Court of Criminal Appeals of Tennessee, Knoxville
Session November 15, 2016
from the Criminal Court for Knox County No. 104067 G. Scott
a jury trial, the Defendant, Robert Grisham, was convicted of
observation without consent, unlawful photography, and
especially aggravated sexual exploitation of a minor. In this
appeal of right, the Defendant challenges the following: (1)
the trial court's denial of his motion to suppress the
deleted files retrieved from his cell phone using
highly-sophisticated equipment; (2) the sufficiency of the
evidence supporting his conviction for especially aggravated
sexual exploitation of a minor, arguing that there was
insufficient proof of "sexual activity" by
"lascivious exhibition" on the video; and (3) the
trial court's enhancement of his sentencing term for
especially aggravated sexual exploitation of a minor to nine
years by utilizing the abuse of private trust enhancement
factor. In light of our supreme court's recent decision
in State v. Whited, 506 S.W.3d 416 (Tenn. 2016), we
conclude that the proof was insufficient to support the
element of sexual activity and are, therefore, required to
reverse and vacate the Defendant's conviction for
especially aggravated sexual exploitation of a minor.
However, because the proof is sufficient to support the
lesser-included offense of attempted especially aggravated
sexual exploitation of a minor, which was charged to the
jury, we remand this matter to the trial court for entry of
an amended judgment reflecting a conviction for attempt and
for resentencing on this modified conviction. The
Defendant's convictions for unlawful photography and
observation without consent are affirmed. Accordingly, the
trial court's judgments are affirmed in part and reversed
in part, and the case is remanded for a new sentencing
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed in Part and Reversed in Part; Case Remanded.
Deno Cole, Knoxville, Tennessee, for the appellant, Robert
Herbert H. Slatery III, Attorney General and Reporter; Lacy
Wilber, Senior Counsel; Charme P. Allen, District Attorney
General; and Ashley D. McDermott, Assistant District Attorney
General, for the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ.,
KELLY THOMAS, JR., JUDGE.
case stems from a hidden-camera video recorded by the
Defendant on his cell phone of his fourteen-year-old
step-daughter's ("the victim") showering in
their home's bathroom. Additionally, during a subsequent
search of the Defendant's phone, officers recovered two
still images of the Defendant's step-daughter naked and
four images allegedly showing digital penetration of a
six-month-old infant. Thereafter, on August 19, 2014, a Knox
County grand jury returned a twelve-count presentment against
the Defendant, charging him with three counts of especially
aggravated sexual exploitation of a minor; one count of
observation without consent; one count of unlawful
photography; and seven counts of sexual exploitation of a
minor. See Tenn. Code Ann. §§ 39-13-605,
-13-607, -17-1003, -17-1005.
Motion to Suppress Hearing
December 5, 2014, the Defendant filed a motion to suppress
the evidence obtained from his cell phone, arguing that
Knoxville Police Department ("KPD") Investigator
Keith Johnson, assigned to the "family crimes or special
crimes unit[, ]" "obtained [the] Defendant's
cell phone without a warrant and as a result of force,
threat, trickery, or coercion." The trial court held a
hearing on the motion, at which Inv. Johnson and the
Defendant's wife testified.
to Inv. Johnson, the initial August 8, 2014 complaint in this
case came from Halls High School personnel after they had
received information that a student's step-father had
videotaped her while getting in and out of the shower. Inv.
Johnson testified that, originally, a Knox County detective
went to the high school to investigate and made contact with
the victim. After the victim's disclosures, a "Child
Help" forensic interview was scheduled for later that
same day. During that interview, it was discovered that the
crime actually occurred in the City of Knoxville, so the case
was referred to Inv. Johnson.
Johnson maintained that, although the victim was unsure when
the recording was made, she had only recently become aware of
the video "when she heard her mother talking about
it." According to Inv. Johnson, the victim reported the
incident in "close proximity" thereafter.
evening, Inv. Johnson spoke with the Defendant and his wife
in the front lobby of the Family Justice Center
("FJC"). The Defendant's wife was already
present at the FJC when the Defendant arrived. Inv. Johnson
supposed that the Defendant drove himself "freely and
voluntarily" to the FJC because the Department of
Children's Services ("DCS") needed some
paperwork signed that concerned the couple's children.
Both DCS and Inv. Johnson's office were located inside
the FJC. Inv. Johnson described the FJC's lobby as a
waiting room with four or five chairs, "probably
[twenty-five] feet wide, probably [fifteen] feet long, "
with "two double doors in the front" and an
elevator. According to Inv. Johnson, the Defendant was not
placed in handcuffs at any time while they spoke, and he was
always free to leave.
investigator and a DCS case worker were also present with
Inv. Johnson when he talked with the Defendant and his wife
about the victim's allegations. As they were conversing,
the Defendant pulled his cell phone out of his bib overalls
to check his messages or answer a phone call. Inv. Johnson
admitted that he "grabbed" the cell phone from the
Defendant's hand without permission and that he then gave
cell phone to the other investigator to place it in Inv.
Johnson's office for safe keeping. Inv. Johnson stated
that he seized the cell phone from the Defendant because the
minor victim had said she had been filmed naked getting in
and out of the shower on that phone. According to Inv.
Johnson, the victim had also provided a description of the
Defendant's cell phone, and the phone that the Defendant
took out of his bib pocket matched her account. Inv. Johnson
testified that he "received the information about the
description of the phone and that the phone was used to do
the videotape" about thirty minutes prior to meeting
with the Defendant.
seizing the Defendant's phone, Inv. Johnson informed the
Defendant that he could either consent to a search of his
cell phone or that a warrant would be applied for to search
it. Inv. Johnson said that he then returned to his office for
approximately five to ten minutes to make sure the phone was
secured properly into evidence, thus, allowing the Defendant
"a moment to think about what he wanted to do[.]"
Ultimately, Inv. Johnson turned the Defendant's phone
over to the Internet Crimes Against Children unit
("ICAC"), and they conducted the search.
Inv. Johnson returned to the front lobby, the Defendant
"pretty quickly" agreed to give consent to search,
according to Inv. Johnson. Inv. Johnson said that he then
read aloud the consent form to the Defendant, that the
Defendant indicated his understanding of the form, and that
the Defendant thereafter signed it. Because Inv. Johnson was
now alone with the couple, the Defendant's signature on
the consent form was attested to and witnessed by his wife.
Inv. Johnson relayed that the Defendant left the FJC by
himself after signing the consent form.
Defendant's wife and the victim's mother, A.G.,
testified that she had three daughters, that the victim was
the middle child, that the older two were from a previous
marriage, and that the Defendant was the father of her
youngest. A.G. was at Halls High School on August 8, 2014,
"picking up supplies and stuff for a band event the next
day[, ]" when the victim entered the band room
accompanied by two females, one a DCS case worker named Rhea
Lundy. Ms. Lundy informed A.G. of the allegations the victim
made against the Defendant and A.G. Thereafter, the victim
and her older sister had to be taken to Child Help for
forensic interviews, so A.G. had to call her parents to
accompany the girls given that she was prohibited from being
4:00 p.m. that afternoon, A.G. received a phone call from Ms.
Lundy to come to the FJC "to discuss what was going to
go forward with the children." When A.G. arrived at the
FJC about thirty minutes later, she found her parents and all
three of her daughters in the lobby. Shortly thereafter, Ms.
Lundy escorted all of A.G.'s family into the elevator and
upstairs, and A.G. was left sitting alone in the lobby.
According to A.G., the Defendant showed up at the FJC
sometime around 5:15 or 5:30 p.m.
testified that Inv. Johnson, along with another investigator,
came and sat down and talked with her and the Defendant about
the victim's allegations, which involved the video on the
Defendant's cell phone of the victim while showering.
A.G. was asked about the circumstances surrounding Inv.
Johnson's seizure of the Defendant's cell phone:
[His] cell phone went off, it just vibrates, no ringtone to
it, so he was trying to silence it, took it out of the bib
pocket of his overalls, and as he was turning it off[, Inv.]
Johnson asked him if that was his cell phone and he said-my
husband said, "Yes", and [Inv. Johnson] grabbed it
forcibly out of his hand, handed it off to the other
investigator with him, and she took it out of the room at
that time, and he told us that we would not be getting the
phone back until it had been searched.
A.G. testified that they asked for the phone back "as
soon as" Inv. Johnson took it, but "he made it very
clear it would not be given back to [them]" either until
voluntary consent had been given or a search warrant had been
obtained and the phone searched. She claimed that they asked
for the phone back several times while at the FJC.
to A.G., Inv. Johnson explained to them that he would not be
able to obtain a search warrant until Monday morning because
it was already "after hours on Friday, " but if
they "wanted to expedite the process and get [their]
children back sooner[, ]" then the Defendant should
"go ahead and sign a consent form allowing . . . them to
search the phone." A.G. testified that Inv. Johnson
referenced "speed[ing] the process along" to get
the girls home faster "a couple of times" during
their conversation. Additionally, A.G. estimated that it was
"more like [thirty] minutes" that Inv. Johnson was
gone to his office after seizing the phone. She based this
belief on the facts that the Defendant was self-employed as
an "electrician in heating and air, " that they
asked Inv. Johnson to find out if they could get the business
information off of the Defendant's phone and if they
could get the number transferred to another phone so the
Defendant could continue to conduct business, and that Inv.
Johnson "was gone for a while to get all those
the time A.G. and the Defendant were alone while Inv. Johnson
was away in his office, she and the Defendant discussed
whether the Defendant should sign a consent form based upon
"what was on the phone and what might not be on the
phone[.]" According to A.G., although the Defendant was
aware that "there was a video that had been made like
they were alleging[, ]" he also knew that the video had
been deleted off of the cell phone. Furthermore, A.G.
admitted that she had previously seen the video on June 21,
2014, and that she was the one who had deleted the video at
that time. She said that she deleted the video to keep it
from "fall[ing] into the wrong hands." Nonetheless,
A.G. acknowledged, "[W]e figured it was possible [the
video] could be recovered." The Defendant did not admit
to her that any other questionable items were on his cell
phone. If there was other material, it "was deeply
hidden, " according to A.G., "somewhere that a
normal person couldn't get to."
said that, when Inv. Johnson returned to the FJC lobby, they
again discussed signing a consent form, but the Defendant
only agreed when Inv. Johnson told them they were not getting
the phone back "no matter what[.]" A.G. believed
that it was around 7:00 p.m. when the consent form was
signed. After signing, they asked if the Defendant was
allowed "to leave so that he could go to U.S. Cellular
before they closed and get another cell phone[, ]" and
Inv. Johnson answered affirmatively. However, they did not
feel free to leave, according to A.G., because they were
still working with Ms. Lundy on signing papers giving
A.G.'s parents temporary custody of the children, and Ms.
Lundy told them they "were not free leave until all
[that] paperwork had been signed." Moreover, the doors
were locked because "it was after hours at that point[,
]" A.G. testified, and "no one could walk in unless
they [had] a badge or key[.]"
recording of the couple's interactions with Inv. Johnson
while signing the consent form was played for the court. We
glean from the record that there were two conversations
taped-one approximately five minutes in length and one
approximately nine minutes in length. Apparently, during one
conversation, the time was noted as 7:45 p.m., and Inv.
Johnson commented, "Since there's nobody else here
with me, will you sign this as the witness?" A.G.
testified that they did not know they were being recorded and
that she was just learning of this at the suppression
listening to the recording, A.G. confirmed that she had
interacted with ICAC approximately three years earlier. A.G.
said that she contacted ICAC when she intercepted a
communication from an eighteen or nineteen-year-old boy to
the victim, who was eleven at the time, "requesting her
to send nudes of herself to him." Although ICAC
took the phone, "they did nothing, " according to
A.G., and no report was ever filed. The Defendant was aware
of this prior experience with ICAC.
conclusion of the hearing, the trial court denied the
Defendant's motion to suppress the evidence. The case
proceeded to trial.
outset, the State dismissed three counts of sexual
exploitation of a minor, leaving four counts of that offense.
The Defendant proceeded to a trial by jury on the remaining
nine counts-Count 1, especially aggravated sexual
exploitation of a minor, involving the video of the victim;
Count 2, especially aggravated sexual exploitation of a
minor, involving one of the naked still images of the victim;
Count 3, especially aggravated sexual exploitation of a
minor, involving the other naked still image of the victim;
Count 4, observation without consent; Count 5, unlawful
photography; and Counts 6 through 9,  sexual exploitation of a
minor, involving the four pictures of an alleged
six-month-old infant's vagina in various stages of being
Police investigation and forensic evidence.
Johnson provided much of the same testimony on direct
examination at trial regarding his interactions with the
Defendant and A.G. at the FJC. Additionally, Inv. Johnson
testified that he asked the Defendant if he had a video of
the victim naked on his phone, and the Defendant replied
"that there would not be anything on the phone."
According to Inv. Johnson, the Defendant never admitted that
there was a video on the phone and never provided any
explanation for making such a video.
cross-examination, Inv. Johnson was asked to read a portion
of the consent form signed by the Defendant: "These
officers are authorized by me to secure phone call history,
phone contact list, photos, videos and text messages
contained on my phone." Defense counsel asked Inv.
Johnson, "[W]ouldn't you agree that it would be a
fair interpretation from [the Defendant's]
standpoint" that the search would be limited to
"what's set forth in the consent form[?]" Inv.
Johnson replied, "I mean, you know, everybody feels
differently, but . . . most people would assume that that
would mean anything that is there on the telephone."
During re-direct, Inv. Johnson clarified that the Defendant
was informed that there would be "a complete
examination" of his cell phone.
Scott Sheppard testified that he had worked in ICAC since
2007, and he provided his credentials concerning computer
forensics of mobile devices. Sgt. Sheppard received the
Defendant's phone from Inv. Johnson, who had asked him to
examine the phone for a video of a minor red-headed
his examination using "XRY" software for mobile
devices, Sgt. Sheppard discovered two "thumbnail"
images of a red-headed teenager naked in a bathroom.
According to Sgt. Sheppard, these two images were on the
phone's "internal memory" and were "last
modified" approximately four minutes apart on November
16, 2013. Sgt. Sheppard explained what he meant by last
Modified date can be any user. Actually the operating system
can sometimes make modifications of files, but usually on a
mobile system that's a user input modification. . . . If
you go in to delete a file, if you make any change to a file,
the operating system knows the date and time that it was
two thumbnail images reflected some movement indicating to
Sgt. Sheppard that they were part of a video. Because Sgt.
Sheppard could not also find the same full-size images on the
phone, he opined that they had been deleted.
learning that the victim had a distinctive birthmark on her
leg, Sgt. Sheppard found another thumbnail image of the
victim on the phone's memory. It was a picture that was
taken from a side angle of the victim's lower torso and
legs while she was in a seated position. The victim's
birthmark and clothed buttocks and genital area could be seen
in the photograph. The deleted image did not have any data
stored with it.
Sgt. Sheppard located on the phone's "SD
card" four "carved raw" images
allegedly "of an infant['s] . . . vagina being
spread open by an adult female hand." Sgt. Sheppard
believed, based upon his familiarity with looking at child
pornography as part of his job, that the female infant in the
pictures was around six months old. Sgt. Sheppard also found
five pictures of an adult male seated on a red chair
masturbating. All nine of these pictures had likewise been
deleted and did not have any data stored with them.
Sheppard confirmed that there were "thousands of
pictures" on the Defendant's phone, some of which
included family photographs, album art, and electrical
photographs. He could only state that the video was modified
on November 16, 2013, but he could not provide a date for the
video's creation because it had been deleted and there
was no data stored with it. Also, he acknowledged that
"a regular person" would not be able to recover the
deleted images without access to very expensive software.
Sheppard also searched the phone's internet history and
determined that approximately twelve pornography websites
were visited on October 22, 2013. Sgt. Sheppard compiled a
list of the websites, including "several that referenced
naked redheaded teens[, ]" and that list was admitted
into evidence. For example, Sgt. Sheppard found a visit to
which was accessed twice through an application on the phone
called "BaDoink." Sgt. Sheppard explained that the
websites were visited only once or twice and only on this
solitary day. Additionally, all of the sites were accessed
during a twenty-two-minute time period in the morning after
9:00 a.m,  according to Sgt. Sheppard.
Sgt. Sheppard testified that a phone's internet history
was only "kept in the phone[, ]" not on an S.D.
card. Sgt. Sheppard confirmed that a site titled
was also in the Defendant's internet history, having been
visited on December 10, 2013.
Sheppard gave the phone's S.D. card to another technician
with ICAC, Shannon Morris. Ofc. Morris's credentials
concerned examining "computer hard drives" on
"SD cards, digital cameras, cell phones." Ofc.
Morris used "EnCase" software to recover the
deleted twenty-seven-minute video of the victim's
showering. In addition, Ofc. Morris discovered a second
deleted recording made in the home's bathroom. This video
was only several seconds long and showed the lower portion of
the Defendant's body, dressed in the same clothes as in
the first video, and hygiene items were displayed on the
bathroom sink. Both videos were played for the jury.
Morris confirmed that there was no identifying "metadata
on either of those videos[.]" Ofc. Morris also agreed
that highly expensive equipment was needed to retrieve the
recordings off of the S.D. card.
to Ofc. Morris, an individual could change his or her
phone's settings to save internet history onto an S.D.
card, but Ofc. Morris did not examine the Defendant's
S.D. card for web history. Ofc. Morris explained that, if you
transfer an S.D. card from one device to another, then
"[a]nything that's saved on the S.D. card" will
now be accessible on the new phone, but the data remains on
the S.D. card unless downloaded.
when asked how "Google Chrome works, " if it
"allow[ed] [someone] to save web history on one device
and then open it up on another device and . . . see the
history where [he or she] went[, ]" Ofc. Morris
responded, "If you're signed in under your Gmail
account." Ofc. Morris also agreed that the following
scenario was plausible:
[I]f you have multiple Chrome accounts; like, for instance,
I've got a Gmail account and my wife has a Gmail account
and I go to ESPN and start looking up sports and on-and I do
it on a shared home computer, okay. And say my wife goes and
looks at Auburn football . . ., and she looks at it in Google
Chrome on her phone
"that Auburn football search" could "show up
in the computer or vice versa[.]" However, Ofc. Morris
reiterated that the web history in this case was not obtained
from the Defendant's S.D. card because it was not
searched for web history. Ofc. Morris further explained that
a phone would store the internet history of the user that was
"signed in" or, if no one was signed in, "then
it just keeps its own web history in the phone."
victim, who was fifteen-years old at the time of trial,
identified the Defendant as her step-father and testified
that he had lived with the victim and her family since she
was one. The victim described the family's house as
approximately eight-hundred square feet in size, with a
kitchen, living room, one bathroom, and two bedrooms. The
home's only bathroom had a standing shower. There was
shelving above the toilet where the camera was hidden, but
there was also shelving next to the shower. When the opaque
shower curtain was closed, it covered both the shower and the
shelving next to it.
to the victim, she first learned that the Defendant had
recorded her showering when she heard her mother and the
Defendant in their bedroom arguing about the video one Sunday
morning. The victim confirmed that she had previously told
her mother that the Defendant was texting another woman and
that her mother and the Defendant were also arguing about
those text messages in addition to the video. The victim said
that the Defendant did not respond when her mother
"asked him why he had been videoing [the victim] in the
bathroom." However, the Defendant did inquire of her
mother how she obtained his phone's passcode, and her
mother "said it didn't matter." When the victim
went to use the bathroom, she looked into their bedroom and
saw the Defendant "on top of" her mother trying to
"get the phone" away from her. Because the victim
was angry, she went into the bedroom and punched the
Defendant. After her mother told her to leave, they shut the
door, so the victim could no longer hear what was going on
victim testified that her mother never called the police or
DCS nor did she make the Defendant leave the house. According
to the victim, her mother advised her to "not talk about
it and that she would help [the victim] get through it and
everything would be okay." The victim said that she
tried to avoid being at home alone with the Defendant after
she heard about the recording.
the victim relayed details of another instance when she and
her mother discussed the video. The victim was eating alone
at a Taco Bell restaurant and her mother called. Her mother
"told [the victim] that [she] was being irresponsible by
not being with [her] sister and just going off by
[her]self[.]" The victim said that she "kind of
yelled at her [mother] and told her not to talk about
irresponsibility" and then brought up the video.
According to the victim, her mother replied "that that
was a different story[.]"
victim estimated that she learned about the video
approximately a month and a half before the first day of
school, which was August 8, 2014. On that day, the victim was
called into her school's office to speak with a DCS case
worker and a police officer. After they asked the victim a
few questions about her step-father, the victim, at their
request, escorted the officers to her mother who was also
present at the school. The victim described that, when her
mother saw her, she looked "disappointed at [her.]"
Thereafter, the victim's grandparents took her to Child
Help where she was interviewed.
victim identified herself in the three thumbnail images found
on the Defendant's phone. However, the victim
acknowledged that she frequently went through the
Defendant's phone, that she and the Defendant had
exchanged S.D. cards, that she sometimes used his phone to
take photographs, and that she might have "look[ed]
stuff up on his phone." Furthermore, she confirmed that
the family used Google Chrome on their home computer and
victim agreed that she frequently took pictures of herself,
known as "selfies, " and that it was
"possible" that she could have used the
Defendant's phone to take some of these photographs,
although she could not recall any instances specifically. The
victim testified that she had taken selfies while in the
bathroom and averred that it was "possible" that
she took the two pictures of her naked in the bathroom. She
explained that she sometimes captured "selfies using a
delayed click feature on [her] phone[, ]" which allowed
her to take pictures from farther away. However, according to
the victim, she did not take the picture showing the
birthmark on her leg. She proclaimed that she did not give
permission for anyone to take pictures of her in the
bathroom. Moreover, the victim asserted that she never let
the Defendant take photographs of her while she was in a
state of undress and that she never purposely let him
videotape her without her clothes on. The victim also agreed
that the Defendant had never directed her to take selfies.
she asserted that she never used the Defendant's phone to
take a naked picture of herself and that she had never used
his phone to take a selfie in the bathroom. The victim
further testified that she did not put the camera in the
bathroom to record her while she showered, that she never had
any pictures of a baby's vagina, and that she never
viewed pornography websites.
The Defendant's proof.
Atkins testified on behalf of the Defendant, whom she had
previously dated for "quite a while." Although Mrs.
Atkins was married with three children, she exchanged sexual
text messages with the Defendant prior to June 2014. When the
Defendant's wife sent her a text message asking her to
stop texting the Defendant, she "respected that and that
brought an end to it."
Atkins viewed the four images allegedly of a baby's
vagina being penetrated by a female hand. She claimed that
the pictures were of her genitalia, not a baby's.
Moreover, she identified the ring in the images as belonging
to her, which was the same ring she was wearing at trial.
According to Mrs. Atkins, those pictures "were created
spur of the moment without much thought to them." She
averred that she sent those images when she and the Defendant
were sending text messages back and forth, which was
approximately one to two years before the April 2015 trial.
also shown the five photographs of an adult male
masturbating. Mrs. Atkins identified the Defendant's
penis in the pictures, and she claimed that he sent those
images to her at the "exact same time" time she
sent the pictures to him of her vagina.
Ham, a licensed private investigator, went to the
Defendant's home and surveyed the home's only
bathroom, which he described as "not very big at
all" and in "a lot of disrepair . . . from the
moisture and the mildew[.]" The bathroom measured
approximately five-by-five or six-by-six feet. Mr. Ham
understood that the camera in this case was placed on the
shelving above the toilet angled "in a downward
fashion[.]" Mr. Ham opined that, if someone wanted to
voyeuristically look at an individual while showering in that
bathroom, then "a much better location" to position
the camera would have been on the shelving next to the
shower. However, he agreed ...