State of Tennessee v. Christopher Hank Bohannon

04/17/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 13, 2017

STATE OF TENNESSEE v. CHRISTOPHER HANK BOHANNON

Appeal from the Criminal Court for Putnam County

No. 11-0566 David A. Patterson, Judge

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No. M2017-00104-CCA-R3-CD

___________________________________

The Defendant-Appellant, Christopher Hank Bohannon, was convicted by a

Putnam County jury of sexual exploitation of a minor for possession of over 100 images

of a minor engaged in sexual activity (count one) and aggravated sexual exploitation of a

minor based on the distribution, exchange, or possession with intent to distribute over 25

images of a minor engaged in sexual activity (count two), for which he received an

effective sentence of eight years. Tenn. Code Ann. §§ 39-17-1003(a)(1), -1004(a)(1)(A).

On appeal, the Defendant argues that: (1) the trial court improperly re-heard the

Defendant’s motion to suppress evidence; (2) the Defendant’s statements to police during

the execution of a search warrant at his residence should have been suppressed; (3) the

evidence was insufficient to support his aggravated sexual exploitation conviction; and

(4) the State made improper and prejudicial statements during its rebuttal closing

argument.1 Upon review, we affirm the judgments of the trial court.

Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and TIMOTHY L. EASTER, JJ., joined.

Seth Crabtree, Cookeville, Tennessee, for the Defendant-Appellant, Christopher Hank

Bohannon.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant

Attorney General; Bryant C. Dunaway, District Attorney General; and Beth Willis,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

1

We have re-ordered the Defendant’s issues for clarity.

Between March and April 2011, Detective Yvette Demming of the Cookeville

Police Department (CPD) conducted an undercover investigation into the Defendant’s

possession and distribution of child pornography. During her investigation, she engaged

an online file sharing peer-to-peer network which enabled her to download multiple

images of child pornography from a computer registered to the Defendant’s internet

protocol (“IP”) address. She eventually executed a search warrant upon the Defendant’s

residence and seized two of the Defendant’s computers. While executing the warrant, the

Defendant admitted to possession of child pornography and to downloading the file

sharing program on his computer. Subsequent examination of the computer hard drives

seized from the Defendant’s home revealed more than 100 images of child pornography.

As an initial matter, some discussion of the procedural history of this case is

necessary for the resolution of the Defendant’s issues pertaining to his motion to

suppress. The Defendant apparently filed a motion to suppress evidence seized during

the execution of the search warrant; however, no such motion is included in the record on

appeal. Nevertheless, two hearings on his motion to suppress were conducted on October

8, 2012 (first hearing), and April 7, 2015 (second hearing). Although the reason for the

delay in resolving the motion is not entirely clear from the record, it is apparent that the

trial judge who presided over the first hearing requested supplemental briefing. While

the briefing schedule was pending, the original trial judge retired, the attorney

representing the State had relocated, and the attorney representing the Defendant had

been permitted to withdraw. Significantly, and central to the issues raised in this appeal,

the appellate record does not contain an order disposing of the motion to suppress from

the original trial judge prior to his retirement. However, there is a reference in an

October 19, 2013 Memorandum Order, signed by the original trial judge, which notes

that, “[T]he defendant filed a pro se motion to suppress the evidence in the case after the

Court had ruled upon a previous suppression motion filed by his attorney. . . . The Court

finds that the issues raised by this motion have either been previously ruled upon by the

Court or have no application to this case.” (emphasis added). No other events occurred

regarding the Defendant’s case until it was set for trial in 2015.

At some point prior to the Defendant’s February 2015 trial date, the State filed a

motion requesting clarification of the initial trial court’s ruling on the first hearing. The

Defendant opposed the motion and insisted that no re-hearing was necessary because the

original trial court had granted his motion.2 In a March 10, 2015 order, the trial court, as

the successor judge, noted that there was a transcript of the first hearing, but it did not

contain findings of fact or a ruling disposing of the motion. It then set the Defendant’s

2

Neither the State’s motion nor the Defendant’s response is included in the record on appeal.

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motion to suppress for a second hearing. The Defendant filed a motion seeking to set

aside the trial court’s March 10, 2015 order based on excerpts from transcripts from the

original trial court.3 In addition, defense counsel argued, inter alia, that the appropriate

remedy was for the trial court to enter a “blank ruling” without findings of fact and

require the State to apply for an interlocutory appeal. In denying the Defendant’s motion,

the trial court stated, in pertinent part:

Further for the record I want to say that the transcript of the

proceedings from [the first hearing], all of the proof being completed, on

page fifty[-]eight the judge made this statement, there are quotes, the court,

well my inclination is that he was not in custody. There might be some

circumstances which would, some cases which would suggest

circumstances similar to this that might be placing him in custody. There’s

another paragraph and then the judge goes on to say, [the Defendant], as

I’m suggesting here, my inclination is to deny the Motion to Suppress, in

that under case law you were not in custody. However, here’s a person in

his own home who is under some disability. Does that amount to custody?

That question is left unresolved by this transcript.

I have been provided by the attorneys other parts of transcripts, one

from [August 1, 2013], and in that particular day the court says . . . . I

didn’t bring [the Defendant’s] file with me today, I apologize, but I

indicated that the court . . . would be ruling that the search warrant was

valid and the coercive atmosphere would lead . . . to suppressing the

statement that was given. That may be, those may be contradictory

findings, but at any rate. So [the Defendant], I’m going to allow the search

warrant that was issued to be ruled as valid so . . . evidence obtained from

the search warrant would be admissible. The admission that you made in

the room there with the officers when they first came in on the search

warrant, I’m suppressing that. That was [the August 1, 2013 transcript].

That is the only part of the transcript that refers to what the court may have

been thinking after it heard the testimony from [the Defendant’s] case on

[October 8, 2012].

On September 5, 2012, I’ve been provided with another part of the

transcript and [the assistant district attorney general], is addressing the

court and he says, Your Honor, I don’t want to get too far afield here. The

court has made a ruling on the audio taped statement that was made of this

3

Neither the Defendant’s motion nor excerpts from the transcripts relied upon by defense

counsel and submitted to the trial court are included in the record on appeal.

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defendant’s interview and the court ruled that was suppressed. And what

[the assistant district attorney general] at that time . . . is asking for is a

ruling by the court of whether during the cross examination of the

defendant the court would find it to be a voluntary statement and it could be

used by the state in cross examining the defendant. And there’s no real

answer to that either.

We move on to [September 16, 2013], and this has been provided by

the attorneys, and it is regarding the same issue and there’s a brief

discussion by the court. The court says well we don’t need to go a different

route, we’ve been there once. In fact, I guess the court suppressed, granted

the motion to suppress the statements you made. I believe that was correct,

but the warrant was upheld.

After reviewing the above transcripts and arguments of counsel, the trial court

described the original trial court’s disposition of the motion as “very muddy” because

there were no findings of fact or an order ruling on the motion entered on the record.

The trial court then proceeded with the second hearing and considered the transcript from

the first hearing in determining the merits of the motion to suppress.

At the first hearing, the Defendant moved to suppress the statements made to

Detective Demming during the search warrant, arguing that the police officers failed to

accommodate his disability, that he did not feel free to leave, and that his statement was

not voluntary. Detective Demming testified that on April 26, 2011, she went with CPD

Detective Lieutenant Bobby Anderson and Officer Eric Hall to execute a search warrant

for the Defendant’s residence. She had a recording device turned on before she knocked

on the Defendant’s door. When the Defendant answered the door, Detective Demming

identified herself and told the Defendant that she and the other officers were there to

execute the search warrant of his home. She told the Defendant several times throughout

their conversation that he was not under arrest and that he did not have to speak with her.

She said the Defendant agreed to speak with her and selectively answered some of her

questions while choosing not to answer others. When the Defendant mentioned that he

may need to talk to an attorney, she stopped talking with the Defendant. The Defendant

then went to the restroom and when he returned, he asked her what other questions she

had for him. She resumed the conversation and asked the Defendant specifically about

his use of file sharing programs. The Defendant again chose which questions to answer

or ignore and then asked her if they could “make a deal.” In her testimony, Detective

Demming confirmed that the Defendant was not under arrest and that he was free to leave

at any time.

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On cross-examination, Detective Demming testified that she was aware the

Defendant had some sight issues but did not believe he was completely blind. Prior to

the search warrant, Detective Demming performed surveillance on the Defendant’s home

and observed the Defendant walking unassisted and without a cane outside of his

apartment. She testified that at the end of the search, she read the consent form to the

Defendant, told him what items were being taken from his home as evidence, gave him a

receipt of those items, and left a copy of the search warrant with him. She said the

Defendant admitted to possessing child pornography on his computers and estimated that

he had over 100 images and 50 to 100 videos. He also admitted to using file sharing

programs, such as FrostWire, to download this material. She stated that the Defendant

never questioned their identity or requested accommodations for his disability.

The Defendant testified that when he answered the door, he observed three

individuals but did not know who they were because they did not identify themselves.

He said that Detective Anderson refused to let him put on his shoes and told him that he

was “not going anywhere.” The Defendant said he was “blind and defenseless” and that

the officers would not let him call someone or leave his home. He testified that he felt

coerced into answering Detective Demming’s questions and signing the consent form.

The Defendant then testified that the officers actually identified themselves as police

officers serving a search warrant but claimed that they refused to accommodate his

disability.

On cross-examination, the Defendant agreed that his conversation with Detective

Demming was mutual and consensual, that each of them asked questions, and that he

chose which questions he wanted to answer. He also agreed that his voice did not sound

panicked in the recorded conversation and that Detective Demming told him multiple

times he was not under arrest.

At the second hearing, Detective Demming testified consistently with her

testimony from the first hearing. In addition, she testified that, during the search warrant,

she wore a vest with “POLICE” written on the front and that Officer Hall was wearing

his duty uniform. Detective Demming identified exhibit 1 for the court as a disc copy of

the recorded conversation she had with the Defendant during the execution of the search

warrant. Detective Demming denied refusing to allow the Defendant to make a phone

call. She explained that his phone and modem were not taken until the end of the search

and had he wanted to make a call, he could have. She verified that her authority to search

the Defendant’s house came from the search warrant.

During Detective Demming’s testimony, exhibit 1, the recording of her

conversation with the Defendant during the execution of the search warrant, was played

for the court. In that recording, Detective Demming identified herself and stated that she

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and the other officers were there to execute the search warrant on his residence.

Throughout her conversation with the Defendant, she affirmatively told him that he was

not under arrest and that he did not have to speak with her. At one point in the

conversation, the Defendant referenced getting an attorney. Detective Demming again

told him that he was not under arrest but stopped questioning him immediately. The

Defendant then asked to use the restroom and when he returned, he asked if Detective

Demming had “any other questions[.]” Throughout the conversation, the Defendant

avoided answering specific questions by asking if Detective Demming had any other

questions. He stated that he “might be in a lot of trouble” and asked Detective Demming

multiple times if they could “work out a deal[.]” Further along in the conversation, the

Defendant admitted to possessing and masturbating to child pornography:

Detective: [D]o you have images on your computer of children

engaged in sexual activity?

...

Defendant: Well, yes I do.

Detective: Ok, do you have any videos?

Defendant: Yes I do.

Detective: Ok, if you had to guess, do you think you have, how

many images of child pornography do you think you

have?

Defendant: I don’t know. Fifty, maybe a hundred or so.

Detective: Ok. How many videos do you think you have?

Defendant: Two hundred. But some of those really wouldn’t be

considered child porn anyway.

Detective: Ok. Are they just, are they kids that have clothes on?

Defendant: Well, just because a child is nude does not mean that

it’s porn.

...

Detective: So would you masturbate to an image or a video of

child porn?

Defendant: Yea. But you’re not arresting me today?

Detective: No.

Detective Demming then asked the Defendant about his use of file sharing

programs. He admitted to using FrostWire and that he was aware that it was a file

sharing program that allowed users to share files amongst themselves. However, he

claimed he did not know that other users could access his files. Throughout the

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recording, the Defendant made several references to his limited eyesight, but he did not

say he was completely blind, nor did he ask for accommodations.

The Defendant testified consistently with his prior testimony. In addition, he

testified on cross-examination that he did not ask the officers to see their badges or to

verify their identity as police officers. He said he did not verbalize his desire to leave or

to make a phone call.

On rebuttal for the State, Detective Anderson testified that he accompanied

Detective Demming and Officer Hall during the execution of the search warrant. He

testified that they identified themselves to the Defendant and told him they were there to

execute the search warrant. Detective Anderson did not recall the Defendant attempting

to put on his shoes or asking to do so, but if he had, neither he nor the other officers

would have stopped him. He confirmed that the Defendant was never told he was “not

going anywhere” or that he could not leave or make a phone call.

The court denied the Defendant’s motion to suppress his statement. The court’s

ruling and findings of fact were reflected in its order entered on April 22, 2015.

Trial. Detective Demming testified consistently with her prior testimony. In

addition, she testified that on March 9, 2011, she began an undercover internet

investigation searching for individuals who possessed, distributed, or shared child

pornography through the file sharing program, FrostWire. She explained that each

computer that uses the file sharing program is assigned a Global Unique Identifier

(“GUID”) which is a combination of numbers and letters specific to that computer. She

specified that even if the Internet Protocol (“IP”) address for a computer changes, the

GUID remains the same. She testified that file sharing programs such as FrostWire

incentivize users to download the peer-to-peer program to their computers. She

explained as follows:

[W]hen you download the program to your device, it will go through

a series of steps as you’re downloading. It reminds you that it is a file

sharing program. You do have the option to opt out of that file sharing.

You can turn it off and it reminds you as you’re downloading this program

that you do have the option to do that. However, you have some

advantages. If you leave the file sharing option turned on, it allows you to

obtain more files more quickly. If you’re not sharing, you may be put last

in line, it may take you longer to get downloads, you may not be able to get

downloads from other people that are sharing files. So, it’s an advantage to

leave the file sharing option on.

-7-

During her investigation, she identified a local IP address that was using the file

sharing program to share images and videos with file names indicative of child

pornography. She said the internet provider identified the subscriber of that particular IP

address as the Defendant. She then investigated the Defendant and gathered enough

information to obtain a search warrant. From March through April 2011, Detective

Demming was able to download multiple images and videos consistent with child

pornography from the Defendant’s computer through the file sharing program. She

identified exhibit 1 as a disc containing the images and videos she downloaded from the

Defendant’s computer. Consistent with her prior testimony, Detective Demming also

testified regarding the April 26, 2011 search warrant. She identified exhibit 2 as the

recorded conversation she had with the Defendant during the search warrant. The

recording was then played for the jury.

On cross-examination, Detective Demming testified as she had in prior hearings.

In addition, she explained file sharing programs for the jury and stated that one of the

default settings for the program the Defendant used was a shared folder. This shared

folder stored the media downloaded by the Defendant and made it accessible to other

users of the file sharing program. She testified that the Defendant admitted to

downloading and having child pornography on his computer. She said that when she

asked the Defendant about sharing files, he claimed that he thought he had to upload the

files himself.

Detective Anderson testified consistently with his prior testimony. He identified

exhibits 3 through 8 as photographs taken during the search warrant of the Defendant’s

home. The photographs of the Defendant’s bedroom show his computer and television,

the active desktop computer, the computer modem, and the fax machine connected to the

bedroom computer monitor. There is also a close-up photograph of the bedroom

computer showing a zoomed-in effect on the screen and a photograph of the Defendant’s

older computer, not in use, located in this living room. Detective Anderson also testified

that he and Officer Hall seized the computers and modems as evidence and gave the

Defendant an inventory receipt for the items taken. He stated that he then returned to

CPD and locked the items into the evidence vault until they were retrieved for

examination by CPD Captain Carl Sells. Detective Anderson testified that he was aware

the Defendant had limited sight but had seen the Defendant move about the community

unassisted and without a cane on multiple occasions.

Captain Sells, an expert in forensic computer analysis, testified that he examined

the hard drives from the Defendant’s computers and found 177 images and videos

consistent with child pornography. Through his forensic analysis, he determined that the

IP address that Detective Demming connected to and downloaded child pornography

from during her undercover investigation was assigned to the Defendant’s computer. He

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also matched the Defendant’s GUID to the same GUID that Detective Demming

ascertained from the files she downloaded.

Captain Sells identified exhibit 1 as the disc he received from Detective Demming,

which contained the images and videos she downloaded from the Defendant’s computer.

He examined the images and videos and confirmed that they contained child

pornography. He then identified the hard drives retrieved from the Defendant’s

computers, his written forensic analysis report based on his examination of the

Defendant’s hard drives, and a disc containing the PowerPoint presentation of his

forensic analysis report and the actual images and videos recovered from the Defendant’s

hard drives, all of which were admitted as exhibits at trial. The disc with the PowerPoint

presentation contained each image and video’s file name, file type, file path (where it was

located on the Defendant’s computer), creation date and time, a short description of the

image or video, and, if applicable, the date that Detective Demming downloaded it.

On cross-examination, Captain Sells testified that the Defendant’s child

pornography files were stored in at least three different folders, including the shared

folder set up by the file sharing program. He examined the computer activity that

occurred at the same time the child pornography was downloaded and was able to

determine that the most recently accessed items and areas of the computer were accessed

by the Defendant.

The State then read into evidence exhibit 14, a stipulation by the Defendant that

112 images and 65 videos were recovered from his computer hard drives, all of which

depict minors engaged in sexual activity as defined by statute. Rather than display all of

the images and videos to the jury, the parties agreed to instruct the jury to consider the

fact that all of the images depicted minors engaged in sexual activity as having been

proven. After the State rested, defense counsel made a motion for acquittal which was

denied by the court. The defense elected not to put on any proof and rested.

After deliberation, the jury found the Defendant guilty on both counts, for which

the Defendant received a concurrent term of three and eight years’ imprisonment,

respectively.

ANALYSIS

I. Rehearing of Motion to Suppress. The Defendant contends that the trial court

erred in re-hearing his motion to suppress. He argues that the original trial court

“unequivocally stated its ruling to suppress” which was purportedly acknowledged by

both the State and the successor trial court. By granting the State’s motion to re-hear, he

further argues that the successor trial court improperly allowed the State to re-litigate the

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issue to the Defendant’s detriment. In addition, and for the first time on appeal, the

Defendant argues that by permitting the rehearing the trial court violated Rule 615 of the

Tennessee Rules of Evidence because witnesses were permitted to “refine their

testimony.” In response, the State contends that the Defendant has waived this issue by

failing to raise it before the trial court as well as failing to provide an adequate record on

appeal. Waiver notwithstanding, the State argues that the original trial court did not enter

a final ruling or make any findings of fact and therefore the State could not have sought

an interlocutory appeal. Because the Defendant failed to provide the pretrial transcripts

necessary to resolve this issue, the State argues that it is impossible to understand the

context of the statements of the original trial court regarding suppression and that the

successor trial court properly granted its motion to re-hear. We agree with the State.

Without belaboring the point, we decline review of this issue because the record

does not contain any of the transcripts relied upon by the Defendant and submitted to the

trial court for disposition. The State correctly observed that the Defendant failed to

provide this court with the transcripts evidencing the statements by the original trial

court. The appellant has a duty to prepare a record that conveys “a fair, accurate and

complete account of what transpired with respect to those issues that are the bases of

appeal.” Tenn. R. App. P. 24(b). “In the absence of an adequate record on appeal, we

must presume that the trial court’s ruling was supported by the evidence.” State v. Bibbs,

806 S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citing Smith v. State, 584 S.W.2d 811,

812 (Tenn. Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim. App.

1979)). Consequently, we conclude that the trial court’s decision to re-hear the motion to

suppress was proper.

II. Denial of Motion to Suppress. Next, the Defendant argues that the trial

court erred in denying his motion to suppress. He specifically argues that his statements

to Detective Demming during the execution of the search warrant were involuntary

because he is vision-impaired, a condition which the officers failed to accommodate. As

a result of his disability, the Defendant claims he was not free to leave, was coerced to

speak with the officers, and should have been given Miranda warnings. In response, the

State contends, and we agree, that the trial court properly denied the Defendant’s motion

to suppress because the Defendant was not in custody at the time of the search and his

statement was voluntarily given.

The Fifth Amendment to the United States Constitution, applicable to the states

through the Fourteenth Amendment, states that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” Similarly, the Tennessee Constitution

states “that in all criminal prosecutions, the accused . . . shall not be compelled to give

evidence against himself.” Tenn. Const. art. I, § 9. “Encompassed within both of these

constitutional provisions is the right to counsel, which is applicable whenever a suspect

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requests that counsel be present during police-initiated custodial interrogations.” State v.

Saylor, 117 S.W.3d 239, 244 (Tenn. 2003).

Under the Fifth Amendment, a confession is involuntary when it is the result of

coercive action on the part of the State. Colorado v. Connelly, 479 U.S. 157, 163-64

(1986). “‘The test of voluntariness for confessions under article I, § 9 of the Tennessee

Constitution is broader and more protective of individual rights than the test of

voluntariness under the Fifth Amendment.’” State v. Downey, 259 S.W.3d 723, 733-34

(Tenn. 2008) (quoting State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996)); State v. Smith,

834 S.W.2d 915, 918-19 (Tenn. 1992)). In order for a confession to be considered

voluntary in Tennessee, it must not be the result of “‘any sort of threats or violence, . . .

any direct or implied promise, however slight, nor by the exertion of any improper

influence.’” State v. Smith, 42 S.W.3d 101, 109 (Tenn. Crim. App. 2000) (quoting Bran

v. United States, 168 U.S. 532, 542–43 (1897)). In determining the voluntariness of a

statement, the trial court must look at the totality of the circumstances and decide if “‘the

behavior of the state’s law enforcement officials was such as to overbear petitioner’s will

to resist and bring about confessions not freely self-determined.’” State v. Kelly, 603

S.W.2d 726, 728 (Tenn. 1980) (quoting Rogers v. Richmond, 365 U.S. 534, 544 (1961)).

“A defendant’s subjective perception alone is not sufficient to justify a conclusion

of involuntariness in the constitutional sense.” Smith, 933 S.W.2d at 455 (citing State v.

Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994)). Police officers are only required to advise a

suspect of his Miranda rights prior to a custodial interrogation and Miranda warnings are

not required in non-custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 444, 478

(1966). In order to determine whether a person is in custody pursuant to Miranda, the

proper inquiry is “whether there [was] a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.” Stansbury v. California, 511

U.S. 318, 322 (1994) (internal citations and quotations omitted). Furthermore, the

custodial determination is based upon “whether, under the totality of the circumstances, a

reasonable person in the suspect’s position would consider himself or herself deprived of

freedom of movement to a degree associated with a formal arrest.” State v. Anderson,

937 S.W.2d 851, 855 (Tenn. 1996). “The warnings and waiver mandated by Miranda

‘are, in the absence of a fully effective equivalent, prerequisites to the admissibility of

any statement made by a defendant’ during custodial interrogation, whether inculpatory

or exculpatory.” State v. Northern, 262 S.W.3d 741, 749 (Tenn. 2008) (quoting Miranda,

348 U.S. at 476).

In denying the motion to suppress, the trial court determined that the recorded

conversation between Detective Demming and the Defendant reflected “an interview, not

an interrogation,” noting that the court had no reason to believe the Defendant’s

statements and actions were anything but voluntary. The court found that the Defendant

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seemed knowledgeable about what was happening, was selective about which questions

he answered, and that the conversation seemed mutual. The court stated that it did not

find any reason to believe the Defendant’s disability gave rise to a custodial environment.

The court ultimately found that the Defendant’s statement was voluntary, that the

conditions were not coercive, that the Defendant was not in custody, and that Miranda

warnings were not required. Upon our review, we conclude that the record fully supports

the determination of the trial court.

While the Defendant’s argument in support of suppressing his statements is not

entirely clear, he seems to suggest that his visual impairment created a per se custodial

environment. He also implies that his visual impairment alone rendered his statement

involuntary. The Defendant has not provided this court with any authority for this

proposition, nor have we found any. In its order denying the defendant’s motion to

suppress, the trial court found that “[t]here were no threats, promises, inducements, or

coercion by the police.” Moreover, the trial court accredited the testimonies of

Detectives Demming and Anderson who stated that the Defendant was not arrested, was

not in custody, and was free to leave at any time. The recorded conversation reflects that

Detective Demming identified herself, stated the reason for the officers’ presence, and

revealed the conversation between the Defendant and Detective Demming was mutual.

The Defendant chose which questions to answer, promoted the continuation of the

conversation, and the overall tone was calm and cordial. The record simply belies the

Defendant’s claims that he was not aware of the identities of the officers, was not free to

leave, or that Detective Demming’s questions were so coercive to deem his statements

involuntary. The trial court’s denial of the Defendant’s motion to suppress was proper.

Accordingly, he is not entitled to relief.

III. Sufficiency of the Evidence. The Defendant does not contest the sufficiency

of the evidence supporting his conviction of sexual exploitation of a minor for possession

of child pornography. Rather, he disputes his conviction of aggravated sexual

exploitation of a minor, and claims the State failed to establish that he knowingly

distributed child pornography. Because the shared folder on his computer was a default

setting on the file sharing program, he claims he was unaware of its existence or how to

change it. The Defendant argues the State failed to put forth evidence of distribution

“outside the fact that the file sharing program was capable for distribution” and Detective

Demming’s actual ability to download child pornography files from the Defendant’s

computer.

In response, the State contends that the evidence is sufficient to prove that the

Defendant knowingly distributed child pornography. The State argues that the Defendant

knew that his file sharing program had the ability to share files with other program users.

Recognizing this issue as one of first impression for this court, the State, relying on other

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state and federal authority, submits “that the use of a file-sharing network can support a

conviction for the distribution of child pornography.” The State argues that by choosing

the default settings and shared folder on the file sharing program, the Defendant was

aware that his files may be shared with, and thus distributed to, other users.

In resolving this issue, we apply the following well established standard of review.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and all

reasonable inferences which may be drawn from that evidence. State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the

evidence, the standard of review applied by this court is “whether, after reviewing the

evidence in the light most favorable to the prosecution, 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). Similarly, Rule 13(e) of the Tennessee Rules of

Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial

court or jury shall be set aside if the evidence is insufficient to support a finding by the

trier of fact of guilt beyond a reasonable doubt.” Guilt may be found beyond a

reasonable doubt in a case where there is direct evidence, circumstantial evidence, or a

combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.

1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1997); Farmer v. State, 208

Tenn. 75, 343 S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must evaluate the

credibility of the witnesses, determine the weight given to witnesses’ testimony, and

reconcile all conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

When reviewing issues regarding the sufficiency of the evidence, this court shall not

“reweigh or reevaluate the evidence.” Henley v. State, 960 S.W.2d. 572, 578-79 (Tenn.

1997). This court has often stated that “[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.” Bland, 958 S.W.2d at 659. A guilty verdict also

“removes the presumption of innocence and replaces it with a presumption of guilt, and

the defendant has the burden of illustrating why the evidence is insufficient to support the

jury’s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

When the State offers proof of guilt based on circumstantial evidence, the jury

decides how much weight to give 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.” Marable v.

State, 203 Tenn. 440, 313 S.W.2d 451, 457 (Tenn. 1958) (internal quotation and citation

omitted). This court may not substitute its inferences for those drawn by the trier of fact

in cases involving circumstantial evidence. State v. Lewter, 313 S.W.3d 745, 748 (Tenn.

2010) (citing Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (Tenn. 1956)). We

note that the standard of review “‘is the same whether the conviction is based upon direct

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or circumstantial evidence.’” State v. Handson, 279 S.W.3d 265, 275 (Tenn. 2009)

(quoting State v. Sutton, 166 S.W.3d 686, 689 (Tenn. 2005)).

In State v. Whited, our supreme court addressed the interpretation of Tennessee

statutes on the sexual exploitation of children, specifically the Tennessee Protection of

Children Against Sexual Exploitation Act of 1990, Tennessee Code Annotated sections

39-17-1001 to -1008 (“the Act”), which criminalized, among other things, the possession,

distribution, and production of child pornography. 506 S.W.3d 416, 427-28 (Tenn. 2016)

(citing Tenn. Code Ann. §§ 39-17-1003 to -1005; State v. Sprunger, 458 S.W.3d 482, 485

n.4 (Tenn. 2015)). It further explained that distribution (or possession with intent to

distribute) is charged as aggravated sexual exploitation, a Class C felony:

(a)(1) It is unlawful for a person to knowingly promote, sell, distribute,

transport, purchase or exchange material, or possess with the intent to

promote, sell, distribute, transport, purchase or exchange material that

includes a minor engaged in:

(A) Sexual activity; or

(B) Simulated sexual activity that is patently offensive.

Id. (citing § 39-17-1004(a)(1)) (internal quotations omitted). In determining whether a

person knowingly distributed the unlawful material, the statute further permits the trier of

fact to 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[.]” Tenn. Code Ann. § 39-17-1004(a)(3).

Accordingly, in order to prove aggravated sexual exploitation of a minor as charged in

this case, the State was required to show that the Defendant knowingly distributed or

possessed with the intent to distribute material that includes a minor engaged in sexual

activity. The statute does not contain a definition for distribution. As such, before

determining whether the evidence is sufficient to support the Defendant’s conviction of

aggravated sexual exploitation of a minor, we must first address the underlying question

of statutory interpretation.

In construing the meaning of “distribution” within the statute, we recognize that

our role is “‘to ascertain and give effect to the legislative intent without unduly restricting

or expanding a statute’s coverage beyond its intended scope.’” State v. Pickett, 211

S.W.3d 696, 700-01 (Tenn. 2007) (citing Houghton v. Aramark Educ. Res., Inc., 90

S.W.3d 676, 678 (Tenn. 2002) (quoting Owens 701 v. State, 908 S.W.2d 923, 926 (Tenn.

1995)). “Legislative intent is determined ‘from the natural and ordinary meaning of the

statutory language within the context of the entire statute without any forced or subtle

construction that would extend or limit the statute’s meaning.’” Id. (citing Osborn v.

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Marr, 127 S.W.3d 737, 740 (Tenn. 2004) (quoting State v. Flemming, 19 S.W.3d 195,

197 (Tenn. 2000)). “When the statutory language is clear and unambiguous, we apply the

plain language in its normal and accepted use.” Id. (citing Boarman v. Jaynes, 109

S.W.3d 286, 291 (Tenn. 2003) and State v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000)).

In resolving this issue, we must first acknowledge the plain meaning of the word

distribution. Black’s Law Dictionary defines distribute as “[t]o apportion; to divide

among several[;] [t]o arrange by class or order; [t]o deliver[;] [t]o spread out; [or] to

disperse.” Black’s Law Dictionary (10th ed. 2014). Merriam-Webster provides the

following definition: “to divide among several or many: deal out . . . to give out or deliver

especially to the members of a group.” Merriam-Webster’s Collegiate Dictionary (11th

ed. 2011). Under the Obscenity Statute, which immediately precedes the Act in our code,

and the Tennessee Pattern Jury Instructions, distribution means “to transfer possession of,

whether with or without consideration[.]” Tenn. Code Ann. § 39-17-901(3); 7 Tenn. Prac.

Pattern Jury Instr. T.P.I.-Crim. 34.04.

Next, while Tennessee courts have yet to define distribution for purposes of child

sexual exploitation laws, we are guided by the following authority from other

jurisdictions that have addressed this issue. In United States v. Shaffer, 472 F.3d 1219

(10th Cir. 2007), a federal agent downloaded multiple images and movies of child

pornography by using a peer-to-peer file sharing network. The files were downloaded

from the defendant’s computer and forensic examination later revealed 19 images and 25

movie files containing child sexual exploitation. Following his conviction for

distribution of child pornography, the defendant appealed, arguing that he could not be

convicted of distribution, but only the lesser charge of possession. The defendant argued

that his conduct of downloading images from a peer-to-peer network and storing them in

his shared folder only met the elements of possession. The Tenth Circuit Court of

Appeals disagreed and reasoned as follows:

We have little difficulty in concluding that Mr. Schaffer distributed

child pornography in the sense of having ‘delivered,’ ‘transferred,’

‘dispersed,’ or ‘dispensed’ it to others. He may not have actively pushed

pornography on Kazaa users, but he freely allowed them access to his

computerized stash of images and videos and openly invited them to take,

or download, those images. It is something akin to the owner of a self-serve

gas station. The owner may not be present at the station, and there may be

no attendant present at all. And neither the owner nor his agents may ever

pump gas. But the owner has a roadside sign letting all passersby know

that, if they choose, they can stop and fill their cars for themselves, paying

at the pump by credit card. Just because the operation is self-serve, or in

Mr. Shaffer’s parlance, passive, we do not doubt for a moment that the gas

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station owner is in the business of ‘distributing,’ ‘delivering,’ ‘transferring,’

or ‘dispersing’ gasoline; the raison d’etre of owning a gas station is to do

just that. So, too, a reasonable jury could find that Mr. Shaffer welcomed

people to his computer and was quite happy to let them take child

pornography from it.

Shaffer, 472 F.3d at 1223-1224.

Many other federal and state courts have followed the reasoning in Shaffer in

sustaining convictions for distribution of child pornography where the proof demonstrates

that the defendant maintained child pornography in a shared folder through a peer-to-peer

online network, knew that doing so would allow others to download it, and another

person actually downloaded it. See e.g. United States v. Budziak, 697 F.3d 1105, 1109

(9th Cir. 2012); United States v. Chiaradio, 684 F.3d 265, 281-82 (1st Cir. 2012)

(“distribution” occurs when an individual consciously makes files available for others to

take and those files are in fact taken); United States v. Richardson, 713 F.3d 232, 236

(5th Cir. 2013) (same); United States v. Husmann, 765 F.3d 169, 175 (3d Cir. 2014)

(noting that “no circuit has held that a defendant can be convicted of distribution [of child

pornography] in the absence of a download or transfer of materials by another person”);

United States v. Gorski, 71 M.J. 729, 734 (A. Ct. Crim. App. 2012) (military courts

uniformly require the same and decline to include incomplete transfers of possession

within the meaning of distribute as it relates to child pornography); Kelley v.

Commonwealth of Virginia, 289 Va. 463, 469, 771 S.E.2d 672, 675 (2015) (installation

and knowledge of peer-to-peer network which enabled others to download child

pornography established knowing distribution of child pornography).

We now join the majority of other courts and conclude without hesitation that the

Defendant’s actions in downloading the peer-to-peer file sharing network on his

computer, storing child pornography in his shared folder, and allowing others to

download child pornography from it meet the definition of distribution within the

meaning of the statute. The evidence unquestionably supports the Defendant’s

conviction of aggravated sexual exploitation of a minor. By consciously using a file

sharing program, the Defendant was aware that distribution of files through the program

was reasonably certain to occur simply by nature of the program. In the same way that he

accessed files from other users, he allowed access to and consequently distributed his

own files to other users. Furthermore, Detective Demming, acting as a FrostWire user,

was able to access and download the files that the Defendant stored in his shared folder.

The Defendant is not entitled to relief.

IV. Improper Closing Argument. The Defendant argues that the State made

improper assertions in its closing argument by arguing facts not in evidence and outside

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the scope of closing argument. The State argues that its closing argument was supported

by evidence put forth at trial and inferences made from that evidence. We agree with the

State.

During closing argument, the Defendant argued that he was not aware that his

child pornography files were capable of being shared. In rebuttal, the State referenced

the Defendant’s shared folder, titled “My Shared Folder,” where much of his child

pornography was stored. The State asserted that such a folder name would put the

Defendant on notice that the files stored in the shared folder would be shared with other

users of the file sharing program. Defense counsel objected to the State’s contention,

arguing that the State was alluding to facts not in evidence and arguing outside the scope

of closing argument. The trial court overruled defense counsel’s objection.

The Tennessee Supreme Court has noted that “[c]losing argument is a valuable

privilege that should not be unduly restricted.” State v. Stephenson, 195 S.W.3d 574, 603

(Tenn. 2006) (citing State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001)). The trial court has

substantial discretion in controlling the course of arguments and will not be reversed

unless there is an abuse of that discretion. Id. In addition, prosecutorial misconduct does

not constitute reversible error absent a showing that it has affected the outcome of the

trial to the prejudice of the defendant. Id. (citing Terry v. State, 46 S.W.3d 147, 156

(Tenn. 2001)). However, an attorney’s comments during closing argument “‘must be

temperate, must be predicated on evidence introduced during the trial of the case, and

must be pertinent to the issues being tried.’” State v. Gann, 251 S.W.3d 446, 459 (Tenn.

Crim. App. 2007) (quoting State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)). In order

to be entitled to relief on appeal, the defendant must “show that the argument of the

prosecutor was so inflammatory or the conduct so improper that it affected the verdict to

his detriment.” State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996).

In determining whether the prosecutor’s improper conduct could have affected the

verdict to the prejudice of the defendant, this court should consider the following factors:

“(1) the conduct complained of viewed in context and in light of the facts

and circumstances of the case; (2) the curative measures undertaken by the

Court and the prosecution; (3) the intent of the prosecutor in making the

improper statement; (4) the cumulative effect of the improper conduct and

any other errors in the record; and (5) the relative strength or weakness of

the case.”

State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (quoting Judge v. State, 539 S.W.2d

340, 344 (Tenn. Crim. App. 1976)); see State v. Goltz, 111 S.W.3d 1, 5-6.

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The Defendant takes issue with the State’s rebuttal closing argument where it

stated, “As an example, the file name is Desktop My Share Folder.” He contends that

most of his child pornography files “did not include the language ‘myfileshare’” and that

the State failed to establish that the files Detective Demming downloaded from the

Defendant’s computer came from a file titled “myfileshare.” Here, the proof clearly

established that the Defendant stored the majority of his 177 child pornography files in a

shared folder. The Defendant’s argument amounts to semantics-whether the State said

“myfileshare” or “My Shared Folder.” In our view, use of either phrase was neither

improper nor impacted the outcome of his trial. The Defendant is not entitled to relief.

CONCLUSION

Upon review, we affirm the judgments of the Putnam County Circuit Court.

____________________________________

CAMILLE R. MCMULLEN, JUDGE

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