IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 3, 2017

STATE OF TENNESSEE v. ANDREW SHEARIN

Appeal from the Criminal Court for Shelby County

No. 14-02047 Lee V. Coffee, Judge

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No. W2016-02228-CCA-R3-CD

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The Defendant, Andrew Shearin, pled guilty in the Shelby County Criminal Court to 

sexual exploitation of a minor involving more than 100 images, a Class B felony, and 

was sentenced by the trial court as a Range I, standard offender to twelve years at 100% 

in the Department of Correction. On appeal, he argues that the trial court imposed an 

excessive sentence by misapplying enhancement factors. Following our review, we 

affirm the judgment of the trial court. 

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

Joseph A. McClusky (on appeal) and Jack Sherman (at sentencing), Memphis, 

Tennessee, for the appellant, Andrew Shearin.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and Bryce Phillips and Steve Ragland, 

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTS

On April 24, 2014, the Defendant was indicted by the Shelby County Grand Jury 

for sexual exploitation of a minor based on his possession of over 100 images involving 

minors engaged in sexual activity, a Class B felony. On April 4, 2016, the Defendant 

entered an open guilty plea to the indicted offense, leaving the sentencing to the trial 

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court’s determination. A transcript of the guilty plea hearing is not included in the record 

on appeal. According to the affidavit of complaint, the case stemmed from a July 19, 

2011, execution of a search warrant at the Defendant’s Memphis home, during which 

police officers discovered two computers containing over 100 images of minors engaged 

in sexual activity. The Defendant subsequently gave a signed statement admitting that he 

had downloaded and possessed the images found on his computers. 

At the September 30, 2016, sentencing hearing, the State introduced the 

Defendant’s presentence report, which reflected that the forty-three-year-old Defendant 

admitted prior use of marijuana and cocaine, including daily cocaine use from the age of 

29 or 30 to 31 or 32. 

The State’s only witness at the hearing was Lieutenant Wilton Cleveland of the 

Memphis Police Department’s Internet Crimes Against Children Unit, who conducted the 

forensic examination of the computers seized from the Defendant’s home. Lieutenant 

Cleveland testified that he identified a total of 1,717 “child pornographic images” on the 

computers, with 1,488 of the images matching “hash values” of known pornographic 

images contained in multiple databases, and the remainder being new, previously 

unknown images. He said most of the images were of prepubescent children. In addition 

to the 1,717 images, Lieutenant Cleveland found thirty-nine videos, with “thirty-five of 

those ha[ving] the hash match values of known [child pornographic] . . . videos.” The 

total run time of all the videos combined was six hours, forty-five minutes and twenty 

seconds. 

Lieutenant Cleveland testified that he had worked in the Internet Crimes Against 

Children Unit for close to a decade and that several of the videos in this case were 

“probably the worst that [he had] ever seen.” As an example, he testified that one of the 

videos, which “appear[ed] to be a compilation of a multiple timeframe,” showed a man 

having penile-vaginal intercourse with a child from the time she was approximately nine 

to ten months old until she was three years old. Although the same victim appeared 

throughout that video, there were “[h]undreds, if not thousands” of child victims shown 

during all the hours of videotape and the 1,717 still images. 

Lieutenant Cleveland testified that the Defendant admitted that he had downloaded 

the material. He recalled that the Defendant said he had been doing it for years and that 

he had used a neighbor’s Wi-Fi connection to do so. On cross-examination, Lieutenant 

Cleveland testified that most child pornographic images “are freely shared across [child 

pornography] networks.” 

The Defendant testified that his arrest in the instant case was the first time he had 

ever been arrested. He said he grew up in South Carolina, graduated in 1995 from 
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Coastal Carolina College, married immediately after graduation, and divorced seven 

years later after his wife became pregnant with another man’s child. In 2009, he moved 

to Memphis to work as the manager of a pizza store. He was in a brief relationship with a 

woman who had a two-year-old son, and both his girlfriend and her son lived with him in 

his Memphis apartment for approximately three months before they moved out in 

November 2010. 

The Defendant acknowledged that he had “downloaded copious amounts of . . . 

child exploitative videos and pictures” and said that he had become “addicted to it.” He 

could not remember why he began doing it, other than that he “was just going through a 

lot . . . [of] emotional turmoil [and] . . . depression.” He stated he had attended ten 

counseling sessions since his arrest, during which he had learned that he had been 

“suffering from long-term depression” and “social anxiety.” He explained his attraction 

to child pornography: “It was just . . . an emotional release, a sexual release. It was the 

only time I felt good. And even though I knew it might make someone else feel bad, I 

justified it that I wasn’t really hurting anybody. I wound up hurting everybody, I think.” 

The Defendant estimated that he looked at child pornography for approximately 

half an hour each night and said that he masturbated while doing so. He stated he never 

paid for the material or communicated with anyone else about it. He knew it was against 

the law, and he initially took steps to avoid being caught, “but after a while, [he] just 

stopped caring.” During that time, he was “on a downward spiral” of depression that was 

so severe that he contemplated suicide. 

The Defendant testified that he was not aware of the number of images that he had 

downloaded but that he had taken “full responsibility for what [he] did.” He said he 

always tried to treat everyone with respect and kindness, never had any intention of 

hurting anyone, and was sorry for his actions. He reiterated that he had tried to justify his 

actions to himself by the thought that no one was being hurt, but he now realized that he 

was “just fooling [him]self.” 

On cross-examination, the Defendant identified photographs showing a child’s 

bedframe and a children’s music CD that had been discovered in his home. He said the 

bedframe had been left behind by his former girlfriend and speculated that the CD might 

have been left behind by her as well. He testified that he had not downloaded child 

pornography when his ex-girlfriend and her child were living with him. He 

acknowledged he might have told the police that he had been downloading child 

pornography for a couple of years, but he said that he was very tired when he was being 

questioned and that it was “probably a couple of months” rather than two years. Upon 

further questioning, the Defendant initially said that he was not aware of having 
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downloaded child pornography prior to the time that his ex-girlfriend and her child lived 

with him but then acknowledged that he had. 

The Defendant acknowledged he told the officers that there might be “a couple 

hundred images” of child pornography on his computers. He said he was not aware of 

how many images were actually there. He further acknowledged that, by using file 

sharing sites, the images he downloaded could be uploaded by others from his computer. 

He testified he thought he “had it set up where nothing could be downloaded” off his 

computer, but he “guess[ed he] was wrong.” Finally, he identified photographs of two 

additional items found in his apartment, one of which he described as a “sex toy,” and the 

other as a “masturbation device.” 

Upon questioning by the trial court, the Defendant testified that, at the time of his 

arrest, he had “[p]robably” been downloading and viewing the child pornography for 

“closer to a year” than two months. He added, however, that the “time period [was] 

extremely hazy” and that he could be “off on the years.” 

The Defendant’s father, Troy Shearin, testified that the Defendant had been a good 

child who never gave him any problems. The Defendant was very smart and always did 

well in school but was reserved and timid and did not easily make friends. The 

Defendant became depressed after his divorce and, at one point, confided that he was 

using drugs. Mr. Shearin believed it was heroin, but the Defendant interrupted his 

testimony to correct that it was “[c]rack.” Mr. Shearin did not understand why the 

Defendant did what he did and was not sure if the Defendant himself understood. 

However, he knew that the Defendant was a good person, and he was prepared to support 

the Defendant in any way he could. 

At the conclusion of the hearing, the trial court found that the only possible factor 

in mitigation was the fact that the Defendant had accepted responsibility and pled guilty 

to the offense. The court, however, assigned it minimal weight, finding that the 

Defendant was not credible about how long he had been engaged in the illegal activity 

and that he was still trying to minimize his actions. The court found two enhancement 

factors applicable and entitled to, respectively, “great” and “significant” weight: that the 

Defendant had a history of criminal convictions or criminal behavior in addition to those 

necessary to establish his range, see Tenn. Code Ann. § 40-35-114(1) (2014), and that the 

Defendant allowed the victims to be treated with exceptional cruelty during the 

commission of the offense. See id. § 40-35-114(5). The court based its application of the 

first enhancement factor on the enormous number of child pornographic images in excess 

of the 100 images required for the offense, although it did also refer elsewhere in its 

ruling to the Defendant’s use of illegal drugs. The court found the exceptional cruelty 
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enhancement factor applicable because the Defendant was responsible for “spreading 

[the] poison” by his acts of downloading and viewing the images. 

The State proposed as additional enhancement factors that there was more than 

one victim and that a victim was particularly vulnerable due to age. See id. § 40-35-

114(3), (4). While it is not clear whether the trial court specifically found those 

enhancement factors applicable, it did find that the babies and very young children in the 

images and videos had “no capability of defending or protecting themselves against 

somebody raping them[.]” In its lengthy ruling, the court repeatedly expressed its 

outrage at the crime, referring to the Defendant’s behavior as “reprehensible” 

“monstrous,” and “horrifying.” The court also expressed its frustration with the 

Legislature for not providing “greater degrees of punishment” for a person who possesses 

such an extremely large volume “of images involving rape and exploitation of children.” 

Accordingly, the trial court sentenced the Defendant as a Range I offender to twelve 

years at 100%, the maximum sentence allowed for a Range I offender convicted of a 

Class B felony. Pursuant to the sexual exploitation of a minor statute, the court ordered 

that the sentence be served at 100% release eligibility. 

ANALYSIS

The Defendant contends that the trial court improperly enhanced his sentence by 

erroneously applying enhancement factors (1) and (5). He argues that the trial court 

misapplied enhancement factor (1) because “[t]here was no proof that [the Defendant] 

had any history of criminal behavior aside from the crimes [sic] for which he was being 

sentenced.” He argues that the trial court misapplied enhancement factor (5) because he 

“did not have any contact, directly or indirectly, with the victims” and because there was 

no showing of a degree of cruelty “distinct from and appreciably greater than that 

incident to the crime” as required under State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997), 

for the application of the exceptional cruelty enhancement factor. The Defendant 

additionally argues that enhancement factor (3) is inapplicable because our Legislature 

clearly contemplated that the offense would involve more than one victim by requiring 

possession of a minimum of 100 images to elevate the crime to a Class B felony. The 

State responds by arguing, among other things, that the trial court’s sentencing comports 

with the principles of sentencing and should be affirmed. 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;
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(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) (2014).

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 the sentencing decision of the trial court will be upheld “so long as it is 

within the appropriate range and the record demonstrates that the sentence is otherwise in 

compliance with the purposes and principles listed by statute.” State v. Bise, 380 S.W.3d 

682, 709-10 (Tenn. 2012). Although the trial court should consider enhancement and 

mitigating factors, the statutory enhancement factors are advisory only. See Tenn. Code 

Ann. § 40-35-114; see also Bise, 380 S.W.3d at 701. Moreover, a trial court’s 

“misapplication of an enhancement or mitigating factor does not invalidate the sentence 

imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.” 

Bise, 380 S.W.3d at 706. 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 purposes and principles of our Sentencing Act.” Id. at 707.

We conclude that the trial court did not abuse its discretion by imposing the 

maximum sentence within the Defendant’s range. Given the broad discretion afforded 

the trial court in sentencing, we find it unnecessary to conduct a detailed analysis of the 

proposed or applied enhancement factors. We do note, however, that, contrary to the 

Defendant’s assertion, there was proof in the record that the Defendant engaged in 

criminal behavior, in the form of illegal drug use, in addition to his possession of child 
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pornography. Even if the trial court erred by its application of the exceptional cruelty 

enhancement factor, the record reflects that the trial court properly considered the 

enhancement and mitigating factors and the principles and purposes of sentencing before 

imposing a sentence within the applicable range for the Defendant’s Class B felony. 

Accordingly, we affirm the sentence imposed by the trial court. 

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the 

trial court. 

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ALAN E. GLENN, JUDGE