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State v. Grisham

Court of Criminal Appeals of Tennessee, Knoxville

May 5, 2017


          Session November 15, 2016

         Appeal from the Criminal Court for Knox County No. 104067 G. Scott Green, Judge.

         Following 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 hearing.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part and Reversed in Part; Case Remanded.

          R. Deno Cole, Knoxville, Tennessee, for the appellant, Robert Grisham.

          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.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ., joined.


          D. KELLY THOMAS, JR., JUDGE.


         This 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.

         I. Motion to Suppress Hearing

         On 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.

         According 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.

         Inv. 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.

         That 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.

         Another 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.

         After 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.

         When 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.

         The Defendant's wife and the victim's mother, A.G., [1] 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 involved.

         Around 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.

         A.G. 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.

         According 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 answers."

         During 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."

         A.G. 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[.]"

         A 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.[2] 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 hearing.

         After 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."[3] 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.

         At the conclusion of the hearing, the trial court denied the Defendant's motion to suppress the evidence. The case proceeded to trial.

         II. Trial

         At the 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, [4] sexual exploitation of a minor, involving the four pictures of an alleged six-month-old infant's vagina in various stages of being digitally penetrated.

         A. Police investigation and forensic evidence.

         Inv. 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.

         On 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.

         Sergeant 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 female's showering.

         During 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:

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 modified.

         These 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.

         After 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.

         Furthermore, Sgt. Sheppard located on the phone's "SD card"[5] 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.

         Sgt. 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.

         Sgt. 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, [6] according to Sgt. Sheppard.

         Furthermore, 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.

         Sgt. 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.

         Ofc. 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.

         According 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.

         Finally, when asked how "Google Chrome[7] 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."[8] 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

         then "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."

         B. Victim's testimony.

         The 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.

         According 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 inside.

         The 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.

         Additionally, 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[.]"

         The 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.

         The 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 laptop.

         The 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.

         Regardless, 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.

         C. The Defendant's proof.

         Shelia 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."

         Mrs. 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.

         She was 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.

         Thomas 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 ...

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