Court of Criminal Appeals of Tennessee, Nashville
Session Date: February 10, 2015
Appeal from the Circuit Court for Williamson County No. II-CR0026236 James G. Martin, III, Judge
Vermaine M. Burns ("the Defendant") was convicted of several sexual offenses, all stemming from illicit Facebook chats ("chats") and emails between himself and the victim, K.P. On appeal, the Defendant raises three issues: (1) whether the trial court abused its discretion by admitting into evidence the Defendant's chats with the victim and an emailed photo of a penis; (2) whether the evidence was sufficient to support the jury's finding that the Defendant was the author of the communications; and (3) whether the trial court erred by prohibiting the Defendant from referring to a fake Facebook profile created by the Defendant's stepdaughter. After a review of the record and applicable law, we affirm the judgments of the trial court.
Carrie Searcy (at trial and on appeal) and Carla Arevalo (at trial), Nashville, Tennessee, for the appellant, Vermaine M. Burns.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Kim R. Helper, District Attorney General; and Mary Catherine White, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
I. Factual and Procedural Background
The Williamson County Grand Jury indicted the Defendant for four counts of solicitation to commit aggravated statutory rape, two counts of attempted solicitation of sexual exploitation of a minor, one count of solicitation to commit especially aggravated sexual exploitation of a minor, and one count of exploitation of a minor by electronic means.
At trial, the victim's mother, Melanie Conley, testified that the Defendant was her cousin. At the time the offenses occurred, both the Defendant and K.P. had Facebook accounts, and Ms. Conley was a "Facebook friend" with the Defendant.
In June 2010, Ms. Conley received an email from Facebook containing a message that had been sent to K.P.'s Facebook account from the Defendant's Facebook account, asking K.P. to take pictures of her body and to send them to the author of the message. Upset, Ms. Conley looked at K.P.'s computer where K.P.'s Facebook account was still open. There, Ms. Conley found more messages of a similar nature and replies from K.P. indicating that "she was uncomfortable" doing the things she had been asked to do.
Ms. Conley took a screen shot of the messages on K.P.'s Facebook account. Each message bore the name and photo of the Defendant. The last conversation was time-stamped 12:25 a.m. Ms. Conley understood the messages captured in the screen shot to indicate that K.P. had sent the photos of herself and the author was asking if K.P. wanted a photo of himself. In this conversation, K.P. gave her Yahoo email address (the "Yahoo email address" or "Yahoo account"), and Ms. Conley confirmed that the given email address was consistent with Ms. Conley's memory of what K.P.'s email address was at the time. Ms. Conley confronted K.P. about the messages. She also confronted the Defendant, and "things got heated." Later that same day, Ms. Conley contacted the Spring Hill Police Department, who took possession of K.P.'s computer.
On cross-examination, Ms. Conley stated that the Defendant became aggressive when she confronted him about the messages. Ms. Conley stated that she knew K.P. and the Defendant were "Facebook friends" at the time of the offense. She also knew the Facebook account sending the messages belonged to the Defendant. When asked if she had told anyone that she believed that someone other than the Defendant could have sent the messages, Ms. Conley responded, "I did say that I wasn't sitting there beside the person who sent it, so, I mean, it's a possibility." Apart from the messages found on K.P.'s Facebook account, Ms. Conley had never seen the Defendant make any inappropriate comments or behave inappropriately toward K.P.
Detective Michael Foster of the Spring Hill Police Department testified that K.P.'s mother gave him the screen shot of the chat between K.P. and the Defendant. He also took possession of the victim's laptop computer and brought it to the Franklin Police Department Internet Crimes Against Children task force ("ICAC") in order for ICAC to "perform an image" of the hard drive on K.P.'s computer.
Detective Foster, along with other ICAC officers, executed a search warrant at the Defendant's home. Detective Foster participated in an interview of the Defendant during the execution of the search warrant. During that interview, the Defendant told officers that he did not have his own internet connection and instead used an unsecured network in the neighborhood. He also admitted to having a Facebook account as well as a Hotmail email address (the "Hotmail account" or "Hotmail email address"). He informed the detectives that he used his Facebook account to play a game called Mafia Wars.
To assist ICAC, Detective Foster subpoenaed records for both the victim's Yahoo account and the Defendant's Hotmail account. The records for both accounts showed who created the account and included a "log in history" for June 2010, which detailed the dates and times that the account was accessed along with the internet protocol ("IP") addresses used to access the account. Detective Foster explained that, whenever a computer accesses the internet, it has a signature IP address, which is attached to an internet service provider. That IP address can then be used to determine the exact location of the computer at the time it accessed the internet (e.g., a person's home or a Starbucks).
On cross-examination, Detective Foster admitted that he could not determine from looking at the screen shot of the chats who had accessed either of the two accounts when the chats were sent. Detective Foster also confirmed that the Defendant was "very cooperative" when they executed the search warrant, and the Defendant denied ever sending photos or "chatting" with K.P.
ICAC Detective Stephanie Cisco participated in the execution of the search warrant on the Defendant's home and was tasked with photographing the rooms of the home and collecting evidence. At the time the search warrant was executed, the Defendant was the only person in the home. In the master bedroom, Detective Cisco found a computer that was turned on with the Defendant's Hotmail open on the screen, several cell phones, and a T-Mobile cell phone bill. Additionally, a résumé found on the computer listed the Defendant's name, the Hotmail email address, and the Defendant's cell phone number.
One of the cell phones recovered was a T-Mobile Blackberry. When Detective Cisco found the phone, it was turned on, and if one of the buttons on the phone was pressed, a photo of the Defendant's face appeared as the background for the phone's screen. A T-Mobile cell phone bill found at the scene indicated that it was a statement for a Blackberry owned by the Defendant and contained the Defendant's telephone number.
Detective Cisco examined the Blackberry at the ICAC lab and found a subscriber identity module ("sim") card and a micro S.D. card inside the phone. The micro S.D. card contained pictures of the Defendant. Additionally, the Hotmail email address appeared at the bottom of the Blackberry's screen. Detective Cisco explained that the presence of that email address on the screen meant that the Hotmail account was registered to that Blackberry and any email sent to the Hotmail account would automatically appear on his phone. Detective Cisco confirmed that the Hotmail account registered to the phone was the same account that was open on the computer found in the master bedroom of the Defendant's home. Detective Cisco then turned the phone over to another detective in order to retrieve information that had been deleted from the phone's memory prior to its examination.
On cross-examination, Detective Cisco stated she found the Blackberry next to the computer on the desk. She confirmed that the Blackberry was not password protected. When the Blackberry was found, icons on the screen indicated that it had a signal, and the phone bill found at the scene indicated that it was active and could be used. However, Detective Cisco explained that she turned the signal off when she began examining the phone in the lab to prevent anyone from remotely wiping the data stored on the phone. Detective Cisco explained that she came to the conclusion that the Blackberry had cellular service when she found it because of a symbol that appeared on the phone's screen that she understood to mean the phone had cellular service. When she turned the signal off in the lab, that symbol no longer appeared on the phone's screen. But, in order to determine if the phone had cellular service on one day but not another, Detective Cisco said she would have to examine the phone bill.
ICAC Detective Brett Kniss testified that he was trained to conduct computerized forensic examinations and had completed "undercover chat training, " during which he learned how to create fictitious Facebook accounts and pose as a minor to entice suspects. Through that process, he learned how Facebook operates. Additionally, Detective Kniss had reviewed the law enforcement manual published by Facebook.
When Detective Kniss received the victim's laptop from Detective Foster, he examined the hard drive for evidence of chats and photos that were allegedly sent by the Defendant. Detective Kniss explained that a Facebook chat can be sent between users who are already "Facebook friends" and operates like an instant message, allowing users to communicate in real time via the Facebook server. Chats can be "cleared" by the user and deleted off their Facebook page. Once the chats are deleted, the user cannot access the chats via their Facebook account. However, Detective Kniss was able to retrieve evidence of the chats from the hard drive of K.P.'s computer. Along with the content of the chat, Detective Kniss recovered the user ID numbers for the Facebook accounts, the sender and receiver of each chat message, and the date and time each chat message was sent. Detective Kniss copied all of the chats between K.P. and a Facebook account bearing the Defendant's name into an Excel spreadsheet so they could be organized chronologically.
K.P.'s and the Defendant's names were listed as the user names associated with the Facebook accounts in the chats found on K.P's hard drive. Detective Kniss verified the Defendant's user name and user ID number through records from Facebook. Detective Kniss also used an undercover Facebook account to find the Defendant's Facebook account and verified that the profile picture and the user ID associated with that account matched the picture and user ID recovered from the chats on K.P.'s laptop. Additionally, the Hotmail email address was displayed on the Defendant's Facebook account.
During her interview with Detective Kniss, K.P. had described a photo of a black man's penis that the Defendant allegedly sent to her. Detective Kniss found a photo consistent with K.P.'s description during a search of the hard drive of K.P.'s laptop. The time-date stamp on the image also matched the date and time of the chats found on K.P.'s computer. Similarly, the log in records for K.P.'s email account corresponded with the time-date stamp on the image.
K.P. also told Detective Kniss about photos she had sent to the Defendant's Hotmail email address provided to K.P. in the Facebook chat. Detective Kniss found photos matching the description given by K.P. during his search of the hard drive of K.P.'s laptop. Detective Kniss discovered that the email address on the Defendant's résumé found during the execution of the search warrant was the same email address to which K.P. had been directed to send photos.
Detective Kniss testified that the desktop computer found at the Defendant's home accessed the internet, email, and Facebook through an unsecured internet signal in the neighborhood.
Detective Kniss also searched the Defendant's computer hard drive for Facebook chats between the Defendant and K.P., and he found the "exact" chats that he had previously found on K.P.'s computer-the user IDs, names, dates, and times all matched the chats found on K.P's computer. All the chats bore the names of the Defendant and K.P.
In a chat starting at 11:10 p.m. on June 11, 2010, and continuing into the early hours of June 12, 2010, the sender opened the conversation by referring to K.P. by a nickname and asking about several members of her family. The sender also asked, "What time are y'all leaving in the morning? Ain't the trip tomorrow?" K.P. responded by saying, "The trip ain't tomorrow." The sender also asked K.P. whether she played Mafia Wars. Several times in the chat, the sender referenced that he or she was aware of K.P.'s age and that he or she was worried about getting into trouble for his conversations with her. Throughout their conversation, the sender repeatedly asked to K.P. to delete their chat and expressed apprehension about the consequences that could come from conversations with K.P.
Eventually, their conversation turned to sexual topics. The sender asked K.P to describe her pubic hair; whether she was aroused; and whether she would perform oral and vaginal sex. In the midst of this conversation, the sender also wrote, "You young and you my cuz [sic]. Yeah, for you I could get locked up." Detective Kniss understood this communication to mean that the sender knew K.P. was underage and also that the sender was related to K.P. The sender and K.P. also discussed how they might meet in person. The sender suggested that K.P. tell her mother that she wanted to "go hang with [K.W.]" At the time, the Defendant had a stepdaughter named K.W. who lived in his home.
The sender asked K.P. to send photos of her vaginal area to the Defendant's Hotmail email address. K.P. refused and told the sender she was not comfortable sending such photos. Even though K.P. refused to send the photos of her vaginal area as the sender requested, the chats indicated that she did send some photographs to the Hotmail email address. When the sender received one of the photos, he or she responded, "Come on. What's that? Do better . . . Take the same pic, but take your clothes off." The sender also instructed K.P., "You need to finger f yourself right now and tell me when you [sic] coming [sic] . . . When you come [sic] on your fingers, ...