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State v. Bohannon

Court of Criminal Appeals of Tennessee, Nashville

April 17, 2018

STATE OF TENNESSEE
v.
CHRISTOPHER HANK BOHANNON

          Assigned on Briefs December 13, 2017

          Appeal from the Criminal Court for Putnam County No. 11-0566 David A. Patterson, Judge

         The Defendant-Appellant, Christopher Hank Bohannon, was convicted by a Putnam County jury of sexual exploitation of a minor for possession of over 100 images of a minor engaged in sexual activity (count one) and aggravated sexual exploitation of a minor based on the distribution, exchange, or possession with intent to distribute over 25 images of a minor engaged in sexual activity (count two), for which he received an effective sentence of eight years. Tenn. Code Ann. §§ 39-17-1003(a)(1), -1004(a)(1)(A). On appeal, the Defendant argues that: (1) the trial court improperly re-heard the Defendant's motion to suppress evidence; (2) the Defendant's statements to police during the execution of a search warrant at his residence should have been suppressed; (3) the evidence was insufficient to support his aggravated sexual exploitation conviction; and (4) the State made improper and prejudicial statements during its rebuttal closing argument.[1] Upon review, we affirm the judgments of the trial court.

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

          Seth Crabtree, Cookeville, Tennessee, for the Defendant-Appellant, Christopher Hank Bohannon.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Beth Willis, Assistant District Attorney General, for the appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Timothy L. Easter, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

          Between March and April 2011, Detective Yvette Demming of the Cookeville Police Department (CPD) conducted an undercover investigation into the Defendant's possession and distribution of child pornography. During her investigation, she engaged an online file sharing peer-to-peer network which enabled her to download multiple images of child pornography from a computer registered to the Defendant's internet protocol ("IP") address. She eventually executed a search warrant upon the Defendant's residence and seized two of the Defendant's computers. While executing the warrant, the Defendant admitted to possession of child pornography and to downloading the file sharing program on his computer. Subsequent examination of the computer hard drives seized from the Defendant's home revealed more than 100 images of child pornography.

         As an initial matter, some discussion of the procedural history of this case is necessary for the resolution of the Defendant's issues pertaining to his motion to suppress. The Defendant apparently filed a motion to suppress evidence seized during the execution of the search warrant; however, no such motion is included in the record on appeal. Nevertheless, two hearings on his motion to suppress were conducted on October 8, 2012 (first hearing), and April 7, 2015 (second hearing). Although the reason for the delay in resolving the motion is not entirely clear from the record, it is apparent that the trial judge who presided over the first hearing requested supplemental briefing. While the briefing schedule was pending, the original trial judge retired, the attorney representing the State had relocated, and the attorney representing the Defendant had been permitted to withdraw. Significantly, and central to the issues raised in this appeal, the appellate record does not contain an order disposing of the motion to suppress from the original trial judge prior to his retirement. However, there is a reference in an October 19, 2013 Memorandum Order, signed by the original trial judge, which notes that, "[T]he defendant filed a pro se motion to suppress the evidence in the case after the Court had ruled upon a previous suppression motion filed by his attorney. . . . The Court finds that the issues raised by this motion have either been previously ruled upon by the Court or have no application to this case." (emphasis added). No other events occurred regarding the Defendant's case until it was set for trial in 2015.

         At some point prior to the Defendant's February 2015 trial date, the State filed a motion requesting clarification of the initial trial court's ruling on the first hearing. The Defendant opposed the motion and insisted that no re-hearing was necessary because the original trial court had granted his motion.[2] In a March 10, 2015 order, the trial court, as the successor judge, noted that there was a transcript of the first hearing, but it did not contain findings of fact or a ruling disposing of the motion. It then set the Defendant's motion to suppress for a second hearing. The Defendant filed a motion seeking to set aside the trial court's March 10, 2015 order based on excerpts from transcripts from the original trial court.[3] In addition, defense counsel argued, inter alia, that the appropriate remedy was for the trial court to enter a "blank ruling" without findings of fact and require the State to apply for an interlocutory appeal. In denying the Defendant's motion, the trial court stated, in pertinent part:

Further for the record I want to say that the transcript of the proceedings from [the first hearing], all of the proof being completed, on page fifty[-]eight the judge made this statement, there are quotes, the court, well my inclination is that he was not in custody. There might be some circumstances which would, some cases which would suggest circumstances similar to this that might be placing him in custody. There's another paragraph and then the judge goes on to say, [the Defendant], as I'm suggesting here, my inclination is to deny the Motion to Suppress, in that under case law you were not in custody. However, here's a person in his own home who is under some disability. Does that amount to custody? That question is left unresolved by this transcript.
I have been provided by the attorneys other parts of transcripts, one from [August 1, 2013], and in that particular day the court says . . . . I didn't bring [the Defendant's] file with me today, I apologize, but I indicated that the court . . . would be ruling that the search warrant was valid and the coercive atmosphere would lead . . . to suppressing the statement that was given. That may be, those may be contradictory findings, but at any rate. So [the Defendant], I'm going to allow the search warrant that was issued to be ruled as valid so . . . evidence obtained from the search warrant would be admissible. The admission that you made in the room there with the officers when they first came in on the search warrant, I'm suppressing that. That was [the August 1, 2013 transcript]. That is the only part of the transcript that refers to what the court may have been thinking after it heard the testimony from [the Defendant's] case on [October 8, 2012].
On September 5, 2012, I've been provided with another part of the transcript and [the assistant district attorney general], is addressing the court and he says, Your Honor, I don't want to get too far afield here. The court has made a ruling on the audio taped statement that was made of this defendant's interview and the court ruled that was suppressed. And what [the assistant district attorney general] at that time . . . is asking for is a ruling by the court of whether during the cross examination of the defendant the court would find it to be a voluntary statement and it could be used by the state in cross examining the defendant. And there's no real answer to that either.
We move on to [September 16, 2013], and this has been provided by the attorneys, and it is regarding the same issue and there's a brief discussion by the court. The court says well we don't need to go a different route, we've been there once. In fact, I guess the court suppressed, granted the motion to suppress the statements you made. I believe that was correct, but the warrant was upheld.

         After reviewing the above transcripts and arguments of counsel, the trial court described the original trial court's disposition of the motion as "very muddy" because there were no findings of fact or an order ruling on the motion entered on the record. The trial court then proceeded with the second hearing and considered the transcript from the first hearing in determining the merits of the motion to suppress.

         At the first hearing, the Defendant moved to suppress the statements made to Detective Demming during the search warrant, arguing that the police officers failed to accommodate his disability, that he did not feel free to leave, and that his statement was not voluntary. Detective Demming testified that on April 26, 2011, she went with CPD Detective Lieutenant Bobby Anderson and Officer Eric Hall to execute a search warrant for the Defendant's residence. She had a recording device turned on before she knocked on the Defendant's door. When the Defendant answered the door, Detective Demming identified herself and told the Defendant that she and the other officers were there to execute the search warrant of his home. She told the Defendant several times throughout their conversation that he was not under arrest and that he did not have to speak with her. She said the Defendant agreed to speak with her and selectively answered some of her questions while choosing not to answer others. When the Defendant mentioned that he may need to talk to an attorney, she stopped talking with the Defendant. The Defendant then went to the restroom and when he returned, he asked her what other questions she had for him. She resumed the conversation and asked the Defendant specifically about his use of file sharing programs. The Defendant again chose which questions to answer or ignore and then asked her if they could "make a deal." In her testimony, Detective Demming confirmed that the Defendant was not under arrest and that he was free to leave at any time.

          On cross-examination, Detective Demming testified that she was aware the Defendant had some sight issues but did not believe he was completely blind. Prior to the search warrant, Detective Demming performed surveillance on the Defendant's home and observed the Defendant walking unassisted and without a cane outside of his apartment. She testified that at the end of the search, she read the consent form to the Defendant, told him what items were being taken from his home as evidence, gave him a receipt of those items, and left a copy of the search warrant with him. She said the Defendant admitted to possessing child pornography on his computers and estimated that he had over 100 images and 50 to 100 videos. He also admitted to using file sharing programs, such as FrostWire, to download this material. She stated that the Defendant never questioned their identity or requested accommodations for his disability.

         The Defendant testified that when he answered the door, he observed three individuals but did not know who they were because they did not identify themselves. He said that Detective Anderson refused to let him put on his shoes and told him that he was "not going anywhere." The Defendant said he was "blind and defenseless" and that the officers would not let him call someone or leave his home. He testified that he felt coerced into answering Detective Demming's questions and signing the consent form. The Defendant then testified that the officers actually identified themselves as police officers serving a search warrant but claimed that they refused to accommodate his disability.

         On cross-examination, the Defendant agreed that his conversation with Detective Demming was mutual and consensual, that each of them asked questions, and that he chose which questions he wanted to answer. He also agreed that his voice did not sound panicked in the recorded conversation and that Detective Demming told him multiple times he was not under arrest.

         At the second hearing, Detective Demming testified consistently with her testimony from the first hearing. In addition, she testified that, during the search warrant, she wore a vest with "POLICE" written on the front and that Officer Hall was wearing his duty uniform. Detective Demming identified exhibit 1 for the court as a disc copy of the recorded conversation she had with the Defendant during the execution of the search warrant. Detective Demming denied refusing to allow the Defendant to make a phone call. She explained that his phone and modem were not taken until the end of the search and had he wanted to make a call, he could have. She verified that her authority to search the Defendant's house came from the search warrant.

         During Detective Demming's testimony, exhibit 1, the recording of her conversation with the Defendant during the execution of the search warrant, was played for the court. In that recording, Detective Demming identified herself and stated that she and the other officers were there to execute the search warrant on his residence. Throughout her conversation with the Defendant, she affirmatively told him that he was not under arrest and that he did not have to speak with her. At one point in the conversation, the Defendant referenced getting an attorney. Detective Demming again told him that he was not under arrest but stopped questioning him immediately. The Defendant then asked to use the restroom and when he returned, he asked if Detective Demming had "any other questions[.]" Throughout the conversation, the Defendant avoided answering specific questions by asking if Detective Demming had any other questions. He stated that he "might be in a lot of trouble" and asked Detective Demming multiple times if they could "work out a deal[.]" Further along in the conversation, the Defendant admitted to possessing and masturbating to child pornography:

Detective: [D]o you have images on your computer of children engaged in sexual activity?
Defendant: Well, yes I do.
Detective: Ok, do you have any ...

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