Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 14, 2018
from the Criminal Court for Davidson County No. 2016-B-634
Monte Watkins, Judge
bench trial, the trial court found the Defendant, Hugh
Everret Burt, guilty of sexual exploitation of a minor for
knowingly possessing less than fifty sexual images of minors.
The trial court sentenced the Defendant to two years and six
months, with six months to be served in jail and the
remaining served through Community Corrections. On appeal,
the Defendant argues that the evidence against him is
insufficient and that the trial court erred when it ordered
him to serve a portion of the sentence in jail. After review,
we affirm the trial court's judgment.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Michael A. Colavecchio, Nashville, Tennessee, for the
appellant, Hugh Everret Burt.
Herbert H. Slatery III, Attorney General and Reporter; Linda
D. Kirklen, Assistant Attorney General; Glenn R. Funk,
District Attorney General; and Tammy H. Meade, Assistant
District Attorney General, for the appellee, State of
W. Wedemeyer, J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr.,
W. WEDEMEYER, JUDGE.
case arises from the discovery of sexual images of minors on
the Defendant's computer. A Davidson County grand jury
indicted the Defendant for sexual exploitation of a minor for
possessing more than fifty sexual images of minors between
December 12, 2012, and December 12, 2013. The State later
amended the charge to reduce the number of images to less
than fifty, a Class D felony. The Defendant waived his right
to trial by a jury, and the case proceeded to a bench trial.
At trial, the parties presented the following evidence: David
Carrigan, a Metropolitan Nashville Police Department
detective, testified that he worked in the Sex Crimes Unit
and on the Internet Crimes Against Children Task Force.
Carrigan described how he became involved in this case,
saying that the National Center for Missing and Exploited
Children ("NCMEC") was established by Congress to
act as a clearinghouse for reports of possible child
pornography or exploitation offenses from internet service
providers, websites, and other internet-related entities. He
used "Facebook, Microsoft, Google" as examples of
entities that would report to NCMEC anything suspicious that
they might find on their servers.
Carrigan testified that, in this case, two reports were made
to NCMEC based upon the same image being uploaded to the same
Microsoft SkyDrive account, on the same day, but at two
different times. The image is included in the record and
depicts a young boy lying on a bed with a view of his exposed
buttocks. Detective Carrigan estimated the child's age at
thirteen to fourteen years old. This image, the IP address of
the computer making the upload, the email addresses, and user
name associated with the SkyDrive account were all provided
to NCMEC. The IP address was linked to the Nashville area so
NCMEC forwarded all of the information to Tennessee
authorities for investigation.
Carrigan testified that he contacted the service provider,
Comcast, connected to the IP address and obtained information
about the IP address. Detective Carrigan learned that the IP
address was assigned to the Defendant and associated with an
address on Priest Lake Drive. Detective Carrigan identified
Comcast billing record and subscriber information, confirming
that the IP address was associated with the Defendant.
Detective Carrigan also confirmed that the Defendant's
address was the same Priest Lake Drive address provided by
Comcast. The Defendant's driver's license reflected
the Priest Lake Drive address and the power and electric at
that address were registered to the Defendant.
Carrigan executed a search warrant on December 12, 2013, at
the Priest Lake Drive address. The Defendant's wife
answered the front door, and two officers spoke with her on
the main floor while Detective Carrigan spoke with the
Defendant downstairs in the basement. Detective Carrigan said
that he noticed a laptop sitting near the front door where he
entered the home. Once downstairs, Detective Carrigan
explained to the Defendant that he had a search warrant and
would be taking some items but that the Defendant was not
"under any requirement to make a statement." The
Defendant confirmed his understanding and then spoke with
Carrigan testified that the Defendant confirmed that he had a
SkyDrive account. He provided Detective Carrigan with several
email addresses, one of which was associated with the
SkyDrive account (firstname.lastname@example.org). The
Defendant also provided his password for the SkyDrive account
and stated that he had purchased the computer new about a
year before. He confirmed that he was the sole user of the
computer and the SkyDrive account. The Defendant told
Detective Carrigan that he had uploaded images to his
SkyDrive account but denied any knowledge of child
pornography on the account. He did, however, admit that on
the computer, "there was some pornography and some other
images, that he had got while he was a soldier."
Carrigan testified that the Defendant acknowledged having
searched for pornography using search terms, such as,
"Young Girls, " "Asian Women, " and
"Black Women, " but denied any direct searches for
child pornography. Detective Carrigan described for the
Defendant the image that had been sent to him from NCMEC. The
Defendant said he did not "recall" that particular
image but stated that "he had uploaded other stuff as a
batch, it coulda (sic) been in that." After
"manual" searches of several electronic items in
the residence, Detective Carrigan seized the Defendant's
laptop, the external drive, and a thumb drive.
Gish, a Metropolitan Nashville Police Department detective,
testified that he was assigned to the Criminal Investigation
Division in the Surveillance Investigative Support Unit.
Detective Gish testified as an expert in Forensic Analysis
and stated that he reviewed the contents of the
Defendant's laptop computer. From the hard drive of the
laptop computer, Detective Gish "obtain[ed] a forensic
image" or duplicate copy of the information on the
computer's hard drive. Detective Gish stated, about the
Defendant's external hard drive, that he was unable to
obtain a forensic image because the drive had some damage
that would not allow him to access the information.
Gish testified that as he searched the forensic image made
from the laptop, he was unable to find any photographs that
were saved on the hard drive and still active files.
Detective Gish did find a program called CCleaner on the hard
drive used to delete and overwrite files on a computer. He
explained that even though a file was deleted it may still be
accessed forensically until a new file overwrites it.
Detective Gish found on the computer "a number of
times" where CCleaner had been executed to overwrite
data. Next, Detective Gish searched the remaining deleted
information on the hard drive and recovered "thousands
upon thousands of images, " however, most were adult
Gish testified that he reviewed all of the images and
recovered fifty-eight to sixty that he believed were child
pornography. The images depict young girls exposing their
breasts and genitalia and engaging in sexual acts or
simulated sexual acts. Those images were sent to NCMEC to
determine if there were any known child victims associated
with the images. Detective Gish stated that, because of the
nature of the recovered ...