Assigned on Briefs October 3, 2017
from the Criminal Court for Shelby County No. 14-02047 Lee V.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
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
E. Glenn, J., delivered the opinion of the court, in which
John Everett Williams and Norma McGee Ogle, JJ., joined.
E. GLENN, JUDGE.
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.
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.
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.
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.
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