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State v. Burt

Court of Criminal Appeals of Tennessee, Nashville

March 14, 2018

STATE OF TENNESSEE
v.
HUGH EVERRET BURT

          Assigned on Briefs February 14, 2018

         Appeal from the Criminal Court for Davidson County No. 2016-B-634 Monte Watkins, Judge

         After a 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.

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

          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 Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE.

         This 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.

         Detective 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.

         Detective 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.

         Detective 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.

         Detective 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 Detective Carrigan.

         Detective 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 (hughburtseventythree@msn.com). 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."

         Detective 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.

         Chad 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.

         Detective 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 pornography.

         Detective 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 ...


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