                                                                                                       01/31/2018
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                  November 7, 2017 Session

                   STATE OF TENNESSEE v. ROY LEE ELLIS

                   Appeal from the Circuit Court for Carroll County
                      No. 2016-CR-87 Donald E. Parish, Judge
                      ___________________________________

                             No. W2017-00699-CCA-R3-CD
                         ___________________________________


The Carroll County Grand Jury issued a five-count indictment in Case No. 2015-
CR-8, charging Roy Lee Ellis (“the Defendant”) with especially aggravated
kidnapping, aggravated rape, aggravated assault, possession of drug paraphernalia,
and theft of services. Following a jury trial, the Defendant was found guilty of
possession of drug paraphernalia but was acquitted of especially aggravated
kidnapping, aggravated rape, and aggravated assault of A.H.,1 an adult female.
The theft of services count was not presented to the jury. Based on video images
captured from one of the Defendant’s cellular phones during the police
investigation into Case No. 2015-CR-8, the State also obtained an indictment of
the Defendant for two counts of sexual exploitation of a minor in Case No. 2016-
CR-87. The Defendant filed a “Motion to Quash Indictment Because [o]f
Misjoinder and/or Double Jeopardy” (“the Motion”).2 Following a hearing on the
motion, the trial court found that the State violated the mandatory joinder
requirement of Tennessee Rule of Criminal Procedure 8(a) and dismissed the
indictment, and the State appealed. Because the two counts of sexual exploitation
of a minor were not “based on the same conduct” nor did they “arise from the
same criminal episode” as the offenses for which the Defendant was tried, we
reverse the trial court, reinstate the indictment in Case No. 2016-CR-87, and
remand for further proceedings.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                         Reversed and Remanded



       1
           In order to protect the alleged victim’s identity, we will refer to her by initials only.
       2
         Motions to quash were abolished with the adoption of the Tennessee Rules of Criminal
Procedure. See Tenn. R. Crim. P. 12(a). We will treat the motion filed by the Defendant as a
Rule 12(a) motion to dismiss the indictment.
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D.
KELLY THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Counsel; Matthew F. Stowe, District Attorney General, for the appellant, State of
Tennessee.

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellee, Roy Lee Ellis.


                                            OPINION


                 Facts and Procedural History of Case No. 2015-CR-8

       A.H. filed a complaint with the Bruceton Police Department (BPD) on
September 5, 2014, claiming that the Defendant kidnapped, assaulted, and raped
her at his home on September 2, 2014. A.H. told the authorities that, in an effort
to induce her into having sex, the Defendant showed her videos on his cellular
phone “of him having sex with girls.” She was worried that the Defendant had
filmed her during the September 2 incident.

       On September 5, 2014, BPD officers executed a search warrant at the
Defendant’s residence and seized as evidence one Samsung Android cellular
phone, one ZTE Android cellular phone, and one Samsung feature cellular phone.
On September 6, 2014, the Defendant was arrested. On September 16, 2014, a
second search warrant was issued to search the three cellular phones. On
September 30, 2014, the cellular phones were sent to the Tennessee Bureau of
Investigation (TBI) for analysis.

       On January 5, 2015, the Carroll County Grand Jury issued a five-count
indictment charging the Defendant with especially aggravated kidnapping,
aggravated rape, aggravated assault, possession of drug paraphernalia, and theft of
services in Case No. 2015-CR-8.

      On March 30, 2015, the TBI issued its report and delivered video images
and photographs captured from the cellular phones to the district attorney
general’s office.3
        3
          The video images and photographs captured from the Defendant’s cellular phones and
returned to the district attorney general are not part of the record on appeal, so it is not clear how
many video images and photographs were captured from the cellular phones. However, the
number appears quite large based on counsel for the Defendant’s statement during argument on
the motion: “[T]he TBI gave them these things that he now knows about whether it was two

                                                  2
       The jury trial in Case No. 2015-CR-8 began on January 19, 2016, and the
verdict was returned on January 21, 2016. The State sought to introduce two
photographs of sexual acts captured from the Defendant’s cellular phone. The
State asserted that one of the photographs showed forced oral sex, but the
Defendant claimed that the photograph showed consensual oral sex by his wife.
Following a 404(b) hearing, the trial court excluded introduction of the two
photographs.4 The Defendant testified that his sexual interaction with A.H. on
September 2, 2014, was consensual. The jury found the Defendant guilty of
possession of drug paraphernalia and not guilty of especially aggravated
kidnapping, aggravated rape, aggravated assault, and all lesser-included offenses.

                Facts and Procedural History of Case No. 2016-CR-87

       On September 7, 2016, the Carroll County Grand Jury indicted the
Defendant in Case No. 2016-CR-87 on two counts of “knowingly possess[ing]
material that includes a minor engaged in sexual activity, thereby committing the
offense of sexual exploitation of a minor, in violation of T.C.A. §39-17-
1003(a)(1).” The indictment avers that both offenses occurred on or before
September 2, 2014. The two images were included in the evidence captured from
the Defendant’s cellular phones, which was delivered to the district attorney
general’s office on March 30, 2015.

       In January of 2017, the Defendant filed a motion to dismiss the indictment
claiming:

        When a defendant has been acquitted, the Double Jeopardy Clause
        of the Fifth Amendment guarantees that the government will not be
        permitted to make repeated attempts to convict the defendant. So
        long as the acquittal involves a resolution, correct or not, of some or
        all of the factual elements of the offense charged, a final verdict of
        acquittal bars a subsequent indictment or prosecution for the same
        offense. Also, the Tennessee Constitution prohibits misjoinder and
        double jeopardy. See[] Tenn. Const. art. I, section 10; State v.
        Denton, 938 S. W.2d 373 (Tenn. 1996) and State v. Winningham,
        958 S.W.2d 740 (Tenn. 1997).


thousand (2000), five thousand (5000) other things.” Counsel then stated: “[W]e took a short
recess at trial. I looked at about a thousand (1000) videos that day, because they said [A.H.] was
in them, and, of course, [A.H.] was not in the videos.”
        4
           We glean from the record that neither of the photographs the State attempted to
introduce at trial in Case No. 2015-CR-8 was the evidence that led to the indictment of the
Defendant for sexual exploitation of a minor.

                                                3
      The State filed a response to the motion stating that the cellular phones
were delivered to the TBI on September 30, 2014, and that on March 30, 2015,
“the TBI issued a detailed report along with a disc that captured certain videos and
images that were located on the electronic media that was analyzed by the TBI.”

       The trial court conducted a hearing on the motion on February 17, 2017.
No testimony was presented. The parties stipulated that the district attorney
general’s office received the materials captured from the Defendant’s cellular
phones, which include the two images that led to the sexual exploitation of a
minor indictment, on March 30, 2015. The “discovery packet” provided by the
State to the Defendant in the sexual exploitation case was marked and filed as an
exhibit at the hearing. The packet included:

       (1) a “Receipt of Discovery” in Case No. 2016-CR-87 received by counsel
for the Defendant on December 6, 2016, stating that provided are “68 pages plus
[Defendant’s] trial testimony 2 – 95” and “1 CD[,] 2 Photographs that were
recovered from an examination of Defendant’s electronic devices by the TBI”;

       (2) the written statement of A.H. in Case No. 2016-CR-87;

       (3) the September 6, 2014 written statement of the Defendant;

       (4) the September 5, 2014 search warrant affidavit and search warrant to
search the Defendant’s residence;

       (5) the September 16, 2014 search warrant affidavit and search warrant to
search the three cellular phones recovered from the Defendant’s residence;

      (6) BPD’s request to the TBI seeking examination of the three cellular
phones obtained during the execution of the search warrant on the Defendant’s
home;

       (7) the September 23, 2014 letter from the district attorney general to the
TBI requesting an examination of “stored communications, records, files,
directories, call logs, photos, videos and text messages”;

       (8) the September 30, 2014 TBI form acknowledging receipt of the three
cellular phones;

       (9) the March 30, 2015 TBI report;




                                         4
       (10) the transcript of the Defendant’s January 21, 2016 jury trial
testimony;5

       (11) the March 10, 2016 letter from the district attorney general to the
Interstate Crimes Against Children Task Force with photographs enclosed stating
that “[t]here are thousands of additional pornographic images that may involve
children available on a CD” and seeking “your opinion as to whether you deem
these photographs to be child pornography, and to determine, if possible, where
they may have originated”; and

       (12) photographs of the Defendant’s cellular phones, photographs of the
interior of the Defendant’s home, and photographs of numerous compact discs.

        At the conclusion of the hearing, the trial court concluded:

        [T]hat there is a misjoinder present, and that this situation is
        governed by Rule 8 of the Rules of Criminal Procedure, and the
        Court is particularly guided by the Advisory [C]ommission
        [C]omments, which direct the Court’s attention to the concept of
        holding back as I was discussing with the Attorney General.

                The Court’s understanding is the same as that of the Advisory
        Commission, which suggests that the purpose of the joinder rule, as
        it relates to this concept, is the beginning, or the commencement, of
        an action, and the [S]tate had not sufficient information, of course, to
        charge [the Defendant] on the night he was arrested for the sex
        charge, the original sex charge, with possession of these
        photographs, but they did, at least by, and this is the stipulated date
        that we’re working from, March 30th, 2015, the original arrest
        occurring on, or about, September 14, 2014.

               It is very significant in the Court’s view that the Grand Jury
        in Carroll County met again in May, in September, and in January,
        on three (3) occasions, before the case went to trial after the [S]tate
        had this information in it[]s presence, and there was no effort to re-
        indict [the Defendant], either in a super[s]eding indictment, or just
        simply go get another indictment for this new charge. So I think that
        this is the classic situation where the rule is intended to bar this
        prosecution.


        5
          The State’s motion to file the entire trial transcript was granted, and the trial transcript
was later filed as part of the appellate record.

                                                   5
              The key is here that the information leading to the second
        prosecution was available to, and either was known, or should have
        been known, by the prosecuting authorities well before this matter
        when to trial, and it just creates the situation where it appears that
        though there was a holding back, so that being the case, the
        “[M]otion to Quash” is granted.

       On March 20, 2017, the trial court filed its written order dismissing the
case. The State timely appealed, claiming that the trial court erred in dismissing
the indictment because the offenses in Case No. 2016-CR-87 were not based on
the same conduct and did not arise from the same criminal episode as the offenses
in Case No. 2015-CR-8.

                                            Analysis

                                      Standard of Review

        The findings of fact made by a trial court at a hearing on mandatory joinder
of offenses “are binding upon this court unless the evidence contained in the
record preponderates against them.” State v. Baird, 88 S.W.3d 617, 620 (Tenn.
Crim. App. 2001) (citing State v. England, 19 S.W.3d 762, 766 (Tenn. 2000)).
“However, this court is not bound by the trial court’s conclusions of law.” Id.
(citing State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998)). The application of
the law to the facts is a question of law that this court reviews de novo. State v.
Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).

        In this case, there is no dispute concerning the following facts:6

        1. On September 2, 2014, events occurred that led to the indictment of the
           Defendant for aggravated rape, especially aggravated kidnapping, and
           aggravated assault of A.H.7




        6
           Although the parties stipulated that the district attorney general received the TBI report
on the Defendant’s cellular phones on March 30, 2015, the parties did not establish when the
State became aware that the photographs that were the basis for the charges in Case No. 2016-
CR-87 contained images of children. During argument on the motion to dismiss, the district
attorney general stated that he became aware of the two images that later led to the indictment of
the Defendant for sexual exploitation of a minor four days before the jury trial in Case No. 2015-
CR-8, but counsel for the Defendant objected to “those facts not being in the record” and no proof
was presented by the State or the Defendant on that issue.
         7
           We will exclude from this analysis the possession of drug paraphernalia offense because
that offense arose as a result of the execution of the search warrant on September 5, 2014.

                                                 6
      2. On September 5, 2014, three cellular phones were seized when the BPD
         executed a search warrant at the Defendant’s residence.

      3. On January 5, 2015, the Carroll County Grand Jury issued a five-count
         indictment charging the Defendant with especially aggravated
         kidnapping, aggravated rape, aggravated assault, possession of drug
         paraphernalia, and theft of services.

      4. On March 30, 2015, the TBI returned to the district attorney general’s
         office its report and compact discs containing video images and
         photographs captured from the Defendant’s cellular phones.

      5. On January 21, 2016, the jury found the Defendant not guilty of
         especially aggravated kidnapping, aggravated rape, and aggravated
         assault.

      6. On September 7, 2016, the Defendant was indicted for two counts of
         sexual exploitation of a minor.

      7. The Carroll County Grand Jury met on three occasions between the time
         the district attorney general received the evidence that led to the
         indictment of the Defendant for sexual exploitation of a minor and the
         Defendant’s jury trial in Case No. 2015-CR-8.

                              Mandatory Joinder

       Tennessee Rule of Criminal Procedure 8(a), which governs mandatory
joinder of offenses, provides:

             (1) Criteria for Mandatory Joinder. Two or more offenses
      shall be joined in the same indictment, presentment, or information,
      with each offense stated in a separate count, or the offenses
      consolidated pursuant to Rule 13, if the offenses are:

                  (A) based on the same conduct or arise from the
            same criminal episode;

                   (B) within the jurisdiction of a single court; and

                    (C) known to the appropriate prosecuting
            official at the time of the return of the indictment(s),
            presentment(s), or information(s).


                                        7
              (2) Failure to Join Such Offenses. A defendant shall not be
       subject to separate trials for multiple offenses falling within Rule
       8(a)(1) unless they are severed pursuant to Rule 14.

Tenn. R. Crim. P. 8(a).

      “One of the purposes of the mandatory joinder requirements in Tenn. R.
Crim. P. 8(a) is to stop the practice by some prosecuting attorneys of ‘saving back’
charges because this practice necessitates multiple trials and adversely affects
discovery, plea bargaining, and other pre-trial procedures.” State v. Johnson, 342
S.W.3d 468, 473 (Tenn. 2011) (citing Tenn. R. Crim. P. 8, Advisory Comm’n
Cmts). This court has stated that “[t]he policy behind Rule 8(a) is to avoid
piecemeal litigation[.]” Baird, 88 S.W.3d at 621. All three of the criteria listed in
Rule 8(a)(1) must exist before multiple offenses are required to be joined.

                          Rule 8(a)(1)(A) - Same Conduct

        The phrase “same conduct [] relates to a single action which may be
divisible into distinct offenses.” David Louis Raybin, Tennessee Practice:
Criminal Practice and Procedure, Vol. 9 § 17.16, p. 595 (rev. ed. 2008); see
Baird, 88 S.W.3d at 620, (first indictment alleging aggravated gambling
promotion from August 1998 through December 1998, and the second indictment
alleging aggravated gambling promotion from January 1999 through June 1999
did not arise from the same conduct); State v. Dunning, 762 S.W.2d 142, 144
(Tenn. Crim. App. 1988) (“separate acts of selling cocaine to different officers
from two distinct law enforcement investigations on different days [wa]s not a
single action but a series of independently motivated occurrences”). Some
examples of offenses considered to be the “same conduct” are: “where a defendant
fires a gun and the single bullet kills two people, the defendant is legally guilty of
two murders which were precipitated by a ‘single or the same conduct, . . . a single
act of intercourse resulting in convictions for rape and incest, and murder with a
weapon and carrying a weapon.” David Louis Raybin, Tennessee Practice:
Criminal Practice and Procedure, § 17:16, at 595.

       To determine whether the offenses in Case No. 2016-CR-187 and the
offenses in Case No. 2015-CR-8 were based on the same conduct, we must first
look at the elements of the offenses. Tennessee Code Annotated section 39-13-
305, which codifies the offense of especially aggravated kidnapping, provides in
pertinent part:

              a) Especially aggravated kidnapping is false imprisonment, as
       defined in § 39-13-302:


                                          8
                   (1) Accomplished with a deadly weapon or by display
             of any article used or fashioned to lead the victim to
             reasonably believe it to be a deadly weapon;

                    ....

                    (4) Where the victim suffers serious bodily injury.

Tenn. Code Ann. § 39-13-305(a). “A person commits the offense of false
imprisonment who knowingly removes or confines another unlawfully so as to
interfere substantially with the other’s liberty.” Tenn. Code Ann. § 39-13-302(a).

       Tennessee Code Annotated section 39-13-502, which codifies the offense
of aggravated rape, provides in pertinent part:

              (a) Aggravated rape is unlawful sexual penetration of a victim
      by the defendant or the defendant by a victim accompanied by any
      of the following circumstances:

                     (1) Force or coercion is used to accomplish the act and
             the defendant is armed with a weapon or any article used or
             fashioned in a manner to lead the victim reasonably to believe
             it to be a weapon;

                    (2) The defendant causes bodily injury to the victim[.]

Tenn. Code Ann. § 39-13-502.

       “A person commits aggravated assault who[] [i]ntentionally or knowingly
commits an assault as defined in § 39-13-101, and the assault[] . . . [i]nvolved the
use or display of a deadly weapon[.]” Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii).
A person commits assault who:

             (1) Intentionally, knowingly or recklessly causes bodily
      injury to another;

             (2) Intentionally or knowingly causes another to reasonably
      fear imminent bodily injury; or

            (3) Intentionally or knowingly causes physical contact with
      another and a reasonable person would regard the contact as
      extremely offensive or provocative.


                                         9
Tenn. Code Ann. 39-13-101(a).

        Tennessee Code Annotated section 39-17-1003, which codifies the offense
of sexual exploitation of a minor, provides in pertinent part that “[i]t is unlawful
for any person to knowingly possess material that includes a minor engaged in[] . .
. [s]exual activity[.]” Tenn. Code Ann. § 39-17-1003(a)(1).

       Determining the actus reus, or the physical aspect of the crime, necessary to
convict a defendant of each of the offenses for which the Defendant was indicted
is helpful in making a comparison of the conduct involved in the offenses.
Obviously, other elements of the offenses would have to be proven to convict the
Defendant of any of the offenses for which he was indicted. The act necessary to
convict a defendant of sexual exploitation of a minor is possessing. See Tenn.
Code Ann. § 39-17-1003(a). Possessing is distinct and differs from the act
necessary to convict a defendant of kidnapping—removing or confining, See
Tenn. Code Ann. § 39-13-302(a); rape—sexually penetrating, See Tenn. Code Ann.
§ 39-13-502, 503; and assault—causing either bodily injury or causing another to
reasonably fear imminent bodily injury, See Tenn. Code Ann. § 39-13-101(a)(1).
The offenses in Case No. 2015-CR-8 and the offenses in Case No. 2016-CR-87
did not arise from a single act divisible into distinct offenses. See Dunning, 762
S.W.2d 142, 143-44 (Tenn. Crim. App. 1988)). The offenses were not “based on
the same conduct” under Tennessee Rule of Criminal Procedure 8(a).

                     Rule 8(a)(1)(A) - Same Criminal Episode

        In State v. Johnson, Justice William C. Koch, Jr., traced the development of
the concept of the “same criminal episode” in Tennessee to Duchac v. State, 505
S.W.2d 237, 240 (Tenn. 1973). State v. Johnson, 342 S.W.3d 468, 474 (Tenn.
2011). In Duchac, the defendant was convicted of third degree burglary and
carrying burglarious instruments. Duchac, 505 S.W.2d at 238. The Court of
Criminal Appeals determined “that the third degree burglary conviction barred the
conviction for carrying burglarious instruments because the two convictions arose
out of the same transaction and because the same proof made out both offenses.”
Id. at 239. In reversing this court, the supreme court determined that “the ‘same
transaction’ test is not the law, rather the proper test is directed to the identity of
the offense and has been called the ‘same evidence’ test.” Id. (citations omitted).
The Duchac court concluded that “the mere fact that both offenses grew out of a
single criminal episode does not make them a single offense in this particular
case” because “none of the evidence required to prove carrying burglarious
instruments is necessary to prove commission of third degree burglary.” Id. at
240.



                                          10
      The Johnson court, noting that prior opinions had not defined “single
criminal episode,” adopted the definition of “single criminal episode” approved in
1978 by the American Bar Association Standards for Criminal Justice:

               “Single criminal episode” offenses normally are generated by
       separate physical actions. The actions may be committed by
       separate defendants. In other respects, however, they are similar to
       same conduct offenses: they occur simultaneously or in close
       sequence, and they occur in the same place or in closely situated
       places.     A critical characteristic of single episode offenses,
       particularly in cases involving otherwise unrelated offenses or
       offenders, is the fact that proof of one offense necessarily involves
       proof of the others.

Johnson, 342 S.W.3d at 474-75 (quoting 2 ABA Standards for Criminal Justice §
13–1.2 cmt., at 13.10) (emphasis added) (footnotes omitted).

       In adopting the definition of “single criminal episode” found in the ABA
Standards for Criminal Justice, the supreme court noted that the ABA definition
“is consistent with our understanding of Tenn. R. Crim. P. 8(a)(1)(A) . . . .” Id. at
475. Continuing, the Johnson court stated:

              Our review of the decisions handed down by Tennessee’s
       courts since Tenn. R. Crim. P. 8 first became effective in 1978
       convinces us that the courts have appropriately recognized that for
       Tenn. R. Crim. P. 8(a)(1)(A) to apply, the acts to be included in the
       same criminal episode must occur simultaneously or in close
       sequence and must occur in the same place or in closely situated
       places. A break in the action may be sufficient to interrupt the
       temporal proximity required for a single criminal episode to exist.
       See 9 Tennessee Criminal Practice and Procedure § 17:17, at 601.

              The judicial decisions, however, do not reflect adequate
       emphasis on the requirement that in order for a single criminal
       episode to exist, the “proof of one offense necessarily involves proof
       of the others.” 2 ABA Standards for Criminal Justice § 13–1.3 cmt.,
       at 13.10. This means that the proof of one offense must be
       “inextricably connected” with the proof of the other, see State v.
       Shepherd, 902 S.W.2d 895, 904 (Tenn. 1995), or that the proof of
       one offense forms a “substantial portion of the proof” of the other
       offense. See United States v. Montes–Cardenas, 746 F.2d 771, 776
       (11th Cir. 1984). While the offenses need not be based solely on the
       same facts, requiring a substantial interrelationship between the

                                         11
       evidence required to prove each of several offenses “properly
       focuses the trial court’s inquiry on the degree to which the defendant
       is harassed and judicial resources wasted by successive
       prosecutions.” People v. Rogers, 742 P.2d 912, 919 (Colo. 1987)
       (en banc).

Id. (emphasis added).

       The supreme court in Johnson created in effect a two-part analysis for
determining if offenses arise from the same criminal episode—the first involving
the time and place the offenses occurred and the second involving the similarity in
the proof that would be required to prove the offenses. Johnson, 342 S.W.3d at
474-75.

(1)    Same criminal episode must occur simultaneously or in close sequence
       and must occur in the same place or in closely situated places

       As charged in the indictment, the offense of sexual exploitation of a minor
occurred, if it occurred at all, at the time the Defendant knowingly possessed the
material that included a minor engaged in sexual activity. A.H. claimed that the
Defendant showed her sexually explicit images of “girls” on his cellular phone
before or during the September 2, 2014. There is no proof in the record that the
images shown to A.H. were the same images that led to the indictment of the
Defendant for sexual exploitation of a minor. We know from the proof that the
cellular phones were seized by BPD officers on September 5, 2014, and we can
therefore determine that the two images were loaded onto the Defendant’s cellular
phone on or before September 5, 2014.

        “Unless a defect in an indictment appears on the face of the indictment, the
initial burden of proof is on the defendant to establish the grounds of the motion to
dismiss.” State v. Bonds, 502 S.W.3d 118, 149 (Tenn. Crim. App. 2016) (quoting
W. Mark Ward, Tennessee Criminal Trial Practice § 14:5 (2014-2015 ed.)). The
Defendant presented no evidence, other than the exhibit establishing the date the
cellular phones were seized by BPD officers, to prove the date on which the
images were loaded onto his cellular phone and thereby came into the possession
of the Defendant. Therefore, the Defendant failed to show that the offenses in
Case No. 2015-CR-8 occurred “in close sequence” with the offenses in Case No.
2016-CR-87 for the purposes mandatory joinder under Rule 8(a). Johnson, 342
S.W.3d at 475. Likewise, the Defendant failed to present any evidence to prove
that the two offenses occurred “in the same place or in closely situated places.”
Id.



                                         12
(2)    Proof of one offense necessarily involves proof of the others

        As previously discussed, to convict the Defendant of sexual exploitation of
a minor as charged in the indictment, the State would have to prove that the
Defendant knowingly possessed material that included a minor engaged in sexual
activity.

       The offense of sexual exploitation of a minor has only one element in
common with the offenses of especially aggravated kidnapping, aggravated rape,
or aggravated assault—a “knowing” mens rea. The proof that would be required
to convict the Defendant of sexual exploitation of a minor is not “inextricably
connected [to],” Shepherd, 902 S.W.2d at 904, nor does it form a “substantial
portion of [,]” Montes–Cardenas, 746 F.2d at 776, the proof that would have been
required to convict the Defendant of aggravated rape, especially aggravated
kidnapping, or aggravated assault. There is no “overlap” in the evidence
necessary to prove the offenses in Case No. 2015-CR-8 and the evidence
necessary to prove the offenses in Case No. 2016-CR-87. See State v. Brandon
Churchman, No. W2013-00175-CCA-R3-CD, 2014 WL 12651043, at *8 (Tenn.
Crim. App. Apr. 28, 2014), perm. app. denied (Tenn. Sept. 18, 2014).

        The Defendant failed to establish that the offense of sexual exploitation of a
minor arose from the same criminal episode as the offenses of especially
aggravated kidnapping, aggravated rape, or aggravated assault. See State v.
Stephen W. Jaco, No. M2016-00634-CCA-R3-CD, 2017 WL 2645659, at *5
(Tenn. Crim. App. June 20, 2017) (affirming the trial court’s denial of the
defendant’s motion to dismiss based on mandatory joinder where the defendant
failed to provide proof that the charges arose from the same criminal episode), no
perm. app. filed.

                                    Conclusion

       Based on the foregoing analysis, the trial court’s judgment is reversed, the
indictment is reinstated, and the case is remanded to the trial court for further
proceedings consistent with this opinion.


                                     ____________________________________
                                     ROBERT L. HOLLOWAY, JR., JUDGE




                                         13
