The evidence viewed in the light most favorable to the State was that the Defendant
searched for and saved images to his cell phone depicting young children in sexual
positions or images concentrating on children’s vaginal or anal areas. In many of the
19
images the minors were wearing underwear or were nude. The young age of the minors
was readily apparent in some images. When confronted with the images, the Defendant
agreed that he saved images showing minor women. This is sufficient evidence from which
a jury could conclude beyond a reasonable doubt that the Defendant was guilty of sexual
exploitation of a minor. It is clear from the verdict that the jury scrutinized the ages of the
individuals depicted as well as whether their actions were sexual in nature. The number of
images presented to the jury exceeded 500. The jury, after reviewing each individual
image, determined that some of the images did not depict sexual activity or lacked another
element of the offense. Based on this, the jury did not convict the Defendant for those
images. The Defendant is not entitled to relief as to this issue.
C. Motion for New Trial
The Defendant next contends that the trial court erred when it denied his motion for
new trial. The Defendant raises arguments that we have resolved elsewhere in this opinion.
The additional allegation was that the motion should have been granted because
Investigator Massey violated the trial court’s rulings that he not use certain terms.
Although not identified in the Defendant’s brief, we presume, based on what transpired at
trial, that the Defendant is arguing that Investigator Massey’s repeated use of the word
“minor” to describe the images was erroneous. The State responds that although
Investigator Massey repeatedly used the term “minor,” the trial court instructed the jury
multiple times that it was their determination to make. The State further responds that, as
the jury determined that many of the images did not meet the criteria of sexual exploitation
of a minor, they followed the trial court’s instruction and were not influenced by the
testimony. We agree with the State.
During investigator Massey’s testimony, the trial court instructed him several times
to use the term “young” or “youth,” noting that the determination of the subjects’ minor
age was an element of the offense. The trial court also repeatedly explained to the jury that
Investigator Massey was misspeaking when he said “minor,” and that they must make the
determination that the subjects depicted in the images were in fact minors. The jury is
presumed to follow the trial court’s instructions, State v. Parker, 350 S.W.3d 883, 897
(Tenn. 2011), and thus we presume that the jury made its own determinations about the
subjects depicted and was not influenced by Investigator Massey’s use of the term “minor.”
For these reasons, the trial court did not err when it denied the Defendant’s motion for new
trial on this basis. The Defendant is not entitled to relief as to this issue.
D. Sentencing
Lastly, the Defendant contends that the trial court erred when it sentenced him. He
contends that his sentence was excessive given his lack of criminal history involving sex
crimes and the presence of mitigating factors. He further contends that the trial court erred
when it imposed consecutive sentencing. The State responds that the trial court properly
20
imposed a within-range sentence. The State points out that the trial court considered the
factors presented in favor of mitigation and declined to apply them. The State argues that
the trial court properly applied several enhancement factors to justify a sentence greater
than the minimum. As to the imposition of partially consecutive sentences, the State
contends that the trial court properly considered the applicable factors, namely the
Defendant’s extensive criminal record, and reasonably determined that consecutive
sentences were justified. We agree with the State.
1. Enhancement of the Sentence
“Sentences imposed by the trial court within the appropriate statutory range are to
be reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’”
State v. Bise, 380 S.W.3d 682 (Tenn. 2012). A finding of abuse of discretion “‘reflects that
the trial court’s logic and reasoning was improper when viewed in light of the factual
circumstances and relevant legal principles involved in a particular case.’” State v. Shaffer,
45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn.
1999)). To find an abuse of discretion, the record must be void of any substantial evidence
that would support the trial court’s decision. Id. at 554-55; State v. Grear, 568 S.W.2d
285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The
reviewing court should uphold the sentence “so long as it is within the appropriate range
and the record demonstrates that the sentence is otherwise in compliance with the purposes
and principles listed by statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court
sentences within the appropriate range and properly applies the purposes and principles of
the Sentencing Act, its decision will be granted a presumption of reasonableness. Id. at
707.
The misapplication of an enhancement or mitigating factor does not remove the
presumption of reasonableness from a trial court’s sentencing decision. Id. A reviewing
court should not invalidate a sentence on this basis unless the trial court wholly departed
from the principles of the Sentencing Act. Id. So long as there are other reasons consistent
with the purpose and principles of sentencing, a sentence within the appropriate range
should be upheld. Id.
In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code Annotated
sections 40-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A.
§ 40-35-210 (2019); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The
trial court must also consider the potential or lack of potential for rehabilitation or treatment
21
of the defendant in determining the sentence alternative or length of a term to be imposed.
T.C.A. § 40-35-103 (2019).
We conclude that the trial court properly sentenced the Defendant. The trial court
considered the relevant principles and sentenced the Defendant to a within range sentence.
The trial court applied enhancement factor (1), that the Defendant had an extensive
criminal history, including four felonies, one of which was aggravated robbery. T.C.A. §
40-35-114(1) (2019). The trial court applied enhancement factor (8), that the Defendant
had previously failed to abide by the terms of his release into the community. T.C.A. § 40-
35-114(8). Both of these factors were supported by the evidence contained in the
presentence report. As such, the appropriate application of enhancement factors (1) and
(8) supports the trial court’s sentencing decision. The Defendant is not entitled to relief on
this issue.
2. Consecutive Sentencing
Where a defendant is convicted of one or more offenses, the trial court has discretion
in determining whether the sentences shall be served concurrently or consecutively. T.C.A.
§ 40-35-115(a). “[T]he abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to consecutive sentencing determinations.” State v. Pollard, 432
S.W.3d 851, 860 (Tenn. 2013). A trial court may order multiple offenses to be served
consecutively if it finds by a preponderance of the evidence that a defendant fits into at
least one of the seven categories in Code section 40-35-115(b). This court must give
“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)[.]” Pollard, 432 S.W.3d
at 861. When imposing consecutive sentences, the court must still consider the general
sentencing principles that each sentence imposed shall be “justly deserved in relation to the
seriousness of the offense,” “no greater than that deserved for the offense committed,” and
“the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” T.C.A. §§ 40-35-102(1), -103(2), -103(4); State v. Imfield, 70 S.W.3d 698, 708
(Tenn. 2002). “So long as a trial court properly articulates reasons for ordering consecutive
sentences, thereby providing a basis for meaningful appellate review, the sentences will be
presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Pollard, 432
S.W.3d at 862 (citing Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705).
Here, the trial court found that consecutive sentencing was proper, pursuant to
section 40-35-115(b)(2), because the Defendant had a record of extensive criminal activity.
The trial court determined that this factor applied in light of the Defendant’s four prior
felonies and multiple misdemeanors. We agree. The Defendant is not entitled to relief as
to this issue.
III. Conclusion
22
After a thorough review of the record and relevant authorities, we affirm the trial
court’s judgments.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
23