State v. Aguilar

• Decision Date: 18 December 2013
• Docket Number: No. M2012–02611–CCA–R3–CD.,M2012–02611–CCA–R3–CD.
• Citation: 437 S.W.3d 889
• Court: Tennessee Court of Criminal Appeals
• Parties: STATE of Tennessee v. Jared Scott AGUILAR.

437 S.W.3d 889

STATE of Tennessee

v.Jared Scott AGUILAR.

No. M2012–02611–CCA–R3–CD.

Court of Criminal Appeals of Tennessee,

at Nashville.

Assigned on Briefs Oct. 8, 2013.

Dec. 18, 2013.

Application for Permission to Appeal

Denied by Supreme Court

May 16, 2014.

Roger E. Nell, District Public Defender; and Crystal L. Myers, Assistant District Public Defender, for the appellant, Jared Scott Aguilar.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; John W. Carney, District Attorney General; and Dan Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which ROBERT W. WEDEMEYER and ROGER A. PAGE, JJ., joined.

JAMES CURWOOD WITT, JR., J.

The defendant, Jared Scott Aguilar, appeals from his Montgomery County Circuit Court jury convictions of six counts of sexual exploitation of a minor, seeT.C.A. § 39–17–1003(a)(1), claiming that the trial court erred by denying his motion to suppress evidence seized pursuant to a search warrant, that the evidence was insufficient to sustain two of the convictions, that the counts of the indictment are multiplicitous, and that the 10–year effective sentence is excessive. Discerning no error, we affirm the judgments of the trial court.

A Montgomery County Circuit Court jury convicted the defendant of one count of knowingly possessing 100 or more images of child pornography, one count of knowingly possessing 50 or more images of child pornography, and four counts of knowingly possessing a single image of child pornography, all in violation of Code section 39–17–1003. SeeT.C.A. § 39–17–1003(a)(1), (b), (d) (2006). At trial, Montgomery County Sheriff's Office Investigator Mike Cereceres testified that as a member of the Internet Crimes Against Children task force, he utilizes file sharing software and graphic search terms, techniques most often used by consumers of child pornography, to discover those viewing child pornography and sharing child pornography data, “whether it be in a video format, whether it be an image.” He explained that file sharing software enables users “to share videos back and forth, to share PDFs, to share movies.” He said, “[I]f I have all this stuff on my computer which I'm sharing, videos, pictures, it's there for the world to get. All they have to do is use the same software that I have, type in the title of what they want.” He said that, in a typical case, after he observes a user's viewing or sharing child pornography, he “geolocate[s]” the user using the internet protocol (“IP”) address of the computer used to view or share the images. He said that the “IP address ... is essentially nothing more th[a]n like a house address except your computer gets assigned an address.” If he ascertains that the computer is located in Montgomery County, he asks for a judicial subpoena to be sent to the internet service provider for that IP address in order to determine the name and address of the service subscriber and owner of the computer. After determining the owner and subscriber information, he conducts surveillance on the residence before requesting a search warrant. After obtaining a search warrant, he executes the warrant, most often at night.

Investigator Cereceres testified that in this case, while using file sharing software on January 9, 2011, he “ended up making a download off of the [d]efendant's computer.... [and] obtaining three images of child pornography.” He said that the titles of the files indicated to him that they contained child pornography.¹ He viewed the files and confirmed that they did, in fact, contain child pornography. He said that each of the files had a different “secure hash algorithm” (“SHA”), which, he explained, is akin to fingerprints in that it renders individual files unique. He said, “No other file is going to have that same SHA one value.” After viewing the downloaded files, he “geolocated” the IP addressof the computer and determined that it was in Montgomery County. He then obtained a judicial subpoena that he sent to the internet service provider, and the service provider indicated that the IP address was registered to the defendant. He used the information gleaned during his investigation to obtain a warrant to search the defendant's residence and computer.

Investigator Cereceres said that when officers executed the search warrant at the defendant's residence on January 31, 2011, the defendant answered the door and indicated that he was alone. During the search, officers seized two laptop computers, and the defendant admitted ownership of one of the laptops. Upon questioning, the defendant acknowledged that he had used file sharing software, saying that he “was downloading movies like Twilight for his wife, and he's just made a lot of downloads of various things.” Investigator Cereceres said that the defendant also provided a written statement:

“I have a program called FrostWire that I use to download music and movies. In the past when child pornography was accidently downloaded I deleted it immediately. While making mass downloads in the past I have downloaded various things that I am not interested in, and I deleted them as such.

When my wife and I have friends over I'm usually the first to pass out. I leave my computer logged on in case anyone wants to use it. I have not had any issues with any friends in the past using my computer to download child porn or anything else that is illegal.

I had a small party this past weekend to watch the probowl.... I enjoy inviting new soldiers to my house for various occasions to give them a sense of brotherhood.

I have searched FrostWire for porn using such key words as little boy slash girl. I know it sounds suspicious; my intention was looking for jailbait. My understanding of jailbait is that it's a young girl, above the age of 18 that can pass for younger. I'm not interested in child porn in any way, shape or form.

Let's see; a video that was downloaded by accident that involved two boys. I tried to delete it, but the computer said it was open in another program. I still have not been able to delete it. I searched hymen looking for virgins obviously over the age of 18. Carl David Hyman came up as pictures. I downloaded the page, and the pictures ended up being child porn. Again, I discarded them as something I wasn't interested in.

When downloading movies I have hit preview and seen that it was child porn and stopped the download. These files are ... in the incomplete section of the FrostWire folder....

I started using FrostWire when I got my computer in 2009. One day I accidently downloaded child porn. I was so shocked that I did delete it—the image and uninstalled FrostWire. I reinstalled it thinking that I can just ignore anything like that that came up. I had done so by deleting anything that is child porn. I have also typed in church girls gone wild thinking it was innocent girls over the age of 18 that became sluts. I never tried it again when it turned out to be child porn....

Investigator Cereceres acknowledged that a user could accidentally download child pornography, but he stated that an accidental download would be rare and that more than one accidental download to the same computer would be even more rare. He said that the search terms that the defendant admitted using were those most often used by individuals looking for child pornography and that, in his experience,those search terms were not indicative of a desire to view adult pornography.

During cross-examination, Investigator Cereceres said that he did not know when the defendant had downloaded the files or how many times the defendant had accessed those files. He explained that when using file sharing software, “if you click on one file, you're initiating that download of just the one file.” He said that a file sharing software user can see what is on another computer “on a list.” He maintained that “virus-wise or even someone hacking your e-mail wouldn't put a copious amount of child pornography on your computer.”

During redirect examination, Investigator Cereceres said that the files observed via file sharing software would not automatically download after a search. Instead, he said, “[Y]ou have to choose to double click on it, or right click, you have to make that choice.” He said that, because downloading the files required an intentional download, the presence of these files on the defendant's computer was indicative of an intentional decision to download child pornography. He said, “[G]oing online, you know, and to Google child pornography, it's not that easy to find unless you know what you're doing.” He added that most internet search engines filter out child pornography even when illicit search terms are used and that he had “never seen” internet “pop ups” that downloaded child pornography onto a computer.

Dickson County Sheriff's Department Detective Scott Levasseur testified that he was “in charge of the computer forensics lab, cyber crime unit” and also assigned as an investigator for the district attorney's office and “to the FBI task force out of Nashville.” He said that his primary duty in each of these roles was to perform forensic examinations of computers and other electronic equipment as an “electronic evidence collection specialist.” He explained, “The job of a computer forensic examiner is to examine a device, find the evidence as it pertains to the case, preserve it and have it ready for display in a courtroom.”

Detective Levasseur testified that Investigator Cereceres brought a laptop and some other pieces of evidence to be examined by Detective Levasseur. Only the laptop contained relevant evidence. He explained the process of forensic examination:

We disconnect the battery supply, remove the hard drive. And then I take the hard drive out of the laptop and hook it up to a [write] blocker. And all a [write] blocker is is a...