State of Tennessee v. Robert Grisham
E2015-02446-CCA-R3-CD
| Tenn. Crim. App. | May 5, 2017Background
- Defendant Robert Grisham was tried by jury after police recovered deleted videos/images from his cell phone showing his 14-year-old stepdaughter nude in the bathroom; additional deleted images included alleged infant sexual images and adult masturbation photos.
- Investigators at the Family Justice Center seized the phone from Grisham, later obtained his written consent to a "complete search," and forensic examiners used specialized tools to recover deleted files from the phone/SD card.
- At trial Grisham was convicted of one count of especially aggravated sexual exploitation of a minor (production), unlawful photography, and observation without consent; other counts were dismissed or resulted in acquittal.
- Post-trial, Grisham moved to suppress the recovered deleted files (arguing involuntary consent and exceeded scope); the trial court denied suppression; he also challenged sufficiency of evidence for the production count and sentencing enhancement for abuse of private trust.
- On appeal the Court of Criminal Appeals (applying Tennessee Supreme Court precedent decided during briefing) held the video did not meet the statutory definition of “sexual activity” (lascivious exhibition) and reversed that conviction, but concluded the evidence supported the lesser-included offense of attempted especially aggravated sexual exploitation of a minor; misdemeanor convictions were affirmed; case remanded for amended judgment and resentencing.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Grisham) | Held |
|---|---|---|---|
| Motion to suppress: voluntariness of consent / initial seizure | Consent was voluntary; officer secured phone, left time to decide, defendant then signed; seizure was permissible to preserve evidence | Consent was involuntary because officer forcibly seized phone, threatened to get a warrant, and promised expedited return of children if he signed | Issue of voluntariness was waived on appeal (not preserved in motion for new trial); plain-error review denied because recording/transcript not in record; initial seizure deemed permissible to preserve contraband/evidence |
| Motion to suppress: scope of consent (searching deleted files using forensic tools) | Consent authorized a "complete search" of phone; recovering deleted files falls within that scope | Written consent did not disclose use of sophisticated forensic tools to recover deleted files; exceeded consent | Issue waived for failure to raise pretrial with specificity; appellate review declined |
| Sufficiency of evidence for especially aggravated sexual exploitation (production) | Video, camera angle, defendant’s conduct (setting camera, licking lips, retrieving phone) and visible nudity support lascivious exhibition element | Video depicts everyday grooming in a small bathroom; not lascivious under Whited; insufficient to prove sexual activity | Reversed: video does not constitute lascivious exhibition under Whited; conviction vacated; entry of conviction for attempted production (lesser-included) directed and remand for resentencing |
| Sentencing enhancement (abuse of private trust) | Defendant’s role as step-father and exclusive access to the single family bathroom significantly facilitated the offense; enhancement appropriate | Position did not significantly facilitate commission of offense | Enhancement upheld; trial court may reapply on remand when resentencing for attempt |
Key Cases Cited
- State v. Whited, 506 S.W.3d 416 (Tenn. 2016) (explains that lasciviousness is a mixed question of fact and law and rejects reliance on Dost factors; reversed production convictions and allowed remand on attempt)
- Riley v. California, 134 S. Ct. 2473 (2014) (warrant required to search cell‑phone contents absent an exception; seizure to prevent evidence destruction permissible)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for appellate review of sufficiency: whether any rational trier of fact could find guilt beyond a reasonable doubt)
- State v. Parker, 350 S.W.3d 883 (Tenn. 2011) (appellate courts may reduce convictions to lesser-included offenses when evidence insufficient for greater offense but sufficient for lesser)
- State v. Maupin, 859 S.W.2d 313 (Tenn. 1993) (double jeopardy and retrial principles governing reversal for insufficient evidence and lesser-included offenses)