Robert Donald Ehrhardt III v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-KA-01143-COA

ROBERT DONALD EHRHARDT III APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/15/2021
TRIAL JUDGE: HON. M. BRADLEY MILLS
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MERRIDA COXWELL
COURTNEY DENISE SANDERS
CHARLES RICHARD MULLINS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALLISON ELIZABETH HORNE
DISTRICT ATTORNEY: JOHN K. BRAMLETT JR.
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 05/02/2023
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., LAWRENCE AND EMFINGER, JJ.

EMFINGER, J., FOR THE COURT:

¶1. A Rankin County grand jury indicted Robert Donald Ehrhardt III on five counts of

child exploitation pursuant to Mississippi Code Annotated section 97-5-33(5) (Rev. 2020).

After a four-day jury trial beginning on June 14, 2021, Ehrhardt was found guilty of child

exploitation in all five counts of the indictment. He was sentenced to serve forty years in the

custody of the Mississippi Department of Corrections on each of the five counts, to be

released after serving twenty years on each count. All sentences were ordered to run

concurrently. Ehrhardt was also ordered to register as a sex offender and to be placed on

supervised probation for a period of five years upon his release from custody. Ehrhardt
appealed.

FACTS AND PROCEDURAL HISTORY

¶2. On December 21, 2016, Microsoft sent twenty-eight cybertips to the National Center

for Missing and Exploited Children (NCMEC). All twenty-eight cybertips were generated

as a result of Skype1 conversations between a Skype user with the username Qa.xi01 (Qa)

and two other Skype users, Jasrob47 and jonesjason327. Twenty-eight images containing

child exploitation material were uploaded and exchanged between these users. The cybertips

generated by Microsoft included the Internet Protocol (IP) address that had been used in

exchanging the images at issue.

¶3. On February 3, 2017, NCMEC sent all twenty-eight cybertips to the Mississippi

Attorney General’s Office. The case was assigned to Investigator Wayne Lynch who served

a grand jury subpoena on Comcast, the internet provider, for information regarding the IP

address associated with the tips. The subpoena requested that Comcast identify the name and

address of the party responsible for paying for the internet services associated with the IP

address used to exchange the child exploitation material during the Skype chats on December

21, 2016. On June 15, 2017, Comcast identified Ehrhardt as the person paying for the

service associated with the IP address at issue, and identified the physical address for the IP

address as 871 Willow Grand Circle, Brandon, Mississippi.

¶4. A search warrant was obtained and executed on the Willow Grand Circle address.

1
Skype is a telecommunication application operated by a division of Microsoft.
Skype is available on both desktop and mobile platforms and has multiple capabilities such
as file transferring, instant messaging, and video conferencing.

2
Twenty-four items were taken from Ehrhardt’s home, including computers, external hard

drives, Amazon Echo devices, cameras with SD cards, an Apple iPhone, and an Apple iPad.

Upon a forensic examination of these items, child exploitation material was found on an HP

computer tower, a Hitachi hard drive, a Western Digital hard drive, an Apple iPhone, and an

Apple iPad. Subsequently, the matter was presented to a Rankin County grand jury, which

returned an indictment charging Ehrhardt with five counts of child exploitation. After a jury

found Ehrhardt guilty on all five counts of the indictment, he filed a “Motion for Judgment

Notwithstanding the Verdict, or in the Alternative, for a New Trial.” The motion was denied,

and Ehrhardt timely perfected this appeal.

ANALYSIS

¶5. On appeal, Ehrhardt claims that his federal and state constitutional rights were

violated when the circuit court denied his motion for a mistrial during the direct rebuttal

examination of Investigator Charlie Rubisoff, and also by failing to suppress items found in

his home during the execution of a search warrant. Ehrhardt also alleges that the circuit court

committed reversible error when it denied his motion for a judgment notwithstanding the

verdict (JNOV) or a new trial.

I. Did the circuit court violate Ehrhardt’s federal and state
constitutional rights by denying his motions to suppress the items
found in the search of his home?

¶6. Our standard of review for the denial of a motion to suppress is set forth in Sutton v.

State, 238 So. 3d 1150, 1154-55 (¶13) (Miss. 2018):

“‘In reviewing a magistrate’s finding of probable cause, this Court does not
make a de novo determination of probable cause, but only determines if there

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was a substantial basis for the magistrate’s determination of probable cause.’”
Roach v. State, 7 So. 3d 911[, 917 (¶12)] (Miss. 2009) (quoting Petti v. State,
666 So. 2d 754, 758 (Miss. 1995)). Our review is guided by the
totality-of-the-circumstances analysis established by the United States
Supreme Court. Lee v. State, 435 So. 2d 674, 676 (Miss. 1983) (citing Illinois
v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527
(1983)). The United States Supreme Court in Gates detailed the test:

The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including
the “veracity” and “basis of knowledge” of persons
supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a
particular place. And the duty of a reviewing court is simply
to ensure that the magistrate had a “substantial basis for . . .
conclud[ing]” that probable cause existed.

Gates, 462 U.S. at 238-39, 103 S. Ct. 2317 (alteration in original) (quoting
Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697
(1960), overruled by United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547,
65 L. Ed. 2d 619 (1980)). In making this determination, “‘this Court looks
both to the facts and circumstances set forth in the affidavit for search warrant
and as well, the sworn oral testimony presented to the issuing magistrate.’”
Petti, 666 So. 2d at 757 (quoting Williams v. State, 583 So. 2d 620, 622 (Miss.
1991)). Further, “[t]he information necessary to establish probable cause
‘must be information reasonably leading an officer to believe that, then and
there, contraband or evidence material to a criminal investigation would be
found.’” Id. (quoting Rooks v. State, 529 So. 2d 546, 554-55 (Miss. 1988)).

(Emphasis added).

¶7. On February 20, 2018, Lynch presented an affidavit for a search warrant, along with

a statement of underlying facts and circumstances, to a Rankin County justice court judge for

authorization to search Ehrhardt’s home for electronic devices and evidence of child

exploitation material. The search warrant was issued that day and was executed on February

22, 2018, by Lynch, Investigator Jay Houston, Investigator Jack Lilly, Investigator Rubisoff,

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and several deputies with the Rankin County Sheriff’s Office. Five of the devices seized

during the search were found to contain child exploitation material.

¶8. Ehrhardt filed two motions to suppress evidence. First, Ehrhardt claimed that the

evidence seized during the search of his home should be suppressed because the information

relied upon by the State was stale. Next he argued the evidence should be suppressed

because the State did not show that the information it received from other sources was

reliable. We will address these issues separately below.

A. Staleness

¶9. Ehrhardt argues that the information supporting the issuance of the search warrant was

stale because nearly fourteen months had passed between the date that the IP address was

accessed as previously discussed, and the date that the search warrant was issued and

executed. Ehrhardt points out that the State presented no evidence of any other illegal

activity related to the IP address during that fourteen month period. Ehrhardt contends that

there was nothing presented by the State to connect him2 to any illegal conduct, except for

someone’s single, limited use of the IP address assigned to Ehrhardt’s home router over a

year earlier. Ehrhardt urges this Court to find that, because there was no more recent

information that supported the issuance of the search warrant, the information the State relied

upon was stale and the evidence should have been suppressed.

2
It is important to note that at the time the search warrant was issued, probable cause
for the search was directed at the IP address and all computers, cellular devices, electronic
equipment, and other items of physical evidence related to the IP address that may contain
evidence of child exploitation. The search warrant was not directed toward any particular
person’s use of the IP address.

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¶10. Similarly, in Renfrow v. State, 34 So. 3d 617, 626 (¶21) (Miss. Ct. App. 2009),

Renfrow argued that there was no probable cause to issue a search warrant because the

events that led the investigator to obtain the warrant occurred “nine or ten months” prior.

This Court held:

[I]t was reasonable for the judge who issued the search warrant to conclude
that images on a computer could still be recovered by forensic methods nine
or ten months after the children saw them. . . . Accordingly, because the
images were stored on a computer, the probable cause for [the
investigator’s]search warrant was not rendered stale by the passage of time.

Id. at 627 (¶26).

¶11. In the case at hand, Lynch’s statement of underlying facts and circumstances

represented to the justice court judge that the items sought in the warrant could be used as

storage devices for the illegal images and/or could be used as an instrumentality to access the

internet to either download or upload illegal images. The judge was further advised that

“child pornographers” commonly store such images as computer files. Lynch described how

a forensic examination could recover illegal images from devices even if they were “hidden,

erased, compressed, password-protected, or encrypted filed.” Applying this Court’s decision

in Renfrow to the facts of this case, Ehrhardt’s argument regarding the staleness of the

information contained in the cybertips is without merit. It was reasonable for the judge to

believe that any child exploitation material Ehrhardt had stored on his electronic devices at

the time of the NCMEC cybertip could still be found on his devices at the time the warrant

was issued.

B. Reliability

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¶12. Ehrhardt argues that Lynch relied upon information provided by Microsoft and

NCMEC to establish probable cause for the issuance of the search warrant for his residence.

He contends that “[w]hile the agent verified the content of images prior to seeking the

warrant, the process used by Microsoft to flag the images was never explained nor vouched

for in the affidavit.” Because there was no evidence to support the reliability of the

“cybertips,” Ehrhardt contends that his motion to suppress should have been granted.

¶13. Ehrhardt cites State v. Woods, 866 So. 2d 422 (Miss. 2003), Chesney v. State, 165 So.

3d 498 (Miss. Ct. App. 2015), and Roebuck v. State, 915 So. 2d 1132 (Miss. Ct. App. 2005),

as support for his reliability argument. He contends that because Lynch relied upon

information provided by third parties and outside his personal knowledge, Lynch was

required to establish that the information provided by Microsoft and NCMEC was credible

or reliable before the justice court judge issued the warrant.

¶14. In Woods, the circuit court granted Woods’s motion to suppress evidence gained by

the execution of a search warrant, and the court dismissed the then-pending charge of

possession of cocaine with intent to sell. Woods, 866 So. 2d at 425 (¶7). The State appealed,

and the Mississippi Supreme Court affirmed. Id. at 428 (¶21). The search warrant had been

issued based upon information provided to law enforcement by a female who was dating

Woods at the time. Id. at 424 (¶¶2, 5). The female was unknown by law enforcement and

had never been used as a confidential informant before. Id. at 426 (¶14). According to the

female, she gave the information to law enforcement because “Woods ‘was doing wrong and

. . . she wanted [the Unit] to take care of it for her.’” Id. at 424 (¶5).

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¶15. In Roebuck, a search warrant was obtained based upon information that narcotics were

being manufactured and sold at Roebuck’s residence. Roebuck, 915 So. 2d at 1135 (¶¶3-4).

The search warrant was based upon information that law enforcement received from two

unknown informants. Id. at 1138-39 (¶¶18-19). On appeal, this Court found that neither the

affidavit for a search warrant nor the oral testimony given to the issuing judge gave any

information at all regarding the informants’ veracity or reliability. Id. at 1040 (¶24). There

was no evidence that they had proved to be reliable in the past, and there was insufficient

efforts made to corroborate the information. Id.

¶16. In Chesney, Police Chief Richard Sistrunk received information from John Paul Dove

that Chesney was involved in an identity theft scheme. Chesney, 165 So. 3d at 501 (¶1).

Although a victim of the scheme had made a complaint, the affidavit to obtain a search

warrant for Chesney’s residence was based upon the information provided by Dove. Id. at

505 (¶17). In finding that the search warrant was not founded upon probable cause, this

Court said:

Based on the holdings in Woods and Roebuck, we find that the threshold
requirements for probable cause, to support the issuance of the original search
warrant, were not met. Chief Sistrunk admitted that he had only spoken with
Dove a couple of times and that he had never met him. There was nothing in
the affidavit, its underlying facts and circumstances, or the testimony to
establish that the information provided by the informant was credible or
reliable; nor was there any testimony that Chief Sistrunk attempted to
corroborate Dove’s statement through an additional independent investigation.

Id. at 506-07 (¶21).

¶17. The case at bar is substantially different than those relied upon by Ehrhardt. As noted

above, Investigator Lynch prepared an affidavit for a search warrant and attached as Exhibit

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A a “Statement of Underlying Facts and Circumstances.” He presented these documents to

the justice court judge in an effort to obtain a search warrant. He signed these documents

under oath before the justice court judge and discussed the case with the judge under oath.

He advised the judge that his investigation began as a result of computer-generated

“cybertips” he received from the NCMEC.3 He described the documentation he received as

computer-generated information from the “Skype” social networking site owned by

Microsoft. He evidenced his familiarity with the program by explaining how the program

allowed “Skype” users to connect directly with each other to share multimedia files, share

other content, and make live video calls to one another.

¶18. He testified that he viewed all twenty-eight images provided with the “cybertips” and,

based upon his training and experience, he confirmed that each of the images “depicts actual

children engaging in sexually explicit conduct as defined by Mississippi Law.” The cybertips

indicated that all twenty-eight of the illegal images were exchanged using the same IP

address on December 21, 2016. He confirmed, through information received in Comcast’s

response to a grand jury subpoena, that the IP address at issue was leased by Comcast and

was assigned to Don Ehrhardt, 871 Willow Grand Circle, Brandon, Mississippi, 39047. The

justice court judge found the information was sufficient to establish probable cause and

issued the search warrant. After hearing from both sides at the suppression hearing held prior

to trial, the circuit judge found the information was shown to be reliable and denied the

3
During the suppression hearing there was testimony that if internet service
providers, such as Microsoft, find sexually explicit materials involving children on their
platform, it is mandated by federal law that they report the information to NCMEC, which
will then distribute the information to the appropriate law enforcement agency.

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motions to suppress.

¶19. Caselaw, however, does not treat an “informant” such as Microsoft the same as a

confidential informant in a narcotics case or other unknown informants. Microsoft found

evidence of illegal activity on the platform that it owned and operated. It then reported the

information it obtained from its platform to NCMEC, as it was required to do by law.

NCMEC then provided that information to the appropriate law enforcement agency.

¶20. In Wolf v. State, 281 So. 2d 445, 448-49 (Miss. 1973), law enforcement was informed

by Wolf’s neighbor that he had observed what he believed to be marijuana growing on

Wolf’s land. Id. The neighbor was told that a search of Wolf’s land was not possible

without more information. Id. Subsequently, the neighbor went onto Wolf’s land and took

a few of the plants off the property. Id. He carried the plants to law enforcement who

determined that they were marijuana plants. Id. Law enforcement then obtained a search

warrant based upon the information provided by the neighbor. Id. Law enforcement did

nothing more to verify what they were told by the neighbor, or to establish the neighbor’s

reliability. Id. While law enforcement verified that the plants were marijuana plants, the

only information they possessed that the plants came from Wolf’s land was the statement by

Wolf’s neighbor. Id. Wolf moved to suppress the evidence subsequently seized upon

execution of the search warrant because the warrant was issued based only upon information

from the neighbor whose reliability and credibility were unknown. Id. In affirming the

circuit court’s denial of the motion to suppress, the supreme court reasoned:

A similar argument based upon Aguilar [v. Texas, 378 U.S. 108, 84 S. Ct.
1509, 12 L. Ed. 2d 723 (1964),] was dealt with by the United States Fifth

10
Circuit Court of Appeals on March 23, 1972, in United States v. Bell, 457 F.
2d 1231, 1238-1239 (5th Cir. 1972), as follows:

Although there is much sound and fury between the parties as to
the existence of probable cause to arrest, we choose not to
venture into the mostly visceral concept of probable cause, for
a specter has arisen in this case that deserves to be laid to rest.
It is now a well-settled and familiar concept, as enunciated
by Aguilar and Spinelli [v. United States, 393 U.S. 410
(1969)], that supporting affidavits in an application for a
search warrant must attest to the credibility of an informant
and the reliability of his information. See also United States
v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723
(1971). We have discovered no case that extends this
requirement to the identified bystander or victim-eyewitness
to a crime, and we now hold that no such requirement need
be met. The rationale behind requiring a showing of credibility
and reliability is to prevent searches based upon an unknown
informant’s tip that may not reflect anything more than idle
rumor or irresponsible conjecture. Thus, without the
establishment of the probability of reliability, a ‘neutral and
detached magistrate’ could not adequately assess the probative
value of the tip in exercising his judgment as to the existence of
probable cause. Many informants are intimately involved with
the persons informed upon and with the illegal conduct at hand,
and this circumstance could also affect their credibility. None
of these considerations is present in the eyewitness situation
such as was present here. Such observers are seldom involved
with the miscreants or the crime. Eyewitnesses by definition are
not passing along idle rumor, for they either have been the
victims of the crime or have otherwise seen some portion of it.
A ‘neutral and detached magistrate’ could adequately assess the
probative value of an eyewitness’s information because, if it is
reasonable and accepted as true, the magistrate must believe that
it is based upon first hand knowledge. Thus we conclude that
Aguilar and Spinelli requirements are limited to the informant
situation only.

While it is true that the officers who executed the affidavit had not been
previously acquainted with Wolf’s neighbor who supplied the information,
either personally or officially, and had no previous experience as to his
reliability based on former tips, or otherwise, in this case the informant was an

11
‘eyewitness’ to the growing of the marijuana, which he had observed simply
by looking across the imaginary line separating his from Wolf’s property. His
statements with respect to it were supported and borne out when he took
several of the plants to the police where it was identified by them as being
marijuana. We conclude that the information in the hands of the officers was
ample, and was sufficiently set out in detail in the affidavit, to justify a finding
of probable cause and the issuance of the warrant. The trial court did not err
in overruling the motion to suppress.

Wolf, 281 So. 2d at 448-49 (emphasis added). Following that authority, in Walker v. State,

473 So. 2d 435, 438 (Miss. 1985), the supreme court reasoned:

With reference to this part of the affidavit, appellant contends that the
reliability of the eyewitness to the shooting was not shown and that this was
necessary. We have considered this argument in at least three cases and have
held that, when information is furnished by an eyewitness rather than from an
informant, there is no need to show the party supplying the information was a
credible person. Foley v. State, 348 So. 2d 1034 (Miss. 1977); Holt v. State,
348 So. 2d 434 (Miss. 1977); and Wolf v. State, 281 So. 2d 445 (Miss.1973).

See also Bailey v. State, 981 So. 2d 972, 976 (¶13) (Miss. Ct. App. 2007) (stating that the

“rationale for the victim or eyewitness exception is that the statements of such eyewitnesses

are based on their own observation and thus are not likely to reflect mere ‘idle rumor or

irresponsible conjecture’” (quoting Walker v. State, 473 So. 2d 435, 438-39 (Miss. 1985))).

¶21. We find that the information supplied by Microsoft, through NCMEC, was in the

nature of a bystander or victim-eyewitness as described above. Microsoft found evidence

of criminal activity on the platform that they own and manage. Clearly, the information

provided by Microsoft was “more than idle rumor or irresponsible conjecture.” Wolfe, 281

So. 2d at 448. Lynch verified the nature of the images and that the identified IP address was

located at a residence in Rankin County, Mississippi. We find that under the totality of the

circumstances, there was a “substantial basis” for the justice court judge to find that there

12
was probable cause to believe that evidence of child exploitation could be found at

Ehrhardt’s residence. This issue is without merit.

II. Was Ehrhardt’s federal and state constitutional right to a fair trial
violated when the circuit court denied his motion for a mistrial?

¶22. “The decision to grant a mistrial rests within the sound discretion of the trial court.

This Court will reverse the trial court’s decision only for an abuse of discretion.” Osborne

v. State, 54 So. 3d 841, 843 (¶4) (Miss. 2011) (citation omitted). “A mistrial is not warranted

every time the jury is exposed to inadmissible evidence. The trial court may only grant a

mistrial when the harm done would render the defendant without hope of receiving a fair

trial. A mistrial is appropriate when misconduct by a party creates substantial and irreparable

prejudice.” Lepine v. State, 10 So. 3d 927, 941 (¶39) (Miss. Ct. App. 2009) (citations and

internal quotation marks omitted).

¶23. Ehrhardt claims that the circuit court violated his right to a fair trial by denying his

motion for a mistrial after Investigator Rubisoff made an improper and inflammatory

comment during the State’s rebuttal examination. The following exchanged occurred

between the State and Rubisoff during his rebuttal examination:

Q. You heard the Defendant’s testimony about possibilities that his
devices were compromised. Did you see any evidence of that?

A. I did not. And I want to discuss that a little bit. One of my obligations
is to find the facts and investigations. That’s the truth. I’ve got an
obligation to try to disprove as much as prove. In the course of this
investigation, I’ve looked for what we call exculpatory information,
information that may indicate that Mr. Ehrhardt is not responsible for
what the State has alleged has occurred. And in the course of this
investigation, I made a thorough review of the information on these
items that you see before you. The defense counsel has gotten their

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own expert to look at these items, to review the information, had
opportunities to produce a report in support of the existence of an
intrusion --

Before Rubisoff could give any further testimony about the defense’s expert, defense counsel

objected to Rubisoff’s testimony and moved for a mistrial. Defense counsel also requested

that the jury be instructed to disregard Rubisoff’s testimony and that a written jury instruction

be given regarding the burden of proof in a criminal trial. The State argued that it was not

its intention for Rubisoff “to go there with that question.” After a brief bench conference,

the circuit court instructed the jury as follows:

Ladies and gentlemen, sidebar consulting with counsel for the State and the
Defendant, I believe that the testimony just proffered about a witness that did
not testify in this case or an expert that didn’t testify in this case or anything
that hasn’t been put into evidence was improper and that should be
disregarded. You’re not to take that into consideration, okay? With that said,
I’ll let [the State’s attorney] continue her questioning.

Ehrhardt claimed that Rubisoff’s testimony improperly shifted the burden of proof and was

highly prejudicial. He claimed that a jury instruction could not cure the damage done by

Rubisoff’s statement. The State argued that Rubisoff’s unsolicited statement was brief and

that an instruction to the jury to disregard the statement would be appropriate. Ehrhardt’s

motion for a mistrial was ultimately denied. During the jury instruction conference, defense

counsel requested that the jury be instructed again concerning Rubisoff’s statement. Without

objection by the State, the court gave the following instruction:

During examination of the State’s expert witness, you heard him allege that the
Defense had an expert witness examine the data in this case and come to
certain conclusions. This was improper testimony by the State’s expert
witness.

14
The type of experts commented on by the State’s witness are called consulting
experts, and they do not share their opinions about the case with the State of
Mississippi. You must entirely disregard this improper testimony from the
State’s expert witness.

Further, the State’s expert witness commenting that the Defense did not call
its consulting expert to testify, seemed to imply that the burden of proof had
shifted from the State to the Defense. That comment was improper. You must
entirely disregard any implication or effort by the State to shift its burden to
the Defense through that comment. The burden of proving the Defendant
guilty beyond a reasonable doubt is always with the State. The Defendant
never has to prove his innocence.

¶24. In Bankhead v. State, 299 So. 3d 853, 858-59 (¶21) (Miss. Ct. App. 2020), this Court

explained:

The trial judge “is in the best position to determine if a remark is truly
prejudicial” and has “the discretion to determine whether [an] objectionable
comment is so prejudicial that a mistrial should be declared.” Reynolds v.
State, 585 So. 2d 753, 755 (Miss. 1991); Hampton v. State, 910 So. 2d 651,
655 (¶9) (Miss. Ct. App. 2005). “When serious damage does not result, the
judge should admonish the jury to disregard the impropriety.” Pittman v.
State, 928 So. 2d 244, 249 (¶12) (Miss. Ct. App. 2006) (citing Hoops v. State,
681 So. 2d 521, 528 (Miss. 1996)). It is presumed the jury follows the trial
court’s instructions. Puckett v. State, 737 So. 2d 322, 347 (¶72) (Miss. 1999).

In the case at hand, the circuit court determined that the State did not purposefully solicit

Rubisoff’s improper testimony. The circuit court further determined that Ehrhardt’s timely

objection prevented any irreparable harm. Not only did the judge immediately direct the jury

to disregard Rubisoff’s improper testimony, he also gave the jury a written instruction

addressing the matter. We presume the jury followed the court’s instruction. Therefore,

Ehrhardt’s argument regarding the denial of his motion for a mistrial is without merit.

III. Did the circuit court err in denying Ehrhardt’s motion for a JNOV
or alternatively a new trial because the verdict was against the
overwhelming weight of the evidence?

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A. Motion for JNOV and Sufficiency of the Evidence

¶25. “A motion for a JNOV challenges the legal sufficiency of the evidence. The standard

of review is de novo. The reviewing court will affirm the denial of the motion when

substantial evidence supports the verdict. Evidence will be reviewed in the light most

favorable to the verdict.” Winner v. CSX Transp. Inc., 100 So. 3d 478, 486 (¶28) (Miss. Ct.

App. 2012) (citations omitted).

¶26. Ehrhardt alleges that the State failed to present sufficient evidence to convict him of

the crimes for which he was charged. While it is undisputed that there was child exploitation

material on his devices, Ehrhardt claims that without evidence that he knowingly possessed

the child exploitation material, the evidence was insufficient to support the verdict. Ehrhardt

claims that his devices were hacked and that he had no knowledge of the presence of child

exploitation material. However, the State alleges that the information recovered from

multiple devices in Ehrhardt’s possession clearly proved that Ehrhardt had knowledge that

the material was present.

¶27. On February 22, 2018, twenty-four items were taken from Ehrhardt’s residence,

including computers, external hard drives, Amazon Echo devices, cameras with SD cards,

an Apple iPhone, and an Apple iPad. Child exploitation material was found on five of those

devices: an HP computer tower, a Hitachi hard drive, a Western Digital hard drive, an Apple

iPhone, and an Apple iPad. Testimony at trial showed that from those five devices, sixty-

nine images were found on the HP tower, 281 files were found on the Hitachi hard drive,

twenty-seven images and eight video files were found on the Western Digital hard drive,

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thirty-five images were found on the Apple iPhone, and thirteen videos and five images were

found on the Apple iPad. Approximately 317 images were discovered across all of the

devices with creation dates dating back as far as 2008. When Rubisoff was asked at trial why

he believed that Ehrhardt’s devices had not been hacked, he testified as follows:

The primary reason I believe that, these items were collected from Mr.
Ehrhardt’s home; they were in use by Mr. Ehrhardt at the time of the seizure;
they represent a variety of technologies, a variety of systems that if we were
to entertain that he was hacked would describe almost a fantastical level [of]
technical skill and [prowess]. I’m not exaggerating this when I say this
because the existence of such hacking technology could potentially have a shift
on geo politics in the world. This is like building a hydrogen bomb to warm
up a hot pocket. You don’t have to go through all of this work breaching
Windows systems, XP and Windows 10. Cutting edge technology is in place
at the time with Apple because they’re iOS devices. [T]o get child
pornography, unfortunately, it’s not particularly difficult to acquire this type
of horrid material. So because of the variety of devices involved, because of
the continued use of Mr. Ehrhardt of these devices, because of his expertise
and training and experience in technical matters, no, it’s not my opinion that
this is hacking at all.

He further testified:

Again, revisiting some of my earlier testimony, we have a number of separate
devices. We have Windows computers, both Window XP and Windows 10.
They are functionally and separate operating systems, different technologies.
In order to exploit those systems, you’re going to have to have an exploit or a
virus or some type of program or process that will provide access to that
specific system. In addition to the separate Windows systems, we also have
Apple devices. And the breadth of the activity, so this, again, spans for many
years, many devices, and the lack of any shared characteristics among the
devices other than the ownership by Mr. Ehrhardt leads me to think that this
is not hacking.

Rubisoff also testified that he was able to extract pictures from Ehrhardt’s vault storage on

his iPhone, which was dually encrypted by a phone pass code (2020) as well as a similar

second passcode (3030). The second passcode was retrieved through an examination of a

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different device, Ehrhardt’s iPad. Ehrhardt admitted that he set up the storage vault on his

iPhone to store pictures of his dog and denied knowledge of child exploitation material

contained in the vault. The recovery of Facebook and URL records dating back to March 28,

2010, showed contemporaneous activity between Ehrhardt’s Facebook account and internet

searches for child exploitation material. More specifically, records showed that Ehrhardt’s

Facebook profile was accessed and then a file containing “preteen hard core identifiers” was

viewed within five minutes. Another such contemporaneous search occurred on October 28,

2010. When Rubisoff examined Ehrhardt’s computer to search for the Skype application

implicated in the cybertip, Skype was no longer installed; however, there was Skype-related

application data still stored to the computer in the app data area where a Skype program

would go to make reference to database files. Rubisoff determined that a program called

CCleaner had been installed on Ehrhardt’s computer. CCleaner is a software program made

to clean computers and essentially wipes information like log files off the computer on which

it is installed.

¶28. Finally, there was no evidence that anyone other than Ehrhardt was living at 871

Willow Grand Circle, Brandon, Mississippi, when the child exploitation material was

downloaded. There was no evidence that any other person had access to the devices taken

from Ehrhardt’s residence. Ehrhardt’s defense relies solely on conjecture that someone other

than Ehrhardt, with the username Qa, illegally accessed Ehrhardt’s IP address to download

child exploitation material that was found on five of Ehrhardt’s devices differing in operating

system types. Viewing the evidence in the light most favorable to the verdict, Ehrhardt’s

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argument is without merit.

B. Motion for a New Trial and Weight of the Evidence

¶29. “When discussing whether the verdict is against the overwhelming weight of the

evidence, the standard of review is abuse of discretion in failing to grant a new trial.” Smith

v. State, 911 So. 2d 541, 544 (¶11) (Miss. Ct. App. 2004). “In determining whether a jury

verdict is against the overwhelming weight of the evidence, this Court must accept as true

the evidence which supports the verdict and will reverse only when convinced that the circuit

court has abused its discretion in failing to grant a new trial.” Montana v. State, 822 So. 2d

954, 967 (¶61) (Miss. 2002). “Only in those cases where the verdict is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice will this Court disturb it on appeal.” Id. at 967-68 (¶61).

¶30. Considering the evidence previously discussed in this opinion, we find that the jury

verdict was not contrary to the overwhelming weight of the evidence. We further find that

to allow these verdicts to stand would not sanction an unconscionable injustice. Therefore,

Ehrhardt’s argument is without merit.

CONCLUSION

¶31. Based upon the above, we find the trial court did not err by denying the defense

motions to suppress the evidence seized during the search of Ehrhardt’s residence. Further,

we find no error by the trial court in denying Ehrhardt’s motion for a mistrial. Finally, we

find that the evidence presented at trial was sufficient to support Ehrhardt’s convictions, and

the verdict was not contrary to the overwhelming weight of the evidence. Therefore,

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Ehrhardt’s convictions and sentences are affirmed.

¶32. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND SMITH, JJ.,
CONCUR.

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