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State v. Shearin

Court of Criminal Appeals of Tennessee, Jackson

January 10, 2018

STATE OF TENNESSEE
v.
ANDREW SHEARIN

          Assigned on Briefs October 3, 2017

         Appeal from the Criminal Court for Shelby County No. 14-02047 Lee V. Coffee, Judge

         The Defendant, Andrew Shearin, pled guilty in the Shelby County Criminal Court to sexual exploitation of a minor involving more than 100 images, a Class B felony, and was sentenced by the trial court as a Range I, standard offender to twelve years at 100% in the Department of Correction. On appeal, he argues that the trial court imposed an excessive sentence by misapplying enhancement factors. Following our review, we affirm the judgment of the trial court.

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

          Joseph A. McClusky (on appeal) and Jack Sherman (at sentencing), Memphis, Tennessee, for the appellant, Andrew Shearin.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Bryce Phillips and Steve Ragland, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Norma McGee Ogle, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE.

         FACTS

         On April 24, 2014, the Defendant was indicted by the Shelby County Grand Jury for sexual exploitation of a minor based on his possession of over 100 images involving minors engaged in sexual activity, a Class B felony. On April 4, 2016, the Defendant entered an open guilty plea to the indicted offense, leaving the sentencing to the trial court's determination. A transcript of the guilty plea hearing is not included in the record on appeal. According to the affidavit of complaint, the case stemmed from a July 19, 2011, execution of a search warrant at the Defendant's Memphis home, during which police officers discovered two computers containing over 100 images of minors engaged in sexual activity. The Defendant subsequently gave a signed statement admitting that he had downloaded and possessed the images found on his computers.

         At the September 30, 2016, sentencing hearing, the State introduced the Defendant's presentence report, which reflected that the forty-three-year-old Defendant admitted prior use of marijuana and cocaine, including daily cocaine use from the age of 29 or 30 to 31 or 32.

         The State's only witness at the hearing was Lieutenant Wilton Cleveland of the Memphis Police Department's Internet Crimes Against Children Unit, who conducted the forensic examination of the computers seized from the Defendant's home. Lieutenant Cleveland testified that he identified a total of 1, 717 "child pornographic images" on the computers, with 1, 488 of the images matching "hash values" of known pornographic images contained in multiple databases, and the remainder being new, previously unknown images. He said most of the images were of prepubescent children. In addition to the 1, 717 images, Lieutenant Cleveland found thirty-nine videos, with "thirty-five of those ha[ving] the hash match values of known [child pornographic] . . . videos." The total run time of all the videos combined was six hours, forty-five minutes and twenty seconds.

         Lieutenant Cleveland testified that he had worked in the Internet Crimes Against Children Unit for close to a decade and that several of the videos in this case were "probably the worst that [he had] ever seen." As an example, he testified that one of the videos, which "appear[ed] to be a compilation of a multiple timeframe, " showed a man having penile-vaginal intercourse with a child from the time she was approximately nine to ten months old until she was three years old. Although the same victim appeared throughout that video, there were "[h]undreds, if not thousands" of child victims shown during all the hours of videotape and the 1, 717 still images.

         Lieutenant Cleveland testified that the Defendant admitted that he had downloaded the material. He recalled that the Defendant said he had been doing it for years and that he had used a neighbor's Wi-Fi connection to do so. On cross-examination, Lieutenant Cleveland testified that most ...


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