        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs January 29, 2013

            STATE OF TENNESSEE v. CHARLES D. SPRUNGER

               Appeal from the Criminal Court for Cumberland County
                     No. 09-0212    David A. Patterson, Judge


                  No. E2011-02579-CCA-R3-CD - Filed April 5, 2013


Following a jury trial, the defendant, Charles D. Sprunger, was convicted of sexual
exploitation of a minor, a Class B felony, and sentenced as a Range I offender to eight years
at 100%. On appeal, he argues that the evidence is insufficient to support his conviction and
that the trial court erred in sentencing him. After review, we affirm the judgment of the trial
court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J EFFREY S. B IVINS and
R OGER A. P AGE, JJ., joined.

Jeffrey A. Vires, Crossville, Tennessee (on appeal); and James S. Smith, Jr., Rockwood,
Tennessee (at trial), for the appellant, Charles D. Sprunger.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Randall A. York, District Attorney General; and Gary McKenzie and Amanda M. Hunter,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       On July 6, 2009, the defendant was indicted by a Cumberland County Grand Jury for
aggravated sexual exploitation of a minor based on the discovery on his computer of more
than 100 images of minors engaging in sexual activity after he took the computer to a repair
business. The trial court subsequently amended the indictment, reducing the charge to sexual
exploitation of a minor.
       At the defendant’s August 19, 2010 trial, Tammy Arellano testified that in July 2008
she was working for a certified public accountant in Crossville. The accountant’s stepson,
McKinley Tabor, rented a space in the office for his computer repair business. Ms. Arellano
said that her desk was positioned in a manner so that anyone coming to Tabor’s office had
to pass by her. She said that the usual practice for Tabor’s customers was to leave their
computers with their name and telephone number on a table located in front of her against
the wall beside Tabor’s office. On July 8, 2008, the defendant came in with his computer,
saying he had talked to Tabor on the phone. The defendant placed the computer on the
designated table and attached a note with his name and phone number.

         McKinley Tabor, an outsourced IT manager, testified that he provided computer repair
and consulting services, primarily for corporations. He also had a small office where
individuals brought their computers for repair. On July 4, 2008, Tabor received a phone call
from a man who identified himself as “Chuck” and said that he needed Tabor to restore data
from the hard drive of his computer. Tabor told the man to bring the computer to his office
the following Monday morning. The man telephoned Tabor at 1:00 p.m. that Monday and
gave him the password so he could start the computer. While the computer was starting up,
Tabor and the man discussed what material he wanted Tabor to restore. Tabor then noticed
an icon on the computer indicating that files were waiting to be written to CD. The man
asked Tabor to restore a specific program, as well as a Microsoft Money file. While the man
was still on the phone, Tabor opened a folder on the computer to see if it contained the
missing program. However, the folder actually contained photographs of “what appeared .
. . to be pre-pubescent girls engaged in sexually suggestive poses and one of them appeared
to be engaged in a sex act with an adult.” Tabor told the man he would call him back later
and then notified the police. After the police arrived, the folder containing the files waiting
to be written to CD was opened, and it contained images of the same nature as the ones Tabor
had found earlier. Tabor turned the computer over to Investigator Haynes.

        Investigator John Haynes with the Cumberland County Sheriff’s Department testified
that he went to Tabor’s repair shop on July 8, 2008, to investigate “a computer there with .
. . possible child pornography images on it.” Tabor hooked up the computer and “brought
up a page of images that appeared to be young people, eight, ten, twelve, fourteen years old,
engaged in various sex acts and some in erotic poses.” Investigator Haynes identified in
court the computer he received from Tabor’s shop and said that he subsequently delivered
it to the Tennessee Bureau of Investigation (“TBI”) for forensic analysis.

        Melanie Garner, a special agent criminal investigator in the Technical Unit of the TBI,
testified that she became a certified computer examiner in 2007. She conducted a forensic
analysis on the defendant’s computer and found several folders containing sexually explicit
images of young children. The images were found in a backup folder dated April 7, 2008,

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on the main drive of the computer under “owners documents.” The images were shown to
the jury. Garner also found images of a young girl stored in a temporary folder waiting to
be written to a CD. Garner identified a DVD containing a portion of the images retrieved
from the original hard drive of the computer. Eight images were found in one folder and 120
images in another folder. She said that the images had a “fingerprint,” meaning “basically
a number, but it’s a very long number and it’s a unique fingerprint to that hard drive. And
so that is how you verify that it’s the same image.” The fingerprint of the images linked them
to the defendant’s computer.

       Garner said that, in her expert opinion, the images recovered from the defendant’s
computer were not the result of a virus. She elaborated that she had never seen a virus
organized in a manner that would create different folders on a computer and that the files
were found in a backup folder, “which is not typical if the virus is going to attack a computer,
not typical that it will attack your backup folder.” Further, a number of the images were
located in an “allocated,” meaning “that space where these are deleted out of the recycle bin,
they are put in an allocated,” and Garner had never seen a virus attack an allocated space.
For a file to take this path and end up in an allocated, an individual had to physically take
control of the computer. Garner said that she was “very confident” because of the
verification of the fingerprint of the hard drive that all of the images came from the
defendant’s computer.

       On cross-examination, asked if it would have been simpler for a hacker to have put
the images on the computer rather than a virus, Garner said that “it would not be simpler.”
She said there was no evidence that a hacker had placed anything on the hard drive of the
defendant’s computer “[b]ecause you can see in the operating system of the computer.”

        Investigator Haynes, recalled by the State, testified that after he took the computer
from Tabor’s place of business, ownership of the computer was established as belonging to
the defendant. A search warrant was obtained and executed at the defendant’s residence,
which was located in a “completely secluded” area surrounded by “woods, underbrush. It
look[ed] like you just force fed a house into the area somehow. It [was] completely grown
up.” Investigator Haynes, along with Investigator Norris and Deputy Rogers, executed the
warrant and told the defendant they had taken possession of his computer from Tabor’s shop
and were there to look for anything that contained other child pornography. The defendant
told the officers that they would not “find any more,” which Investigator Haynes thought “a
bit odd, . . . indicat[ing] you’ve got all you’re going to get.” Deputy Rogers transported the
defendant to the sheriff’s department, and Investigators Haynes and Norris conducted the
search. The defendant’s house was in “absolute total disarray, just junk, dirty clothes, bags
of trash.” In the living room were a “pull-down screen that was probably six or eight feet
wide and [went] from just about ceiling to floor” and a sectional couch with a projection type

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TV on a table in front of the couch. Between 500 and 1000 DVDs were located on shelves
on the walls. On the couch and table were food items and a blanket, and it appeared that the
defendant “was living on the couch, just in this home theater.” The investigators confiscated
a desktop computer in the upstairs loft area and two laptop computers in a downstairs closet.

        Investigator Haynes said that after the search was completed, they returned to the
sheriff’s department and interviewed the defendant after advising him of his rights. The
defendant never wrote or a signed a statement but did tell the officers that “he looked at porn
on the internet. He said that the computer that [the officers] had was his and that he had had
it for two to three years. Said that he lived in the house alone and that no one had access to
the computer but him.” Investigator Haynes acknowledged that they did not find any
pornography in the defendant’s house but said they did not search everywhere and only
checked about one percent of the massive amount of DVDs they found.

       The forty-two-year-old defendant testified that he worked between seventy and eighty
hours a week at his landscaping business and acknowledged that he was a recluse. He said
that he occasionally had guests, but they had nothing to do with his computer. He said that
he bought and watched movies because he did not have cable television. He had Internet
service but discontinued it the day after Investigator Haynes came to his house. He denied
ever seeing the images on his computer and said he did not know how they had gotten onto
his computer. He said that the only thing he had ever burned from his computer was “an
annoying pop-up that said do you want to make a back-up of this computer, or a system back-
up or something like that. And the thing kept popping up every time I turned the computer
on, I got tired of it and I burned it.” The defendant denied telling Investigator Haynes that
he would not find “any more” child pornography at his house, saying that he told the
investigator he would not find “any.”

                                         ANALYSIS

                               I. Sufficiency of the Evidence

        The defendant argues that the evidence is insufficient to support his conviction.
Because a jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, on appeal a convicted defendant has the
burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d
913, 914 (Tenn.1982). Thus, we must consider “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to support

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the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838
S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim.
App. 1992).

        All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).

        The defendant was convicted of sexual exploitation of a minor, in violation of
Tennessee Code Annotated section 39-17-1003, which makes it a Class B felony for “any
person to knowingly possess material that includes a minor engaged in (1) [s]exual activity;
or (2) [s]imulated sexual activity that is patently offensive . . . [i]f the number of individual
images, materials, or combination of images and materials, exceeds one hundred (100).”
Tenn. Code Ann. § 39-17-1003(a), (d).

       Viewed in the light most favorable to the State, the evidence established that the
defendant took his computer to McKinley Tabor’s repair business where Tabor discovered
numerous photographs of “what appeared . . . to be pre-pubescent girls engaged in sexually
suggestive poses and one of them appeared to be engaged in a sex act with an adult.” TBI
Special Agent Melanie Garner, a certified computer examiner, analyzed the defendant’s
computer and found over 100 sexually explicit images of young children. She testified that
the fingerprint of the images specifically linked them to the defendant’s computer and that
there was no evidence the computer had been infected with a virus or that someone had
hacked into it. The defendant told Investigator Haynes that he had viewed pornography on
the Internet and that he lived alone and was the only one who had access to his computer.
The defendant testified that he was the only one who used the computer, and Tabor testified

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that the defendant had provided him with the password to start the computer. We conclude,
therefore, that the evidence is sufficient to sustain the defendant’s conviction.

                                       II. Sentencing

        The defendant argues that his sentence is too harsh. The State disagrees, arguing that
the trial court appropriately sentenced the defendant within the applicable range. We agree
with the State.

       Under the 2005 amendments to the sentencing act, a trial court is to consider the
following when determining a defendant’s sentence and the appropriate combination of
sentencing alternatives:

       (1) The evidence, if any, received at the trial and the sentencing hearing;

       (2) The presentence report;

       (3) The principles of sentencing and arguments as to sentencing alternatives;

       (4) The nature and characteristics of the criminal conduct involved;

       (5) Evidence and information offered by the parties on the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

Tenn. Code Ann. § 40-35-210(b) (2010).

       The trial court is granted broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating factors,
and “sentences should be upheld so long as the statutory purposes and principles, along with
any enhancement and mitigating factors, have been properly addressed.” State v. Bise, 380
S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s sentencing
determinations under an abuse of discretion standard, “granting a presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of the

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purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our supreme
court clarified that the “abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including the questions related to probation or any
other alternative sentence.” 388 S.W.3d 273, 278-79 (Tenn. 2012).

       At the sentencing hearing, the defendant’s presentence report was admitted which
reflected that the defendant’s prior criminal record consisted of traffic violations. The trial
court determined that the defendant’s range of punishment as a Range I offender convicted
of a Class B felony was eight to twelve years. Finding no enhancement factors and that the
defendant had not presented any mitigating factors, the trial court sentenced him to eight
years. Because the offense involved more than 100 images, the court imposed a 100%
release eligibility, pursuant to Tennessee Code Annotated section 40-35-501(i)(1)(2)(M).
The court further found that the defendant was not entitled to probation. We conclude that
the record, as we have set out, supports these findings and affirm the trial court’s sentencing
determinations.

                                      CONCLUSION

        Based upon the foregoing authorities and reasoning, the judgment of the trial court
is affirmed.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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