State v. Burda, No. M2006-02523-CCA-R3-CD (Tenn. Crim. App. 5/4/2009)

Decision Date04 May 2009
Docket NumberNo. M2006-02523-CCA-R3-CD.,M2006-02523-CCA-R3-CD.
PartiesSTATE OF TENNESSEE v. JOHN JASON BURDA.
CourtTennessee Court of Criminal Appeals

R. Todd Hansrote, Clarksville, Tennessee, for the appellant, John Jason Burda.

Robert E. Cooper, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Joseph Baugh, Assistant District Attorney General, for the appellee, the State of Tennessee.

Thomas T. Woodall, J., delivered the opinion of the court, in which David H. Welles and Robert W. Wedemeyer, JJ., joined.

OPINION

THOMAS T. WOODALL, Judge.

Following a jury trial, Defendant, John Jason Burda, was convicted of one count of solicitation of a minor and twenty-one counts of especially aggravated sexual exploitation of a minor. After conducting a sentencing hearing, the trial court sentenced Defendant to an effective sentence of twenty-two years to be served incarcerated. The trial court merged Counts 3, 4, 13, 14, 17, 18, and 20 with Count 2, Counts 8, 10, 15, 16, 21, 23, and 24 with Count 7, and Count 11 with Count 12. Counts 9, 19, and 22 were left as individual convictions. On appeal, Defendant argues (1) the trial court erred in failing to grant the motion to suppress the evidence seized from Defendant's home; (2) that the evidence was insufficient to sustain his convictions; (3) that the trial court erred in not requiring that all the counts of aggravated sexual exploitation of a minor be construed as one offense; (4) that the victim's testimony was not adequately corroborated; (5) that the trial court erred in refusing to grant the Defendant's motion to dismiss the indictments; and (6) that the law and facts do not support the sentence. After a thorough review of the record, we affirm the judgment of the criminal court as to the suppression motion, the corroboration of the victim's testimony, the sufficiency, and merger issues. We reverse and remand as to sentencing for entry of corrected judgments.

Defendant was convicted of one count of solicitation of a minor and twenty-one counts of especially aggravated sexual exploitation of a minor. Defendant and the victim communicated via the internet for a period of approximately two years. The charges at issue, however, concern only the time period of July 1, 2004 through September 30, 2004. During this time the victim took pictures of herself and sent them over the internet to Defendant. The pictures consisted of the victim in various states of undress and depicted the victim masturbating.

On September 20, 2004, Sergeant Roger Jackson of the King Police Department in King, North Carolina contacted the North Carolina State Bureau of Investigation for assistance in a case involving an adult male in Tennessee (later determined to be Defendant) and a minor, E.B. (the victim will be referred to by her initials), in North Carolina. According to the victim, she and Defendant, whom she knew as "Jason," had been communicating via telephone and computer for approximately two years. During the latter part of these two years, the victim sent Defendant numerous pictures of herself in various states of undress and engaging in masturbation.

The victim provided Sergeant Jackson with three photographs Defendant had sent her of himself, a list of screen names and email addresses he had used, and his home telephone number. After receiving consent from the victim's parents, Sergeant Jackson took the victim's computer to the North Carolina State Bureau of Investigation so that it could undergo a forensic investigation. Special Agent Gary R. Cullop received the computer from Sergeant Jackson and performed the forensic investigation. Special Agent Cullop testified that he requested several administrative subpoenas be issued to America OnLine (AOL) and BellSouth in order to determine the identity of the person with the screen names provided by the victim. The administrative subpoenas also requested information as to login dates and Internet Protocol (IP) addresses. The information received from the administrative subpoenas, as well as information provided by the victim, led to the confirmation of the identity of Defendant. Once Special Agent Cullop knew the name and address of the person who the victim had been corresponding with, he accessed the National Criminal Information Network through this network, and he obtained a copy of Defendant's driver's license. Special Agent Cullop then contacted the Tennessee Bureau of Investigation and spoke with Special Agent Tom Davis. After speaking with Special Agent Davis and determining that there was likely evidence on Defendant's computer that violated Tennessee law, Special Agent Cullop faxed a statement of the facts of the case to Special Agent Davis. Special Agent Cullop then contacted Special Agent Joe Craig who was located in Dickson County in order to determine if he was familiar with the area and knew where Defendant lived. Special Agent Cullop testified that he also sent copies of the victim's computer hard drive to Investigator Buddy Tidwell of the Dickson County District Attorney's Office.

Special Agent Craig testified that he was first contacted by Special Agent Davis regarding Defendant. Davis gave Craig the statement from Cullop along with the copies of the administrative subpoenas and phone records. Craig then contacted Cullop and determined that they were looking for chat logs with the victim and images from Defendant's computer. Craig then contacted Investigator Buddy Tidwell for his assistance in the forensic examination of the computer, as well as two sheriff's deputies and two police officers to assist in the search. Craig testified that they determined the residence belonged to Defendant because of the phone and IP records and because his photograph on his driver's license matched one found on the hard drive of the victim's computer. Defendant's home was located in Dickson County and prior to obtaining the search warrant, Special Agent Craig drove by the residence. Once Craig obtained the search warrant, he, Investigator Tidwell, two uniformed officers, and two sheriff's deputies went to Defendant's house. The officers served the search warrant and seized Defendant's computer, several floppy disks, cameras, and other items.

Investigator Tidwell performed the forensic examination on the computer. He testified that all the images listed in the indictment were accessed by Defendant's computer the day before the search warrant was served and Defendant was arrested. Investigator Tidwell also testified that some of the images listed in the indictment were saved to floppy disks recovered from Defendant's home. Investigator Tidwell recovered numerous chat logs from Defendant's computer. The chat logs consisted of conversations between the victim and Defendant. Investigator Tidwell was able to determine that, during the chats, the victim had sent some photographs, although he was unable to determine what photographs she sent. By examining the computers, Investigator Tidwell was able to determine the creation dates (when they were created by the victim) of the images at issue.

The victim's mother Teresa Burton testified that her daughter began chatting on the internet with Defendant shortly after they moved from West Virginia to North Carolina. Ms. Burton testified that she listened in on phone calls between Defendant and her daughter and believed Defendant to be sixteen years old. The victim was thirteen when these conversations began. In the summer of 2004, the victim became withdrawn and disturbed. In September of 2004, the victim told her mother about the conversations she had been having with Defendant and the fact that she had discovered that Defendant was in his fifties, not sixteen as she believed. Ms. Burton later saw the images the victim had sent to Defendant. Ms. Burton and her husband then decided to call the FBI and it was decided to have the victim e-mail Defendant telling him she would not be able to talk to him for four to six weeks.

The victim testified that she and Defendant began chatting online in May or June of 2002 when she logged into a chat room and said that she was thirteen years old and bored. Defendant told her he was sixteen years old. The victim stated the conversations began with them talking about general things, like her family's move to North Carolina, school, and animals. The romantic relationship between Defendant and the victim began in May of 2003. The victim stated that she was in love with Defendant and that Defendant told her that he loved her. When the victim was fifteen the relationship turned sexual. Although she and Defendant never physically met, they had numerous sexual conversations both online and on the telephone. The victim also sent Defendant pictures of herself engaging in masturbation as well as pictures of her vagina, her bra, and her breasts.

The victim testified that the sexual conversations began with Defendant inquiring about her sexual history. She stated that he wanted to know what sexual activities she had engaged in and with whom. She also stated that Defendant was very controlling and wanted her to report her daily activities to him. She stated that she and Defendant would role play in their sexual conversations and his favorite was to pretend he was her father and that their sexual relationship was incestuous.

The victim also downloaded child pornography and sent it to Defendant. Defendant would ask the victim to mimic certain pictures and send them to him, which she did. In July of 2004, Defendant instructed the victim to take a picture of herself while inserting a hairbrush into her vagina. The victim testified that Defendant had sent her several pictures of girls inserting hairbrushes into...

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