State of Tennessee v. Carrington Owens ( 2020 )


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  •                                                                                          03/09/2020
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs October 16, 2019
    STATE OF TENNESSEE v. CARRINGTON OWENS
    Appeal from the Circuit Court for Montgomery County
    No. CC16-CR-497 William R. Goodman III, Judge
    No. M2018-01830-CCA-R3-CD
    The Defendant, Carrington Owens, was convicted by a Montgomery County Circuit
    Court jury of four counts of rape of a child, a Class A felony; twenty-three counts of
    especially aggravated sexual exploitation of a minor, a Class B felony; and twelve counts
    of aggravated sexual battery of a child less than thirteen years of age, a Class B felony.
    See T.C.A. §§ 39-13-522 (Supp. 2007, 2010, Supp. 2011) (rape of a child), 39-17-1005
    (2006) (subsequently amended) (especially aggravated sexual exploitation of a minor),
    39-13-504 (2018) (aggravated sexual battery). He is serving an effective thirty-seven-
    year sentence for his convictions. On appeal, he contends that the trial court erred in
    denying his motion to suppress evidence from a search of his home and that he was
    denied the right to confront his accuser face-to-face. We affirm the judgments of the trial
    court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
    ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
    CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.
    Gregory D. Smith (on appeal) and Travis Meeks (at trial), Clarksville, Tennessee, for the
    Appellant, Carrington Owens.
    Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
    Attorney General; John W. Carney, Jr., District Attorney General; Kimberly Lund,
    Assistant District Attorney General, for the appellee, State of Tennessee.
    OPINION
    The Defendant’s convictions relate to sexual abuse of two victims, the daughter of
    a woman with whom the Defendant had a relationship and the Defendant’s daughter with
    the woman. At the trial, the State introduced photographic evidence of the offenses,
    which had been recovered from the Defendant’s computer following the execution of a
    search warrant at the Defendant’s apartment, as well as the testimony the older victim,
    who was not the Defendant’s daughter. On appeal, the Defendant does not challenge the
    sufficiency of the evidence to support his convictions. Thus, our review of the evidence
    is limited to that which is relevant to the Defendant’s two appellate issues.
    I
    Denial of Motion to Suppress
    The Defendant filed a pretrial motion to suppress the evidence obtained from the
    search of his apartment on the basis that the affidavit which was used to obtain the
    warrant contained stale information. The parties filed extensive memoranda relative to
    the issue and submitted the matter for the trial court’s consideration without an
    evidentiary hearing.
    In a May 13, 2014 affidavit, Montgomery County Sherriff’s Investigator Bishop
    Delaney sought a search warrant for an apartment at a specified address and a specified
    vehicle. The items to be seized included computer hardware and related devices, which
    were believed to contain evidence of violations of the sexual exploitation of a minor
    statute. The affiant stated that, on September 21, 2013, he identified an Internet Protocol
    (IP) address as a potential download source of at least twenty-nine files of investigative
    interest relative to child pornography. He stated that a computer using the same IP
    address recently had been detected by one or more investigators searching for child
    pornography. The affiant stated that, on October 3, 2013, he downloaded a file from the
    IP address which contained a five-minute, fifty-nine second video of a prepubescent
    female child engaged in sexual activity with an adult male. The affiant stated that the
    internet provider’s records were subpoenaed and revealed that the Defendant was the
    subscriber of the services at the stated IP address and that the Defendant’s physical
    address was at a specified apartment in Clarksville. The affiant did not state the date the
    subpoena was issued and the date the records were received from the internet provider.
    The affiant requested that a search warrant be issued for the apartment at the specified
    address.
    The Defendant argued in a memorandum filed with his motion to suppress that the
    information regarding “the nexus between the criminal activity and the place to be
    searched” was stale because of the passage of seven months between the officer’s receipt
    of the relevant information and the issuance of the search warrant. Significantly, the
    Defendant did not argue that the information in the affidavit related to alleged criminal
    activity was stale. He argued, “It was not a reasonable presumption of the issuing
    magistrate that the defendant was still residing at the same apartment seven months after
    the fact.” He argued, further, “The State should have been required to corroborate that
    -2-
    the same criminal defendant continued to reside at the same apartment seven months after
    the fact before they were allowed to obtain a search warrant for that particular
    apartment.” The Defendant also argued that two unreported cases, State v. Domnick
    Doria, No. M2014-01318-CCA-R3-CD, 
    2016 WL 1694120
    (Tenn. Crim. App. Apr. 26,
    2016), perm. app. denied (Tenn. Aug. 17. 2016), overruled on other grounds by State v.
    Miller, 
    575 S.W.3d 807
    , 812-13 (Tenn. 2019), and State v. Robert D. Ewing and Anthony
    T. Ewing, No. E2013-01587-CCA-R3-CD, 
    2014 WL 2609463
    (Tenn. Crim. App. June
    11, 2014), established “the outer limits of how long the state can sit on information
    before the Appellate Courts would allow them to apply for a search warrant.” The
    Defendant argued that Domnick Doria permitted a search after three months, that Robert
    D. Ewing permitted a search after four months, and that “[y]ou would have to add those
    two cases together to get the lapse of time between the observation of relevant
    information and the application of the search warrant in the case at bar.”
    The State filed a response to the motion, which alleged additional facts related to
    the investigation and to the timing of the affidavit requesting a search warrant. These
    allegations of fact included the dates that Investigator Delaney had been on leave during
    the delay and the date shortly before the request for a search warrant when Investigator
    Delaney spoke with the manager of the Defendant’s apartment to confirm that the
    Defendant was still a resident. Notably, these allegations had not been included in the
    affidavit for the search warrant.
    The Defendant filed additional memoranda, in which he argued that a judicial
    review of probable cause was limited to the information contained in the affidavit upon
    which the search warrant was issued and that the affidavit in this case contained no
    allegations that the Defendant’s address was verified after October 3, 2013. The
    Defendant also reiterated his previous arguments.
    The State filed an additional memorandum, in which it argued that the information
    asserted in the affidavit had not become stale and that the issuing magistrate reasonably
    concluded from the information contained in the affidavit that the Defendant still lived at
    the apartment address listed.
    In its order denying the motion to suppress, the trial court found that the search
    warrant had been issued and executed on May 13, 2014, approximately seven months
    after the October 3, 2013 date that the specified IP address had been associated with a
    download of child pornography. The court found that the Defendant’s residing in an
    apartment “subject to a lease of less than one year is not sufficient to create a different
    standard for individuals who reside in rented apartments.” The court rejected, as well,
    the Defendant’s argument that two Court of Criminal Appeals cases holding that delays
    of three months and four months between the discovery of the information and the
    -3-
    issuance of the warrants established the outer limits of an acceptable delay between the
    discovery of information related to criminal activity and the issuance of a search warrant.
    On appeal, the Defendant argues that the pivotal issue is, “[W]hen does child
    pornography information become stale for probable cause to search scenarios?” He
    argues that the delay in this case “far exceeds any pre-existing Tennessee delay for
    probable cause.” Thus, he contends that probable cause did not exist because the
    information used to obtain the warrant was stale. The State counters that pornographic
    images stored on a computer are capable of being maintained indefinitely, that the place
    to be searched was the Defendant’s residence, and that the information relied upon for
    issuance of the search warrant was not stale.
    The Fourth Amendment to the United States Constitution and Article I, Section 7
    of the Tennessee Constitution protect individuals from unreasonable searches and
    seizures. See U.S. Const. amend. IV; Tenn. Const. art. 1, § 7. The protections of Article
    I, Section 7 of the Tennessee Constitution are coextensive with those of the Fourth
    Amendment. State v. Tuttle, 
    515 S.W.3d 282
    , 307 (Tenn. 2017).
    In Tennessee, a search warrant must be issued on a finding of probable cause and
    supported by an affidavit that “sets forth facts tending to establish” probable cause.
    T.C.A. §§ 40-6-103, -104; see State v. Williams, 
    193 S.W.3d 502
    , 506 (Tenn. 2006).
    “Probable cause generally requires reasonable grounds for suspicion, supported by
    circumstances indicative of an illegal act.” 
    Williams, 193 S.W.3d at 506
    (citing State v.
    Stevens, 
    989 S.W.2d 290
    , 293 (Tenn. 1999)). The issuing magistrate should use common
    sense when determining whether the affidavit supports a finding of probable cause. State
    v. Carter, 
    160 S.W.3d 526
    , 533 (Tenn. 2005). In this regard, the magistrate must
    determine, based upon all the information before him, where a fair probability exists that
    contraband or evidence of a crime will be discovered in the location to be searched.
    Illinois v. Gates, 
    462 U.S. 213
    , 238 (1983). In assessing the factual assertions contained
    in the affidavit, the magistrate must determine whether a substantial basis exists to
    support probable cause based upon the totality of the circumstances. 
    Tuttle, 515 S.W.3d at 300
    . We review an issuing magistrate’s probable cause determination with great
    deference. Id.; State v. Melson, 
    638 S.W.2d 342
    , 357 (Tenn. 1982) (citing United States
    v. Melvin, 
    596 F.2d 492
    , 498 (1st Cir. 1979)).
    Our standard of review in determining whether a search warrant is based upon
    probable cause is “whether, in light of all the evidence available, the magistrate had a
    substantial basis for finding probable cause.” State v. Meeks, 
    876 S.W.2d 121
    , 124
    (Tenn. Crim. App. 1993). “In reviewing the existence of probable cause for issuance of a
    warrant, we may consider only the affidavit and may not consider any other evidence
    known by the affiant or provided to or possessed by the issuing magistrate.” 
    Carter, 160 S.W.3d at 533
    ; see 
    Tuttle, 515 S.W.3d at 299
    . A supporting affidavit must establish a
    -4-
    nexus between the criminal activity, the place to be searched, and the things to be seized.
    State v. Saine, 
    297 S.W.3d 199
    , 206 (Tenn. 2009) (citing State v. Reid, 
    91 S.W.3d 247
    ,
    273 (Tenn. 2002)). “Courts also should consider the nature of the property sought, the
    normal inferences as to where a criminal would hide the evidence, and the perpetrator’s
    opportunity to dispose of incriminating evidence.” 
    Reid, 91 S.W.3d at 275
    .
    A trial court’s findings of fact on a motion to suppress are conclusive on appeal
    unless the evidence preponderates against them. State v. Odom, 
    928 S.W.2d 18
    , 23
    (Tenn. 1996); State v. Jones, 
    802 S.W.2d 221
    , 223 (Tenn. Crim. App. 1990). Questions
    about the “credibility of the witnesses, the weight and value of the evidence, and
    resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
    of fact.” 
    Odom, 928 S.W.2d at 23
    . The prevailing party is entitled to the “strongest
    legitimate view of the evidence and all reasonable and legitimate inferences that may be
    drawn from that evidence.” State v. Keith, 
    978 S.W.2d 861
    , 864 (Tenn. 1998); see State
    v. Hicks, 
    55 S.W.3d 515
    , 521 (Tenn. 2001). A trial court’s application of the law to its
    factual findings is a question of law and is reviewed de novo on appeal. State v. Yeargan,
    
    958 S.W.2d 626
    , 629 (Tenn. 1997).
    On appeal, a reviewing court considers only the affidavit and not any other
    evidence known by or provided to the issuing magistrate. 
    Tuttle, 515 S.W.3d at 299
    .
    The reviewing court must determine “whether the evidence viewed as a whole provided
    the magistrate with ‘a substantial basis for concluding that a search warrant would
    uncover evidence of wrongdoing.’” 
    Id. (quoting State
    v. Jacumin, 
    778 S.W.2d 430
    , 432
    (Tenn. 1989) overruled on other grounds by 
    Tuttle, 515 S.W.3d at 307
    )).
    The question of staleness of the information in the affidavit accompanying a
    search warrant is made on a case-by-case basis. State v. Norris, 
    47 S.W.3d 457
    , 470
    (Tenn. Crim. App. 2000); 
    Meeks, 876 S.W.2d at 124
    . In determining whether the lapse
    of time between criminal activity and the issuance of a warrant may affect the likelihood
    that incriminating evidence will be discovered if a warrant is issued, the magistrate
    “should consider whether the criminal activity under investigation was an isolated event
    or of a protracted and continuous nature, the nature of the property sought, and the
    opportunity those involved would have had to dispose of incriminating evidence.”
    
    Meeks, 876 S.W.2d at 124
    -25 (citing Sgro v. United States, 
    287 U.S. 206
    , 210-11
    (1932)). As a general principle, information regarding ongoing criminal activity does not
    become stale due to the passage of time. 
    Norris, 47 S.W.3d at 470
    (citing State v.
    Thomas, 
    818 S.W.2d 350
    , 357 (Tenn. Crim. App. 1991)).
    The affidavit used to obtain the search warrant in this case contains two types of
    identifying information: the nature of the evidence sought and the location where it was
    believed to be stored. With regard to the nature of the evidence sought, this court has
    observed that “‘child pornography is not a fleeting crime.’” Robert D. Ewing, 2014 WL
    -5-
    2609463, at *6 (quoting United States v. Paull, 
    551 F.3d 516
    , 522 (6th Cir. 2009); see
    Domnick Doria, 
    2016 WL 1694120
    , at *11. Rather, the collection and sharing of child
    pornography is of a continuous and ongoing nature and typically remains in possession of
    the user for an extended period of time.” Robert D. Ewing, 
    2014 WL 2609463
    , at *7.
    The Defendant argues that the age of the information in this case far exceeds that
    which was determined not to be stale in Robert D. Ewing and Domnick Doria. In Robert
    D. Ewing, the search warrant was not issued until approximately four months after the
    evidence of incriminating activity involving child pornography was discovered. See 
    id. at *6.
    Similarly, in Domnick Doria, this court affirmed the trial court’s determination that a
    delay of approximately three months between the discovery of incriminating activity
    involving child pornography and the issuance of a search warrant did not render the
    information too stale to support probable cause. Domnick Doria, 
    2016 WL 1694120
    , at
    *11. Our review of these cases reveals nothing that establishes three to four months as
    the point beyond which staleness occurs.
    Aside from Robert D. Ewing and Domnick Doria, Tennessee decisions on
    staleness in the child pornography realm are limited; however, federal cases provide
    additional guidance. For example, in Paull, the Sixth Circuit affirmed the denial of a
    motion to suppress evidence obtained pursuant to a search warrant which had been issued
    based upon information that the defendant had subscribed to a child pornography website
    thirteen months before the 
    search. 551 F.3d at 522
    . In United States v. Frechette, a case
    cited by the trial court in its order denying the motion to suppress in the present case, the
    court held that information of the defendant’s subscription to a child pornography website
    was not stale such as to deprive the authorities of probable cause for a search warrant,
    despite the passage of approximately fifteen months between the criminal activity and the
    
    search. 583 F.3d at 377-79
    . Likewise, in United States v. Gillman, 432 Fed. Appx. 513,
    515 (6th Cir. 2011), the court held that information regarding child pornography was not
    stale when used to obtain a warrant five months after the illegal activity involving the
    defendant’s IP address occurred.
    Regarding the question of staleness relative to the location where the evidence was
    stored, that is, the Defendant’s apartment, we note that the affidavit stated that the
    specified IP address was identified as a potential download source of twenty-nine files of
    interest in a child pornography investigation, that the affiant downloaded a file containing
    child pornography from the IP address, that the Defendant was identified as the internet
    subscriber assigned to the IP address, and that physical address associated with the
    Defendant’s internet subscription was the one identified in the affidavit as the location to
    be searched. The affidavit stated, as well, that the affiant believed “a user of a computer”
    at the specified physical address had a collection of child pornography which was being
    shared online. Although the Defendant argues that the information regarding his living at
    the address was stale, he has cited no authority to support his argument relative to the
    -6-
    length of apartment leases as affecting staleness of information of criminal activity and,
    thereby, probable cause.
    In reviewing Fourth Amendment issues relative to questions of staleness, federal
    courts have considered whether (1) the character of the crime as an isolated offense or a
    continuing course of conduct, (2) whether the Defendant was nomadic or residential, and
    (3) whether the location to be searched was a secure operational base or a forum of
    convenience. See United States v. Brooks, 
    594 F.3d 488
    , 493 (6th Cir. 2010); United
    States v. Maclin, 
    393 F. Supp. 701
    , 710 (N.D. Ohio 2019).
    According to the affiant, the Defendant had purchased internet service at the
    specified address, which indicates that the Defendant was residential and not nomadic as
    to the location, and because the location was his home, that it was a secure operational
    base. The information in the affidavit indicated that the IP address was associated with
    the residential address. It is a reasonable conclusion that a person who leases an
    apartment and purchases utility services, such as internet, intends to reside at the address
    for an extended period of time. Although the State alleged in a memorandum filed with
    the trial court that the affiant checked with the apartment complex’s manager the day
    before the search to confirm that the Defendant still lived there, this information is
    beyond consideration in the probable cause analysis because it was not included in the
    affidavit. See 
    Carter, 160 S.W.3d at 533
    ; see 
    Tuttle, 515 S.W.3d at 299
    .
    Upon review of the totality of the circumstances, in connection with relevant state
    and federal authorities, we conclude that the trial court in the present case did not err in
    its determination that the information in the affidavit was not stale and that probable
    cause existed for the issuance of a warrant. The specified IP address was used for
    downloading and sharing child pornography, which by its nature is an ongoing crime.
    The IP address was assigned to the Defendant, who was the internet service subscriber at
    the location to be searched. The Defendant is not entitled to relief on this basis.
    II
    Right to Confront Accuser
    The Defendant contends that he was denied his right to confront his accuser face-
    to-face, in violation of the Sixth Amendment to the United States Constitution and Article
    1, Section 9 of the Tennessee Constitution. He argues that, based upon the physical
    layout of the courtroom, he was unable to see the victim seated on the witness stand. The
    State responds that the Defendant’s right to confront his accuser was not abridged. We
    agree with the State.
    -7-
    The victim, who was age fourteen at the time of the trial, testified that the
    Defendant began touching her “lower spots” when she was around age five or six. She
    said he touched her with his hands and his “lower spot” on her clothes and on her skin.
    She said he made her touch his “lower front spot” with her hands. She said he touched
    her “lower front part” with his tongue when she was age six or seven. She said the
    touching occurred “a lot” and stopped when she moved to another state. She said the
    Defendant photographed her while making her touch his “lower part.” She said he took
    photographs of her by herself and thought he took photographs of her clothed and
    unclothed. She said he photographed her “[v]ery often.” She identified the Defendant by
    the nickname “Care Bear,” which other evidence showed was the owner listed in the
    computer that had been seized during the search of the Defendant’s apartment. The
    victim denied that her mother had sexually assaulted her and taken sexually explicit
    photographs of her. The victim acknowledged that, after her mother lost custody of her,
    she continued to visit her mother secretly until her father found out, but she denied that
    she and her mother discussed the criminal case. The victim denied that her mother had
    told her that if the victim “blamed everything” on the Defendant when the victim
    testified, the victim’s mother’s charges would be dismissed.
    Before the victim took the witness stand at the trial, defense counsel advised the
    trial court that, due to the angle of the witness chair, the person seated in the chair could
    not be seen from the defense table. Defense counsel stated, “I . . . haven’t seen a single
    witness this entire trial.” Counsel stated that if a witness sat close to the wall between the
    witness stand and the court’s bench, counsel could not see the witness. The court stated
    that counsel could “move over beside” the Defendant and “move the side of the table”
    but that the Defendant could not move to the other side of the courtroom. Counsel and
    the Defendant were permitted to move, and counsel advised the court that both could see
    the witness stand from their respective locations.
    Early in the victim’s direct examination, the prosecutor stated, “I saw you do a
    hand gesture, and the only problem with that is, the lady in front of you can’t write that
    down, okay?” The prosecutor then asked the victim if the Defendant was in the
    courtroom, and she replied that he was. Defense counsel immediately advised the trial
    court during a sidebar conference that the victim had moved close to the wall between the
    witness stand and the bench, that “our” view was obstructed, and that he had been
    advised that the victim had pointed during her testimony but that he had been unable to
    see it. The court stated that, during the lunch break, it would “play with moving the
    furniture.” The court noted that defense counsel had not complained about the
    Defendant’s having been unable to see previous witnesses, and counsel responded that
    the Defendant had been able to see the previous witnesses. The court stated that counsel
    could move “back over behind” a court officer and that the Defendant could move to
    another seat at the defense table but could not move to another part of the courtroom.
    Counsel advised the court, “It’s not going to help the matter. It’s just she’s tucked up
    -8-
    close to the wall and he can’t see . . . through your bench.” Counsel again stated that the
    witness had pointed “evidently” and that he had been unable to see it. He stated,
    however, that the Defendant had seen it. The court stated that the Defendant could sit
    anywhere in “the entire right side of the courtroom.”
    In a jury-out hearing after the victim’s testimony, defense counsel requested that
    the victim return to the stand “to find out if she was instructed . . . to hide out of [the
    Defendant’s] view[.]” The prosecutor stated that she advised the victim that the victim
    did not have to look at the Defendant but did not tell the victim to hide and never heard
    anyone else tell the victim to hide. The prosecutor said, “We were instructed she had to
    move over. The seat was moved over. She came in and sat there.” The prosecutor said
    the victim-witness coordinator had advised the victim of where the victim should sit. The
    prosecutor said that she had not seen the victim move the witness chair but that the victim
    “obviously did.”
    The victim returned to the witness stand for the out-of-jury hearing and testified
    that, before her previous testimony, she had been in the courtroom with her stepmother
    and “Donita Cavalot.” The victim said her stepmother stood at the defense table in order
    for the stepmother to determine whether the Defendant would be able to see her. She
    agreed she had been told she was allowed to move her chair closer to the wall in order to
    prevent the Defendant from seeing her. She was not asked who told her this. The victim
    agreed she had been told she did not have to look at the Defendant. She agreed she had
    been told “the first time [she] came in [the courtroom]” that she could “scoot over so that
    [she] didn’t have to look at him.” She also agreed that when she “came back in,” she had
    been told she had to leave her chair “right here,” which she later described as “in the
    middle.” She said no one told her she could scoot over to keep the Defendant from
    looking at her. She said no one told her she could “hide” from the Defendant but
    someone told her she could “move over a little” in order not to have to look at the
    Defendant. She said that from where she sat at the time of the jury-out hearing and from
    where she sat when she testified in front of the jury, she could see the Defendant. She
    said that from where she sat during the jury-out hearing, she could see the Defendant if
    she turned her head.
    Defense counsel informed the trial court that he could not see the victim. The
    court stated that the victim was sitting in the same location as when she testified
    previously. The court stated that the courtroom “sometimes . . . present[s] a challenge.”
    The court stated, “And I’m not going to address the propriety of instructing witnesses
    where they can locate their chairs when they testify. That’s not an issue.” The court
    stated its intent to seek funding to move the podium and tables in order to avoid future
    issues.
    Following a recess, the trial court made the following findings:
    -9-
    During the break we examined, for lack of a better description, the logistics
    or sight lines available in the courtroom, myself and the Court Officers,
    together with Ms. Alexander, and the witness and any individual seated in
    the chair.
    For purposes of the record, we have two tables that are fashioned
    together, where they form a right-angle. One table has the back to the
    Gallery. The table that’s pulled up to a 90-degree angle has its long side or
    back to the wall, and there’s a total of four chairs, two on each side of the
    table.
    It is possible for a witness then to see an individual who is seated in
    the chair, which has its back to the wall and is closest to the Gallery.
    At one point during the testimony of [the victim], the Defendant was
    seated in that chair, which has its back to the wall and I think he then
    moved to the chair that he’s currently in.
    In any event, now, granted it’s not an easy line of sight, but it is
    possible to see the witness by stretching your neck.
    The Defendant alleged in the motion for a new trial that he was deprived of his
    constitutional right to confront the victim. At the hearing on the motion, the Defendant
    testified that he had been unable to see the witness stand during the trial. He identified a
    photograph that had been taken during the trial and said it accurately demonstrated his
    visual perspective during the trial. The photograph, which was received as an exhibit,
    showed that the stationary podium was located such as to create a narrow viewing area
    for individuals seated at the defense table to see the witness stand. In addition, an
    unidentified individual, whom we presume was a court reporter or court clerk, sat in front
    of the bench at an angle that further narrowed the view of the witness stand from the
    defense table. The Defendant agreed that, at some point during the trial, he was “raised
    up on” his knee in order to see better. He said that he was aware the victim “may have
    used a gesture” during the trial but that he had been unable to see it.
    In its order denying the motion for a new trial, the trial court made the following
    findings of fact and conclusions of law:
    During the trial the defendant’s 6th Amendment rights were not violated.
    The Confrontation Clause does not guarantee a criminal defendant an
    absolute right to physical confrontation with a witness. In this case, the
    defendant and his attorney were permitted to move the table during a break.
    -10-
    Further, the defendant was advised that he could move his chair to a
    different location [at] the table which would have allowed for a different
    view of the minor victim. Ultimately the defendant chose not to move.
    The witness was present in the courtroom, provided testimony[, and] was
    subject to cross examination. The defendant’s 6th Amendment rights were
    in no way violated.
    ...
    The Court further finds that the proof in the case was overwhelming.
    The victim testified and identified the defendant. Computers containing
    child pornography were found in the possession of the defendant with login
    information relating to the defendant and witnesses testified regarding said
    evidence.
    The Confrontation Clause of the Sixth Amendment to the United States
    Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the
    right . . . to be confronted with the witnesses against him.” Likewise, Article I, Section 9
    of the Tennessee Constitution provides “[t]hat in all criminal prosecutions, the accused
    hath the right . . . to meet the witnesses face to face.” The Supreme Court has condemned
    the use of a screen to shield a child victim of sexual assault from a defendant during the
    victim’s testimony. Coy v. Iowa, 
    487 U.S. 1012
    (1988). The requirement that the
    Defendant physically be able to see a witness in the courtroom is not absolute, however.
    The Supreme Court has said that the use of a child’s testimony by closed-circuit
    television may be appropriate in limited circumstances. Maryland v. Craig, 
    497 U.S. 836
    (1990). In Tennessee, our supreme court has upheld a statute permitting admission of
    recordings of forensic interviews of child sexual abuse victims on the basis that the
    admission of evidence of this nature does not violate a defendant’s right to confront the
    witness. State v. McCoy, 
    459 S.W.3d 1
    (Tenn. 2014).
    The Defendant’s argument turns less on the law regarding confrontation than on
    the facts of the case. He argues that he could not see the victim and that the victim was
    instructed to hide from the Defendant. The trial court in the present case found that the
    Defendant had been seated in a chair from which the witness stand could be seen and that
    the Defendant had moved voluntarily to another chair at some point during the victim’s
    testimony. The court also found that the Defendant had been afforded the opportunity to
    move the defense table and to sit in a different chair. The court found, as well, that the
    Defendant had been present in the courtroom during the victim’s testimony and that he
    had been afforded the right to cross-examine her. The court rejected the Defendant’s
    allegation that the victim had been instructed to hide from the Defendant by positioning
    herself where he could not see her. The photograph exhibit introduced during the
    Defendant’s testimony at the motion for a new trial shows a less-than-ideal courtroom
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    configuration; however, it supports the trial court’s finding that the Defendant was not
    deprived of the opportunity to confront the victim face-to-face during her testimony. The
    court’s factual findings support its conclusion that no constitutional violation occurred.
    The Defendant is not entitled to relief on this basis.
    In reaching this conclusion, we have considered State v. Edward Foy, Jr., No.
    1123, 
    1990 WL 799
    (Tenn. Crim. App. Jan. 9, 1990), perm. app. denied (Tenn. May 14,
    1990), which the Defendant contends is relevant to a “blocked vison confrontation
    problem.” Edward Foy, Jr., dealt with the admission in a criminal prosecution of a
    physician’s deposition, despite the Defendant’s not having been present when the
    deposition was taken. In our view, Edward Foy, Jr., is factually distinguishable and does
    not provide guidance in the present case.
    In consideration of the foregoing and the record as a whole, the judgments of the
    trial court are affirmed.
    _____________________________________
    ROBERT H. MONTGOMERY, JR., JUDGE
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