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Sprunger v. State

Court of Criminal Appeals of Tennessee, Knoxville

July 10, 2017


          Assigned on Briefs April 26, 2017

         Appeal from the Criminal Court for Cumberland County No. 09-0212 David Patterson, Judge

         The Petitioner, Charles D. Sprunger, appeals the Cumberland County Criminal Court's denial of his petition for post-conviction relief from his 2010 conviction for sexual exploitation of a minor and his eight-year sentence. The Petitioner contends that (1) he was denied his right to trial counsel of his choice because his "untainted" real property was seized before the trial pursuant to the civil asset forfeiture statutes and (2) he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

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

          Jonathan R. Hamby, Crossville, Tennessee, for the appellant, Charles D. Sprunger.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Amanda Worley, Assistant District Attorney General, for the appellee, State of Tennessee.

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



         This case arises from the Petitioner's possessing more than 100 images depicting minors engaged in sexual activity. The Petitioner appealed his conviction, and this court affirmed the conviction and summarized the facts of the case as follows:

On July 6, 2009, the defendant was indicted by a Cumberland County Grand Jury for aggravated sexual exploitation of a minor based on the discovery on his computer of more than 100 images of minors engaging in sexual activity after he took the computer to a repair business. The trial court subsequently amended the indictment, reducing the charge to sexual exploitation of a minor.
At the defendant's August 19, 2010 trial, Tammy Arellano testified that in July 2008 she was working for a certified public accountant in Crossville. The accountant's stepson, McKinley Tabor, rented a space in the office for his computer repair business. Ms. Arellano said that her desk was positioned in a manner so that anyone coming to Tabor's office had to pass by her. She said that the usual practice for Tabor's customers was to leave their computers with their name and telephone number on a table located in front of her against the wall beside Tabor's office. On July 8, 2008, the defendant came in with his computer, saying he had talked to Tabor on the phone. The defendant placed the computer on the designated table and attached a note with his name and phone number.
McKinley Tabor, an outsourced IT manager, testified that he provided computer repair and consulting services, primarily for corporations. He also had a small office where individuals brought their computers for repair. On July 4, 2008, Tabor received a phone call from a man who identified himself as "Chuck" and said that he needed Tabor to restore data from the hard drive of his computer. Tabor told the man to bring the computer to his office the following Monday morning. The man telephoned Tabor at 1:00 p.m. that Monday and gave him the password so he could start the computer. While the computer was starting up, Tabor and the man discussed what material he wanted Tabor to restore. Tabor then noticed an icon on the computer indicating that files were waiting to be written to CD. The man asked Tabor to restore a specific program, as well as a Microsoft Money file. While the man was still on the phone, Tabor opened a folder on the computer to see if it contained the missing program. However, the folder actually contained photographs of "what appeared . . . to be pre-pubescent girls engaged in sexually suggestive poses and one of them appeared to be engaged in a sex act with an adult." Tabor told the man he would call him back later and then notified the police. After the police arrived, the folder containing the files waiting to be written to CD was opened, and it contained images of the same nature as the ones Tabor had found earlier. Tabor turned the computer over to Investigator Haynes.
Investigator John Haynes with the Cumberland County Sheriff's Department testified that he went to Tabor's repair shop on July 8, 2008, to investigate "a computer there with . . . possible child pornography images on it." Tabor hooked up the computer and "brought up a page of images that appeared to be young people, eight, ten, twelve, fourteen years old, engaged in various sex acts and some in erotic poses." Investigator Haynes identified in court the computer he received from Tabor's shop and said that he subsequently delivered it to the Tennessee Bureau of Investigation ("TBI") for forensic analysis.
Melanie Garner, a special agent criminal investigator in the Technical Unit of the TBI, testified that she became a certified computer examiner in 2007. She conducted a forensic analysis on the defendant's computer and found several folders containing sexually explicit images of young children. The images were found in a backup folder dated April 7, 2008, on the main drive of the computer under "owners documents." The images were shown to the jury. Garner also found images of a young girl stored in a temporary folder waiting to be written to a CD. Garner identified a DVD containing a portion of the images retrieved from the original hard drive of the computer. Eight images were found in one folder and 120 images in another folder. She said that the images had a "fingerprint, " meaning "basically a number, but it's a very long number and it's a unique fingerprint to that hard drive. And so that is how you verify that it's the same image." The fingerprint of the images linked them to the defendant's computer.
Garner said that, in her expert opinion, the images recovered from the defendant's computer were not the result of a virus. She elaborated that she had never seen a virus organized in a manner that would create different folders on a computer and that the files were found in a backup folder, "which is not typical if the virus is going to attack a computer, not typical that it will attack your backup folder." Further, a number of the images were located in an "allocated, " meaning "that space where these are deleted out of the recycle bin, they are put in an allocated, " and Garner had never seen a virus attack an allocated space. For a file to take this path and end up in an allocated, an individual had to physically take control of the computer. Garner said that she was "very confident" because of the verification of the fingerprint of the hard drive that all of the images came from the defendant's computer.
On cross-examination, asked if it would have been simpler for a hacker to have put the images on the computer rather than a virus, Garner said that "it would not be simpler." She said there was no evidence that a hacker had placed anything on the hard drive of the defendant's computer "[b]ecause you can see in the operating system of the computer."
Investigator Haynes, recalled by the State, testified that after he took the computer from Tabor's place of business, ownership of the computer was established as belonging to the defendant. A search warrant was obtained and executed at the defendant's residence, which was located in a "completely secluded" area surrounded by "woods, underbrush. It look[ed] like you just force fed a house into the area somehow. It [was] completely grown up." Investigator Haynes, along with Investigator Norris and Deputy Rogers, executed the warrant and told the defendant they had taken possession of his computer from Tabor's shop and were there to look for anything that contained other child pornography. The defendant told the officers that they would not "find any more, " which Investigator Haynes thought "a bit odd, ... indicat[ing] you've got all you're going to get." Deputy Rogers transported the defendant to the sheriff's department, and Investigators Haynes and Norris conducted the search. The defendant's house was in "absolute total disarray, just junk, dirty clothes, bags of trash." In the living room were a "pull-down screen that was probably six or eight feet wide and [went] from just about ceiling to floor" and a sectional couch with a projection type TV on a table in front of the couch. Between 500 and 1000 DVDs were located on shelves on the walls. On the couch and table were food items and a blanket, and it appeared that the defendant "was living on the couch, just in this home theater." The investigators confiscated a desktop computer in the upstairs loft area and two laptop computers in a downstairs closet.
Investigator Haynes said that after the search was completed, they returned to the sheriff's department and interviewed the defendant after advising him of his rights. The defendant never wrote or a signed a statement but did tell the officers that "he looked at porn on the internet. He said that the computer that [the officers] had was his and that he had had it for two to three years. Said that he lived in the house alone and that no one had access to the computer but him." Investigator Haynes acknowledged that they did not find any pornography in the defendant's house but said they did not search everywhere and only checked about one percent of the massive amount of DVDs they found.
The forty-two-year-old defendant testified that he worked between seventy and eighty hours a week at his landscaping business and acknowledged that he was a recluse. He said that he occasionally had guests, but they had nothing to do with his computer. He said that he bought and watched movies because he did not have cable television. He had Internet service but discontinued it the day after Investigator Haynes came to his house. He denied ever seeing the images on his computer and said he did not know how they had gotten onto his computer. He said that the only thing he had ever burned from his computer was "an annoying pop-up that said do you want to make a back-up of this computer, or a system backup or something like that. And the thing kept popping up every time I turned the computer on, I got tired of it and I burned it." The defendant denied telling Investigator Haynes that he would not find "any more" child pornography at his house, saying that he told the investigator he would not find "any."

State v. Charles D. Sprunger, No. E2011-02579-CCA-R3-CD, 2013 WL1385708, at *1-3 (Tenn. Crim. App. Apr. 5, 2013), perm. app. denied (Tenn. Aug. 21, 2013).

         On March 27, 2012, the Petitioner filed a petition for post-conviction relief, which the post-conviction court stayed pending the outcome of the appeal of the Petitioner's conviction. The Petitioner alleged, in relevant part, that he received the ineffective assistance of counsel and that his right to his counsel of choice was violated because his real property was seized and forfeited before the trial.

         At the post-conviction hearing, the Petitioner testified that in July 2008, the police executed a search warrant of his home and that in July 2009, he was indicted. He said that on May 20, 2009, the police served him with a seizure and forfeiture notice of his home and that the notice provided no instructions about how to challenge the forfeiture. He said that he was incarcerated in October 2011 when the forfeiture trial occurred. He said that his written request for an appointed attorney to represent him at the forfeiture trial in chancery court was denied and that he submitted an affidavit of indigency with his request. He recalled participating in the trial by telephone from the correctional facility because his request for a transport order was denied. H e said that he thought the trial was only a hearing, that he was told by someone he thought was a court secretary that he could speak to an attorney, and that he was not prepared for a trial. He said the trial was thirty to four-five minutes.

         The Petitioner testified that at the forfeiture trial, he requested but was denied permission to read into the record the "brief" he submitted to the chancellor. The Petitioner said that in his brief, he stated the State failed to provide him "notice" about how to "claim his property, " that the State's failure violated the law, and that the chancellor permitted the State to seize his property. He said that the forfeiture warrant was served upon him in May 2009, two months before the indictment was returned. He said that the civil paperwork he received when he was in jail showed that his property was being seized because he was guilty of aggravated sexual exploitation of a minor. He recalled the original indictment alleged he had committed aggravated sexual exploitation of a minor but that the charge was reduced to sexual exploitation of a minor at his first court appearance.

         The Petitioner testified that he contacted an attorney in July 2008, that the attorney told him to bring the "charge sheet" to the attorney after he had been charged, and that he complied with the attorney's instructions after the indictment was returned in July 2009. He said that the attorney's quoted fee was $13, 000, that he did not have cash for the fee, that he had adequate equity in his home to pay the fee, but that he was not permitted to utilize the equity because the State had already seized his property. The Petitioner said that ...

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