                                                                                                         08/22/2018
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                               Assigned on Briefs April 18, 2018

             STATE OF TENNESSEE v. STEPHEN DOUGLAS SMITH

                   Appeal from the Circuit Court for Marshall County
                No. 2013-CR-135, 2013-CR-136 Franklin L. Russell, Judge
                        ___________________________________

                               No. M2017-00216-CCA-R3-CD
                           ___________________________________

The Defendant-Appellant, Stephen Douglas Smith, was convicted by a Marshall County
jury of one count of rape of a child, four counts of aggravated statutory rape, and forty
counts of especially aggravated sexual exploitation of a minor, for which he received an
effective sentence of forty-one years. T.C.A. §§ 39-13-522, -506; 39-17-1005. On
appeal, the Defendant argues that: (1) the evidence was insufficient to support his
convictions; (2) the trial court improperly admitted a thumb drive and the photographs
from it into evidence; and (3) the trial court erred in denying his motion to cross examine
the victim regarding her sexual history.1 Upon review, we affirm the judgments of the
trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Daniel Lyn Graves II, Murfreesboro, Tennessee, for the appellant, Stephen Douglas
Smith.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Robert J. Carter, District Attorney General; and Eddie Barnard and Hollynn Eubanks,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION



        1
          These are not the issues proscribed in the Defendant’s issues presented section of his brief. For
reasons which we will explain below, these are the issues we discern from the corresponding argument
section of his brief.
        From May 2008 to November 2011, the Defendant forced the minor victim, E.I.2,
to engage in various sexual acts, including sexual intercourse, digital penetration, and
oral sex, and took over forty sexually explicit photographs of the victim during these
activities. After finding these explicit photographs hidden on a computer gifted by the
Defendant, Amy and Samuel Hood copied the photographs onto a SanDisk thumb drive
and provided the thumb drive and their computer hard drive to the police. The police
then executed a search warrant on the Defendant’s home and seized the Defendant’s
computer, the Defendant’s red Ultra thumb drive, and other relevant evidence. A
comparison of the photographs on the Defendant’s thumb drive revealed forty sexually
explicit photographs of the victim, taken with the Defendant’s Fujifilm camera. Based on
this evidence, the Defendant was indicted for the aforementioned offenses. The
following evidence was adduced at trial.

       Trial. The victim testified that she and her family lived with the Defendant and
his wife, Heather Smith,3 in Cornersville, Tennessee, where the instant crimes took place,
from approximately January to November 2008. The victim called the Defendant and his
wife “aunt and uncle” and explained that “[t]hey were really close family friends.” The
victim explained that the Defendant and his wife maintained separate bedrooms and that
the Defendant’s job included working on computers from home. The victim and her
family moved out in late 2008 but maintained contact with the Defendant and his wife
and stayed at the Defendant’s house while the victim’s mother was at work, on weekends
and holidays. She later met Amy Hood who moved into the Defendant’s house after the
victim and her family moved out. Once Amy Hood moved in, the victim explained the
Defendant moved his bedroom/office into the garage and the Defendant flipped the
deadbolt lock on the door so that a key was required to enter. The Defendant later placed
a keypad lock on his bedroom door. The victim recalled the Defendant and Amy Hood
fighting before Hood moved out of the Defendant’s house.

        Before the sexual abuse began, the victim recalled sleeping in the Defendant’s bed
while she was sick and that the Defendant “said that during the night I had grabbed [his
penis], I grabbed him and had hurt him and that I had my hand in my pants like I knew
what I was doing.” She confirmed that she did not remember that happening. The victim
testified that she was twelve years old when the Defendant’s sexual abuse began in the
summer of 2008. The first sexual encounter occurred in May or June 2008 at the
Defendant’s house in his locked bedroom when the Defendant told the victim to remove

        2
            It is the policy of this court to refer to minor victims and their family members by their initials.
        3
            We acknowledge that we do not use titles when referring to every witness. We intend no
disrespect in doing so. Judge John Everett Williams believes that referring to witnesses without proper
titles is disrespectful even though none is intended. He would prefer that every adult witness be referred
to as Mr. and Mrs. or by his or her proper title.
                                                       -2-
her clothes and get into his bed. She said the Defendant “was like rubbing his penis on
my butt and then he said [his penis] accidentally went in” her vagina, “did a few thrusts
and then didn’t finish.” She confirmed that the Defendant also digitally penetrated her
vagina. The victim then identified three sets of photographs each taken on different dates
at her mother’s house and in the Defendant’s bedroom. She explained that the Defendant
photographed her naked while he forced her to engage in sexual intercourse, digital
penetration, and oral sex. She testified that the Defendant took these photographs “to
have something on me” and to keep her from telling the police. She identified the male
in the photographs as the Defendant, specifically identifying his naked body parts,
wedding ring, gold watch, and blue plaid pajama pants. She identified the photographs
taken in her mother’s house by the wallpaper and orange shag carpet in her mother’s
bedroom and the photographs taken in the Defendant’s house by the bedspread and mini-
fridge in the Defendant’s bedroom. The final sexual encounter occurred on the victim’s
sixteenth birthday weekend in November 2012 when the Defendant said that his
“birthday present” to her was to have sex one last time and then “he would stop.” The
Defendant forced the victim to perform oral sex on him while he digitally penetrated her
and then forced her to engage in sexual intercourse. The victim confirmed that the
Defendant did not use a condom during these encounters.

       The victim identified the Defendant’s Fujifilm digital camera that he used to
photograph her and then gifted to her for Christmas in 2011. When the camera belonged
to the Defendant, the victim said he kept it in his desk drawer and no one was allowed to
use it without the Defendant’s permission and that it could not be taken away from the
house. Asked whether she ever downloaded photographs from her Fujifilm camera to the
Defendant’s computer, the victim stated, “I’m sure there was a time when I did.” The
victim gave the Fujifilm camera and her jewelry and clothing visible in the “sex pictures”
to the Tennessee Bureau of Investigations (“TBI”) once the instant investigation began.
On cross-examination, the victim testified that the sexual encounters occurred when her
brothers were asleep and her mother was at work. She explained that she and her
brothers were not allowed in the Defendant’s bedroom or on his computer without his
permission and presence. She confirmed that the Defendant “had a brain tumor, which
led to other problems like [he] wasn’t very strong” and that he was in a wheelchair for
some time after she and her family moved out of the Defendant’s house. She said she
went on a week-long work trip with the Defendant and his friend, Bruce Short, and
confirmed that no sexual encounters happened on that trip. Asked why she did not tell
anyone about the sexual encounters before she talked with the police, the victim stated,
“[n]o one tells you to tell people if it’s a family member that touches you[,]” and “I
wanted to tell, but there, I mean, by the time the secret had gotten so big and I realized
what was happening was not normal, I didn’t say anything, because by then the pictures
had been taken and there wasn’t much else I could do.”

                                          -3-
        Amy Hood testified that she lived with the Defendant and his wife from April
2009 to February 2012 and met the victim and her family after Hood moved in. She said
no one in the house was allowed in the Defendant’s bedroom or to use his computers or
cameras without his permission or presence. She confirmed that the Defendant converted
the garage to his bedroom after September 2009, “flipped” the deadbolt lock so that “he
could lock it from the garage side[,]” and later installed a keypad lock on his bedroom
door. She testified the Defendant gifted her his self-built desktop computer (“Hood
computer”) in 2011, which she then password protected. The Defendant told her “he had
erased the entire hard drive, reinstalled the operating system, so that it was essential[ly] a
new computer without any of his stuff on there.” She said “[t]he [Fujifilm] camera never
left [the Defendant]’s desk” and that “it never left his room” while it was being used. She
recalled the Defendant gifting the Fujifilm camera to the victim for Christmas. She
explained that the Defendant spent a lot of time with the victim and gave her lots of gifts;
she said she “found it very odd.” She said the victim and her brothers visited the
Defendant’s house weekly while the victim’s mother was at work. She recalled several
times in “the winter of 2009” and throughout 2011 that she could hear the victim alone
with the Defendant in his bedroom “anywhere from 11:00 at night to 3:00 in the
morning.” She said she had “[a] nagging suspicion that something was going on. You
know, something wasn’t right[.]”

        Amy Hood also lived with Sharon and Bruce Short from February 2012 “off and
on until October,” and in April 2013, she said the Defendant kicked her and her children
out of his house and called the police on them. She explained there was some animosity
between the Defendant and her husband, Samuel Hood, because “[Samuel] Hood felt that
[the Defendant] was controlling [Amy Hood’s] life” and that the two men had “quite a
few verbal altercations.” During the move, she left the Hood computer at the
Defendant’s house and returned two weeks later to retrieve it. Shortly thereafter, Samuel
Hood began installing video games on the computer when he “said that [the computer]
was running really slow” and Amy Hood responded that she “didn’t understand why,
because [she] didn’t have a lot of stuff on the computer.” Samuel Hood began deleting
old files and discovered that someone performed “a dirty install . . . that somebody didn’t
erase the hard drive fully before reinstalling the operating system.” The next day, Amy
Hood resumed investigating the computer when she found explicit photographs of the
naked victim. She and Samuel Hood then copied the explicit photographs onto a
SanDisk thumb drive and deleted them from the computer. A few days later, they
delivered the computer’s hard drive (“Hood hard drive”) and the SanDisk thumb drive to
the Cornersville police. The Hoods then spoke with TBI Special Agent Andrew Kon and
signed consent forms to search the contents of the Hood hard drive and SanDisk thumb
drive. Amy Hood confirmed that she did not change the dates of the transferred files and
identified her signature on the police consent form. At trial, Amy Hood identified the
victim in the photographs by her face and the bracelets she wore; identified the Defendant
                                            -4-
by his gold wedding ring, watch, and pinky finger; and identified the location of some of
the photographs as the Defendant’s bedroom, noting the garage door, the Defendant’s
mini-fridge, and the blanket on his bed. She confirmed that the explicit photographs were
taken before she received the Hood computer from the Defendant and noted that the
photographs were taken by the Defendant’s Fujifilm camera.

        Samuel Hood testified consistently with Amy Hood’s recollection of events. In
addition, he stated that after Amy Hood brought the Hood computer home, he noticed it
“was running really slow” and decided “to format it” or clear space on it. He determined
that someone performed “a dirty install, which basically means that [the Defendant] had
installed Windows on top of Windows without formatting beforehand.” He identified the
victim in the photographs by her face, identified the Defendant “by his thumb nail[,]” and
recognized the Defendant’s mini-fridge in the background. He said Amy Hood was
“freaked out” and “[s]hocked, [in] disbelief, emotional” after seeing the explicit
photographs. He confirmed that they transferred the photographs to a SanDisk thumb
drive without altering the photographs. On cross-examination, Samuel Hood confirmed
that he and the Defendant initially had a friendly relationship, but over time they began to
have arguments because Samuel Hood “felt [the Defendant] was trying to sabotage the
relationship” between Amy and Samuel Hood and that the Defendant tried to “control”
Amy Hood.

       Officer David McVey testified that Amy and Samuel Hood came to the
Cornersville Police Department on May 22, 2013, and “report[ed] that they had received
a computer [] that had some pornography photos on it of a young lady.” The Hoods
“explained what was on the [Hood hard drive and SanDisk thumb drive] and g[a]ve the
names of the individuals where they obtained the computer.” The Hoods also explained
to Officer McVey how they obtained the photographs and gave the date and time stamps
on the photographs. At trial, Officer McVey identified the SanDisk thumb drive and
Hood hard drive and stated that he locked the evidence in the “evidence lock box” at the
police station. He then delivered the SanDisk thumb drive and Hood hard drive to TBI
Special Agent Andrew Kon. He confirmed that Amy and Samuel Hood signed a consent
form allowing them to search the evidence.

      TBI Special Agent Andrew Kon testified that he was the lead investigator in this
case and identified the SanDisk thumb drive and hard drive given to him by Officer
McVey. Agent Kon interviewed Amy and Samuel Hood who explained what they found
and how they transferred the photographs from the Hood hard drive to the SanDisk
thumb drive. He confirmed they signed a consent form to search the evidence. Agent
Kon then packaged and labeled the SanDisk thumb drive and Hood hard drive as
evidence and delivered them to the TBI’s Technical Services Unit where the evidence
was forensically examined. The unit reviewed the items and provided a preliminary
                                           -5-
report of the evidence. Agent Kon confirmed that the information given to him from
Amy and Samuel Hood was consistent with the TBI’s preliminary findings. Agent Kon
then obtained and executed a search warrant for the Defendant’s house and collected
relevant evidence, including the Defendant’s gold watch, his red Ultra thumb drive, and
his personal computer (“Defendant’s computer”). He later obtained the Fujifilm camera
from the victim and delivered it to the TBI Technical Services Unit for examination.

        TBI Special Agent Nicholas Christian, an expert in digital forensics, testified that
he examined the SanDisk thumb drive, the red Ultra thumb drive, the Hood hard drive,
the hard drive from the Defendant’s computer (“Defendant’s hard drive”), and the
Fujifilm camera. Through his forensic analysis, he found forty sexually explicit
photographs of the victim on the Defendant’s red Ultra thumb drive and the Hoods’
SanDisk thumb drive and determined that the photographs were taken by the Defendant’s
Fujifilm camera. He determined that seventeen of the forty photographs were taken on
January 14, 2011; twelve photographs were taken on February 4, 2011; and eleven
photographs were taken on February 8, 2011. He described hash values as unique
identifiers for any image file. He compared the hash values of the photographs on both
thumb drives and concluded that thirty-seven of the forty photographs matched each
other exactly. Of the remaining three photographs, Agent Christian visually examined
them and determined that two were the same but rotated on March 5, 2011, and one was
the same but had altered lighting.

        Agent Christian explained that the forty photographs on the Defendant’s red Ultra
thumb drive were contained in a password protected encrypted file that could only be
decrypted when connected to the Defendant’s computer and hard drive. He determined
that the Defendant’s red Ultra thumb drive was last connected to the Hood computer and
hard drive on September 13, 2011. On November 9, 2012, the Defendant’s red Ultra
thumb drive was last connected to the Defendant’s personal computer and the forty
explicit photographs were downloaded and encrypted from the Defendant’s computer
onto his red Ultra thumb drive. Later that same day, a new operating system was
installed onto the Hood computer before the Defendant gave it to Amy Hood. On May
19, 2013, the Hoods’ SanDisk thumb drive was last connected to the Hood computer
when they downloaded the forty explicit images before delivering it to the police on May
22, 2013.

        During his forensic examination, Agent Christian did not find any relevant
photographs on the Hood hard drive and explained that “if you delete an image, most of
the time, computer forensics can recover that image. But due to the volume of data that
was being moved around on the hard drive, it appears to be, that appears to be
overwritten.” He explained that “if [the explicit photographs] were not there, they were
either there and I missed them, overlook[ed] them; they were there and my forensic tool
                                           -6-
could not recover them; or they were unrecoverable, because they were overwritten.”
Agent Christian agreed that the dates in the camera could have been changed, but stated
that there was no “evidence to suggest that” the dates on the computers, hard drives, or
photographs were altered. He opined that, because Samuel Hood “was deleting and
removing a lot of data” while transferring the photographs from the Hood hard drive to
the SanDisk thumb drive, that the files were likely overwritten and that is why his
forensic tools could not find the photographs during his own investigation.

       Heather Smith, the Defendant’s wife, testified that she and the Defendant
maintained separate bedrooms and that the Defendant had two strokes in 2009 and 2010
causing him to have “problems getting an erection[.]” She said the Defendant’s bedroom
had a “flimsy lock” on it and that the victim and her family were to ask for permission
before entering the Defendant’s bedroom. She said the victim and her family lived in her
and the Defendant’s house from February to November 2008 and that the Defendant had
a good relationship with the victim and her two brothers, stating “[t]hey were like
adopted niece and nephews[.]” After the victim and her family moved out, she confirmed
that the victim and her brothers visited the Defendant’s house “off and on” until August
2009 and again during January and February 2011. She stated that she and the Defendant
did not go to the victim’s house during that time because the Defendant was in a
wheelchair and using crutches at the time and, to her knowledge, the Defendant never
went to the victim’s house by himself. She confirmed that she was not concerned about
the victim being alone in the house with the Defendant or traveling alone with him.

        Smith said Amy Hood lived with them from April 2009 to April 2013. She said
she and the Defendant had problems with Amy Hood while she lived with them and that
Samuel Hood and the Defendant had a “[v]ery antagonistic” relationship due to
“personality differences.” She confirmed that the Defendant gave Amy Hood his
computer and the victim his Fujifilm camera in 2011. She specified that, before the
camera was given to the victim, “[a]nybody could use the cameras that were in the house
[but] they weren’t allowed to take them off the premises.”

        At trial, Smith looked at the explicit photographs in evidence, agreed that the gold
watch in the photographs looked like the Defendant’s but explained that “[h]e only wore
it for probably about two weeks” because the battery stopped working shortly after he
started wearing it and that it “was a cheap $5 watch at Wal-Mart.” She looked at the gold
wedding band in the photographs and stated that “we’ve never had plain gold bands.”
She looked at the man’s hands in the photographs and stated that it “[d]oesn’t look like
[the Defendant’s] hand to me” because it “doesn’t have enough hair on it,” “the fingers []
are a little bit too straight for his hand,” and “[t]he fingers are too short and stubby.” She
looked at the man’s penis in the photographs and identified several “mole[s] or [] skin
tag[s]” on the penis but stated that it was not the Defendant’s penis because “the skin tags
                                            -7-
that he has and the moles are on the sides and underneath.” She also stated that it was not
the Defendant’s penis because “it’s too small” and “[s]ome of the markings that he has
are not in the picture.” She positively identified the victim in one photograph and
recognized the location as the victim’s mother’s bedroom. Smith also identified four
photographs that she took of the Defendant’s penis in anticipation of trial and confirmed
that she took the photographs after viewing the explicit photographs including the victim.
She agreed that the man’s penis in the explicit photographs was erect but the Defendant’s
penis in the photographs she took was flaccid.

        Sharon Short, a friend of the Defendant’s, testified that she and her son, Bruce
Short, visited the Defendant and his wife at least once a month and on holidays. She
testified that the Defendant “act[ed] appropriately” toward the victim and her brothers
and that she never saw the Defendant and the victim “alone together[.]” Short confirmed
that Amy Hood lived with her for approximately a year and did not recall observing any
arguments between the Defendant and Amy and Samuel Hood. She said the Defendant
had several health issues and that he was in an arm cast and used crutches at different
times. She recalled being at the February 2011 Super Bowl party at the Defendant’s
house that the victim also attended, but did not recall any fights.

       Bruce Short, a former friend of the Defendant’s, testified that he became friends
with the Defendant through work and visited his house often. He said he and the
Defendant once traveled to Ohio for work, that the victim joined them, and that they each
had their own bed. He confirmed going to the victim’s house with the Defendant several
times, but said he never saw the Defendant “act inappropriately towards” the victim or
her brothers. He said the Defendant had many health issues and recalled the Defendant
spending time in a wheelchair and in a boot or cast on his leg but could not recall when.
He recalled being at a Super Bowl party at the Defendant’s house that the victim also
attended and witnessed a fight between the Defendant and Amy Hood’s mother. He
stated that he observed the Defendant and Amy Hood arguing “[m]any times[,]” but did
not witness any arguments between the Defendant and Samuel Hood. He recalled the
Defendant gifting Amy Hood a computer, confirmed that she password protected the
computer, and stated that he did not have access to her administrator account. He
confirmed that the Defendant hung out with the victim alone “[a] fair bit[.]”

       Dr. James MacDonald, the Defendant’s physician, testified that the Defendant had
surgery on his foot in September 2010 and was placed in a cast. Dr. MacDonald
examined the Defendant again in November 2010 and April 2011, confirmed that the
Defendant continued to have foot pain, but made no note in his records of a cast or boot
on the Defendant’s foot. He confirmed that the Defendant’s wife is his employee.



                                           -8-
       Officer Michael Gaylon of the Marshall County Sheriff’s Office testified that he
performed “a welfare check on some individuals that lived at the [Defendant’s] house” in
“late 2007, early 2008.” He did not recall visiting the house on any other occasions or
serving any warrants on the Defendant.

       Keain Landtroop testified that he and the victim were friends and briefly dated.
He met the Defendant through the victim and visited the Defendant’s house on several
occasions. He said he never saw the Defendant “act inappropriately” toward the victim.
He was not sure he knew Samuel Hood, but stated that he observed Amy Hood and “her
boyfriend” argue with the Defendant because “[the boyfriend] thought that [the
Defendant] was trying to be sexual towards” Amy Hood. He did not recall the Defendant
being in a cast or boot but did recall him being in a wheelchair once.

       The victim’s mother testified that she and her three children lived at the
Defendant’s house from January 2008 to August or September 2008 and that the
Defendant and his wife watched the victim and her brothers while she was at work. She
said she and the Defendant had “a falling out” when she moved out of the Defendant’s
house but the children still visited “occasionally.” She confirmed that she was concerned
that the Defendant “would favor [the victim] a lot” and treat her differently than her
brothers.

       The victim’s brother testified that he lived with his family at the Defendant’s
house and that the Defendant and his wife would watch them while their mother was at
work. After moving out of the Defendant’s house, he confirmed that the children still
visited the Defendant’s house “[e]very school week.” He recalled the Defendant and the
victim being alone together and that the Defendant “would sometimes lock the door[.]”
He said “they were just talking about something or watching a video. Sometimes I would
hear laughing.” On one occasion, he said he went into the Defendant’s room while he
was alone with the victim and that the Defendant “completely chewed [him] out” because
“they were talking about something important” and “[i]t’s rude to walk into someone’s
office or space” without permission. He said everyone but the Defendant’s wife had to
ask permission to enter the Defendant’s bedroom. He confirmed the Defendant came to
their house several times but did not recall the Defendant being in a wheelchair, a boot, or
a cast. He confirmed overhearing the Defendant argue with Amy Hood but not Samuel
Hood.

        After deliberation, the jury found the Defendant guilty as charged as to all counts
in the indictment. On January 8, 2016, the trial court sentenced the Defendant to twenty-
five years for the rape of a child conviction; four years for each of the four aggravated
statutory rape convictions, to be served consecutively to the rape conviction; and twelve
years total for the forty especially aggravated sexual exploitation of a minor convictions,
                                           -9-
to be served concurrently with the effective forty-one year sentence. The Defendant filed
a motion for new trial on February 4, 2016, and an amended motion for new trial on
December 27, 2016, both of which were denied by the trial court. It is from these
judgments that the Defendant appeals.

                                         ANALYSIS

        We must first address the deficiencies in the Defendant’s brief because they
substantially hamper our review. The record shows that defense counsel zealously
represented the Defendant at trial, and we do not question the adequacy of his trial
representation. However, in his brief to this court, the Defendant presents four issues:
(1) “whether the weight of the evidence in this case is against the verdict as the State
failed to prove each element of every count beyond a reasonable doubt;” (2) “whether the
interests of justice require the granting of a new trial based on the incomplete and faulty
evidence produced at trial, specifically the admissibility of evidence obtained through
data devices;” (3) “whether the sufficiency of the evidence is below the required standard
required for conviction;” and (4) “whether the Defendant was prevented from having a
fair trial because evidence of the alleged victim’s prior sexual activity was withheld from
the jury.” As pointed out by the State, the Defendant then packs various sub-issues
within the argument sections of his brief. In the corresponding argument section for issue
(1), “whether the weight of the evidence in this case is against the verdict as the State
failed to prove each element of every count beyond a reasonable doubt,” the Defendant
randomly touches upon the denial of his motion to suppress (by improper chain of
custody and impeachment of the affidavit based on intentional misstatements of the
federal agent), the State’s alleged failure to file a bill of particulars or elect offenses, and
the State’s alleged improper closing argument. In the corresponding argument section for
issue (2),“whether the interests of justice require the granting of a new trial based on the
incomplete and faulty evidence produced at trial, specifically the admissibility of
evidence obtained through data devices,” the Defendant claims that the State withheld
exculpatory evidence by not providing data from the Hood computer, that was allegedly
erased by Samuel Hood, that the State had a duty to preserve such evidence; that the trial
court erred in restricting a medical doctor’s testimony regarding the Defendant’s foot
surgery during which he was limited to a wheelchair; that the trial court erred in allowing
the jury to continue deliberations “after dinner;” that the State engaged in improper
closing argument; that the State elicited an emotional outburst by Amy Summers during
trial regarding her deceased child which was prejudicial; and two paragraphs referencing
the alleged staleness of the evidence in the affidavit supporting the search warrant. The
brief does not provide citations to the record or supporting authority for the bulk of the
sub-issues presented. Because the Defendant’s brief fails to comply with Rule 27 of the
Tennessee Rules of Appellate Procedure, and because the Defendant’s sub-issues are
mostly indiscernible, the State argues they are waived.
                                             - 10 -
        Rule 27 of the Tennessee Rules of Appellate Procedure requires parties to include
a statement of the issues presented for review in their appellate brief. Tenn. R. App. P.
27(a)(4). “The issues presented for review constitute the backbone of an appeal.” See
State v. Williams, 914 S.W.2d 940, 947-49 (Tenn. Crim. App. 1995). Moreover, parties
should refrain from incorporating several separate and distinct errors into a single issue.
Id. (citing Leeson v. Chernau, 734 S.W.2d 634, 637 (Tenn. Ct. App.), perm. app. denied
(Tenn.1987)). When an advocate’s ability to clearly articulate the position of a client
requires that the argument be subdivided into two or more sub-issues, each issue must be
directly related and constitute parts of the main issue presented for review. Id. This is
important because,

       If an issue is not properly drafted, the attorney preparing the appellant’s
       brief cannot properly research or argue the merits of the issue. The attorney
       preparing the appellee’s brief will entertain doubt as to the precise issue
       that is to be addressed or will restate the correct issue supported by the
       record. The judges who must resolve the merits of the issue will not be
       able to determine the precise issue to be addressed. Thus, properly drafted
       issues will assist the writer of the appellant’s brief, the writer of the
       appellee’s brief, the panel of appellate judges who are assigned the
       responsibility of addressing the issues in an opinion, and the staff of each
       appellate judge.

Id. (internal footnote omitted). An issue may be deemed waived when it is argued in the
brief but is not designated as an issue in accordance with Rule 27(a)(4). See Mobley v.
State, 397 S.W.3d 70, 104 (Tenn. 2013) (citing Hodge v. Craig, 382 S.W.3d 325, 334
(Tenn 2012)).

       Here, the State properly pointed out the deficiencies in the Defendant’s brief, and
the difficulties in responding to it. Although the Defendant filed a reply brief, he did not
remedy the errors or clarify the issues. As such, we agree with the State, and conclude
that the sub-issues, as we have outlined above, are waived. Waiver notwithstanding, the
sub-issues outlined in the Defendant’s brief appear to mirror the issues raised in the
Defendant’s amended motion for new trial, which was rejected by the trial court in a
thorough and well-reasoned order. Following our review, we conclude that the record
does not preponderate against the findings of the trial court. Accordingly, to the extent
that the Defendant raises the same issues articulated in his amended motion for new trial,
he is not entitled to relief. We will now review the remaining issues as we discern them
from the Defendant’s brief.




                                           - 11 -
       I. Sufficiency of the Evidence.4 The Defendant does not appear to challenge his
convictions of rape of a child (25-year sentence) or aggravated statutory rape (4-year
sentences). In challenging the evidence supporting his convictions of especially
aggravated sexual exploitation of a minor, the Defendant contends that, other than the
testimony of Samuel Hood, there is no proof that the explicit photographs “were ever
stored, housed or viewed on any device under the exclusive control of [the] Defendant[.]”
The Defendant asserts that, once he erased his computer and gifted it to Amy Hood, she
had exclusive control and possession of the computer and any files derived therefrom
could not be his. Moreover, the Defendant asserts that Amy Hood, Samuel Hood, and the
victim conspired against him to falsify evidence and convict him of the instant crimes.
The State argues that the evidence is sufficient to show that the Defendant “knowingly
promoted a person under the age of 18 to participate in the production of material
depicting different acts of sexual activity[,]” that the victim’s testimony established the
Defendant’s identity in the photographs and was corroborated by other witnesses, and
that the Defendant was the person who took and stored the explicit photographs. Upon
review, we agree with the State.

       In resolving this issue, we apply the following well established standard of review.
The State, on appeal, is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the
evidence, the standard of review applied by this court is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial
court or jury shall be set aside if the evidence is insufficient to support the finding by the
trier of fact of guilt beyond a reasonable doubt.” Guilt may be found beyond a
reasonable doubt in a case where there is direct evidence, circumstantial evidence, or a
combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343
S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must evaluate the credibility of the
witnesses, determine the weight given to witnesses’ testimony, and reconcile all conflicts
in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). When reviewing
issues regarding the sufficiency of the evidence, this court shall not “reweigh or
reevaluate the evidence.” Henley v. State, 960 S.W.2d. 572, 578-79 (Tenn. 1997). This
court has often stated that “[a] guilty verdict by the jury, approved by the trial court,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of

       4
         We combine Defendant’s issues one and three and rely upon portions of the corresponding
argument sections in his brief.
                                             - 12 -
the prosecution’s theory.” Bland, 958 S.W.2d at 659 (citing State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973)). A guilty verdict also “removes the presumption of innocence
and replaces it with a presumption of guilt, and the defendant has the burden of
illustrating why the evidence is insufficient to support the jury’s verdict.” Id. (citing
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

        When the State offers proof of guilt based on circumstantial evidence, the jury
decides how much weight to give to circumstantial evidence, and “[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence, are questions primarily for the jury.” Marable v.
State, 313 S.W.2d 451, 457 (Tenn. 1958) (internal quotation and citation omitted). This
court may not substitute its inferences for those drawn by the trier of fact in cases
involving circumstantial evidence. State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010)
(citing Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956)). We note that the standard of
review “‘is the same whether the conviction is based upon direct or circumstantial
evidence.’” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (quoting State v. Sutton,
166 S.W.3d 686, 689 (Tenn. 2005)). Here, the Defendant was convicted of forty counts
of especially aggravated sexual exploitation of a minor. See T.C.A. §39-17-1005.
Especially aggravated sexual exploitation of a minor provides that “[i]t is unlawful for a
person to knowingly promote, employ, use, assist, transport or permit a minor to
participate in the performance of, or in the production of, acts or material that includes
the minor engaging in: (1) Sexual activity; or (2) Simulated sexual activity that is
patently offensive.” T.C.A. § 39-17-1005(a).

       In arguing that the evidence is legally insufficient to support his especially
aggravated exploitation of a minor convictions, the Defendant relies upon United States
v. Lowe, 795 F.3d 519, 520 (6th Cir. 2015), for the proposition that the State has failed to
establish he had exclusive possession of the computers and thumb drives recovered in
this case.5 In that case, the defendant was charged with and convicted of knowingly
receiving, distributing, and possessing child pornography in violation of 18 U.S.C. §
2252(a). Between March and August 2011, a user downloaded child pornography to a
laptop found in the Defendant’s home, which he shared with his wife. A minor relative,
described as the Defendant’s adopted child lived with the Defendant at some point during
2011 but moved out before agents searched the home in August and retrieved a laptop
containing child pornography. The proof at trial showed that the laptop did not require a
password and automatically connected to the internet through a stored wireless password.
The laptop contained a common peer-to-peer file sharing program that downloaded child

       5
         It is not entirely clear from the Defendant’s brief exactly which computer or thumb drive he
claims were accessible to multiple people: the Hood computer and thumb drive or the Defendant’s
computer and thumb drive. We will address all in our argument.
                                               - 13 -
pornography onto the computer. The program was not password protected. The Sixth
Circuit reversed the conviction and reasoned as follows:

        “[a] juror could reasonably infer that [the defendant] owned and
        occasionally used the laptop from (1) the device’s sole username . . . (2)
        [the detective’s] testimony that the laptop “belonged to” [the defendant; and
        (3) [the federal agent’s] testimony about the March 10 visits to the Yahoo!
        email log-in page. . . [however] without improperly stacking inferences, no
        juror could infer from such limited evidence of ownership and use that [the
        defendant] knowingly downloaded, possessed, and distributed the child
        pornography found on the laptop. [The defendant] shared his home with
        two other people, both of whom could access the HP Pavilion laptop’s
        “Jamie” account and Shareaza file-sharing program without entering
        passwords.

Lowe, 795 F.3d at 523.

       Unlike the circumstances described in Lowe, each of the Defendant’s convictions
of especially aggravated sexual exploitation of a minor was based on forty photographs
depicting the victim engaged in digital-vaginal penetration, penile-vaginal penetration,
oral sex/fellatio, and other sexually explicit photographs of the victim.6 At trial, the
victim identified the same forty photographs as representing three separate sexual
encounters with the Defendant at her mother’s house and in the Defendant’s bedroom
where the Defendant documented these unlawful acts on his Fujifilm camera “to have
something on her.” Although the photographs did not show the Defendant’s face, there
were other identifiable characteristics of the Defendant including his wedding ring,
fingers, distinctive moles on his penis, a watch, pajamas and a bedspread and mini-fridge
from the Defendant’s bedroom. An expert in digital forensics determined that the
unlawful photographs were taken with the Defendant’s Fujifilm camera, and the hash
values of thirty-seven of the forty photographs from the Hood thumb drive matched the
photographs from the Defendant’s thumb drive. In addition, the forty photographs from
the Defendant’s thumb drive were contained in a password protected encrypted file that
could only be decrypted when connected to the Defendant’s computer and hard drive. To
the extent that the Defendant suggests that the victim or the Hoods conspired against him
by putting the incriminating thumb drive in his drawer, there was ample evidence
showing that the Defendant took extreme measures to prevent anyone from entering his

        6
          The hash values of each photograph corresponded with each count of especially aggravated
sexual exploitation of a minor. Specifically, the State provided the hash values for seventeen photographs
taken on January 14, 2011 (counts one through seventeen), twelve photographs taken on February 4, 2011
(counts eighteen through twenty-nine), and eleven photographs taken on February 8, 2011 (counts thirty
through forty).
                                                 - 14 -
bedroom without his express permission by placing a deadbolt and keypad on his door.
Based on this evidence, we conclude that any rational trier of fact could have found the
Defendant guilty of each count of especially aggravated sexual exploitation of a minor as
charged in the indictment. Accordingly, the Defendant is not entitled to relief.

        II. Admissibility of Evidence. The Defendant next argues that the trial court
erred in admitting the photographs from the Hood thumb drives in violation of Tennessee
Rules of Evidence 1001, 1002, and 1003, as they were not the “best evidence” available
because they were found on thumb drives rather than hard drives. In response, the State
contends that the trial court properly admitted the thumb drives which “contained original
evidence of the images as contemplated by the best evidence rule[.]” The State reasons
that the “the best evidence rule does not apply because the [D]efendant is not challenging
the content of the images” but is instead “challenging the credibility of the two people
who transferred the images onto the [SanDisk] thumb drive and turned it over to the
authorities.” Upon our review, we agree with the State.

        “Generally, the admissibility of evidence rests within the trial court’s sound
discretion, and the appellate court does not interfere with the exercise of that discretion
unless a clear abuse appears on the face of the record.” State v. Franklin, 308 S.W.3d
799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)). A trial
court is found to have abused its discretion when it applies “an incorrect legal standard or
reaches a conclusion that is ‘illogical or unreasonable and causes an injustice to the party
complaining.’” Lewis, 235 S.W.3d at 141 (quoting State v. Ruiz, 204 S.W.3d 772, 778
(Tenn. 2006). Rule 901, which requires evidence to be authenticated or identified,
provides: “The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to the court to support a finding by the
trier of fact that the matter in question is what its proponent claims.” Tenn. R. Evid.
901(a). In addition, Tennessee Rule of Evidence 1002, also known as the best evidence
rule, states, “To prove the content of a writing, recording, or photograph, the original
writing, recording, or photograph is required, except as otherwise provided[.]”

        Here, the gravamen of the Defendant’s argument is that the trial court erred in
admitting the Hood thumb drive, the content of which led to his arrest, because law
enforcement was unable to recover the original unlawful photographs from the hard drive
of the Hood computer. At the motion for new trial, defense counsel argued that the
inability of the agent to recover the original unlawful photographs from the hard drive of
the Hood computer made the evidence “incomplete” and bolstered his theory that Samuel
Hood conspired against him. To the degree that we understand the grounds supporting
the Defendant’s issue, Agent Christian’s testimony sufficiently established that the
photographs on the SanDisk thumb drive provided to police by Amy and Samuel Hood
were the exact same photographs taken by the Defendant’s Fujifilm camera, downloaded
                                           - 15 -
onto the Defendant’s computers, and transferred onto the Defendant’s red Ultra thumb
drive found during the search warrant. Although the photographs could not be retrieved
from either the Defendant’s or the Hood’s hard drives, Agent Christian verified through
forensic examination and analysis that the photographs existed on the Defendant’s hard
drive and the Hood hard drive, that the Defendant’s red Ultra thumb drive was last
inserted into the Hood computer before the Defendant “wiped” it and gave it to Amy
Hood, and that the Defendant’s red Ultra thumb drive was last plugged into the
Defendant’s personal computer on the same day the photographs were encrypted. “The
best evidence rule is a rule of preference rather than exclusion.” Iloube v. Cain, 397
S.W.3d 597, 602 (Tenn. Ct. App. 2012). “It does not exclude evidence but rather
requires the introduction of the best available form of the evidence.” Id. (internal
quotation marks and citations omitted). The photographs admitted into evidence and
forensically examined by Agent Christian were indeed originals, and thus, the best
evidence available. Therefore, we conclude that the trial court properly admitted the
Hood thumb drive and the photographs from it. The Defendant is not entitled to relief.

        III. Denial of Motion to Cross-Examine the Victim. The Defendant next argues
that the trial court improperly denied his motion to cross-examine the victim regarding
her sexual history because “another male whom the victim had earlier admitted to having
consensual sexual relations may have been presented to the jury” to prove an alternative
suspect. The State responds that the Defendant presented a sufficient defense and that the
trial court properly denied the Defendant’s motion. The State asserts that the Defendant
failed to explain the relevancy of the victim’s sexual history or support his argument with
relevant authority. Upon review, we agree with the State.

       The Sixth Amendment to the United States Constitution gives an accused the right
“to be confronted with the witnesses against him,” and this right is given to the States
through the Fourteenth Amendment. In addition, the Tennessee Constitution also gives
an accused the right “to meet the witnesses face to face.” The Tennessee Supreme Court
has determined that the confrontation language in the Tennessee Constitution grants a
higher right than the similar language in the Sixth Amendment of the United States
Constitution. State v. Deuter, 839 S.W.2d 391, 395 (Tenn. 1992). However, the
Tennessee Supreme Court subsequently ruled that “we have found no evidence to have
been excluded under our state constitution’s confrontation clause that was not also
excluded under the federal constitution’s counterpart.” State v. Lewis, 235 S.W.3d 136,
144 (Tenn. 2007).

          Tennessee Rule of Evidence 412(c), regarding specific instances of conduct,
states:



                                          - 16 -
       Evidence of specific instances of a victim’s sexual behavior is inadmissible
       unless admitted in accordance with the procedures in subdivision (d) of this
       rule, and the evidence is:

       (1) Required by the Tennessee or United States Constitution, or

       (2) Offered by the defendant on the issue of credibility of the victim,
       provided the prosecutor or victim has presented evidence as to the victim’s
       sexual behavior, and only to the extent needed to rebut the specific
       evidence presented by the prosecutor or victim, or

       (3) If the sexual behavior was with the accused, on the issue of consent, or

       (4) If the sexual behavior was with persons other than the accused,

              (i) to rebut or explain scientific or medical evidence, or
              (ii) to prove or explain the source of semen, injury, disease, or
              knowledge of sexual matters, or
              (iii) to prove consent if the evidence is of a pattern of sexual
              behavior so distinctive and so closely resembling the accused’s
              version of the alleged encounter with the victim that it tends to prove
              that the victim consented to the act charged or behaved in such a
              manner as to lead the defendant reasonably to believe that the victim
              consented.

Tenn. R. Evid. 412(c). As with other evidentiary rulings, admissibility of evidence under
rape shield rule rests in discretion of the trial court. State v. Sheline, 955 S.W.2d 42, 46
(Tenn. 1997). Where the defendant alleges a violation of his constitutional right to
present a defense, we consider the facts of each case carefully and apply the following
analysis: (1) the excluded evidence is critical to the defense; (2) the evidence bears
sufficient indicia of reliability; and (3) the interest supporting exclusion of the evidence is
substantially important. State v. Brown, 29 S.W.3d 427, 433-34 (Tenn. 2000) (citing
Chambers, 410 U.S. at 298-301).

       In the Defendant’s pre-trial Rule 412 motion, the Defendant cited the victim’s
statement that she had previously engaged in sexual activity with Stormy Reynolds, an
overweight adult white male during the time-frame in the indictment at her mother’s
house. The Defendant argued that he should be permitted to cross-examine the victim
regarding her sexual history (1) to rebut scientific evidence; specifically, the electronic
images generated by the unlawful photographs, and (2) to present the jury with an
alternative explanation for the unidentified white male in the unlawful photographs as
                                            - 17 -
part of his defense. At the June 12, 2015 pre-trial hearing, the victim, Amy Hood, Agent
Kon, and Agent Christian testified consistently with their testimonies at trial as
summarized above. As relevant to this issue, the victim also explained that she had a
one-month sexual relationship with then twenty-year-old Stormy Reynolds after she met
him in the summer of 2011. The victim denied that Reynolds was the man in the explicit
photographs and stated that, to her knowledge, Reynolds had never been to the
Defendant’s house where some of the photographs were taken. The trial court
subsequently denied the Defendant’s Rule 412 motion and found that the victim’s
relationship with Reynolds was irrelevant to the Defendant’s case and not admissible
under Rule 412. At the motion for new trial, defense counsel argued that the trial court
erred in denying the 412 motion but instead claimed that Samuel Hood had a sexual
relationship with the victim and was the person in the unlawful photographs. In its oral
findings of fact denying the Defendant’s motion for new trial, the trial court stated:

             On the evidence about the child’s sexual activity, I readily
      acknowledge that there are times when that evidence is, is highly relevant
      and needs to come in. That’s true in a case, for instance, where consent is
      an issue. A victim, an alleged victim claiming nonconsent, if he or she is
      an adult, I mean is over the age of 12 and, consent is actually an issue, the
      fact that he or she has had sex with a bunch of other people or even
      potentially one other person beforehand, that, that can be very relevant. But
      we don’t have a consent issue here. We don’t have a transmission of sexual
      disease. It’s not an exclusive list, but there has to be some reason for it to
      come in. And other than to bias the jury against this particular victim, I
      don’t see what it, what the reason was in this particular case. So, I don’t
      think that’s a valid ground here.

        Upon our review, we conclude that the trial court properly denied the Defendant’s
motion to cross-examine the victim regarding her sexual history. We agree with the State
that the unlawful photographs were not scientific or medical evidence as contemplated by
Rule 412(c)(4)(i). Although the metadata (hash values, file paths, etc.) behind the
photographs would constitute scientific evidence, the Defendant does not dispute the
legitimacy of that evidence. He was attempting to introduce testimony about the victim’s
sexual history in an effort to show that the unidentified white male in the unlawful
photographs was someone else. Based on our review of the record, the Defendant was
able to present this defense through his wife and other witnesses. Accordingly, the trial
court properly denied the motion, and the Defendant is not entitled to relief.




                                          - 18 -
                             CONCLUSION

Upon review, we affirm the judgments of the trial court.


                                     ____________________________________
                                     CAMILLE R. MCMULLEN, JUDGE




                                   - 19 -
