Issue: Can the State seize the real property of a defendant convicted of downloading child pornography where the only nexus between the unlawful behavior and the dwelling was that the computer was located in the dwelling?
Facts: Defendant was convicted for downloading child pornography in his house. The State executed a forfeiture warrant to seize Defendant’s real estate pursuant to TCA § 39-17-1008, which permits forfeiture of property “used in the commission of” the offense charged. After a trial, the trial court entered a forfeiture order. Defendant later filed a motion to include in the record the transcript of the ex parte forfeiture warrant hearing which occurred prior to trial.
Appellate Decision: The intermediate court upheld the forfeiture. First, the court held that Defendant waived the sufficiency of the forfeiture warrant by failing to request the transcript before trial. Second, the court determined that his real property was subject to forfeiture under the statute. Third, the court determined that the evidence was sufficient to show that the real estate was used “in the commission” of the crime because it (literally) housed his computer and contained the power outlets and internet connection used.
Review Granted: December 12, 2013.
Prediction: The Hotlist will not be making a prediction in this case, as Ben has been appointed by the Supreme Court to represent the Defendant, who had been representing himself from prison.