                                                                                           02/20/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                October 16, 2019 Session

     STATE OF TENNESSEE v. JEREMY RANDALL C. LEDBETTER

                Appeal from the Criminal Court for Davidson County
                  No. 2015-B-1160 J. Randall Wyatt, Jr., Judge
                                     Steve R. Dozier, Judge


                             No. M2018-00846-CCA-R3-CD


The Defendant, Jeremy Randall C. Ledbetter, was convicted by a Davidson County
Criminal Court jury of two counts of rape of a child, a Class A felony; two counts of
aggravated sexual battery, a Class B felony; two counts of soliciting sexual exploitation
of a minor, a Class B felony; and one count of exploitation by displaying sexual acts to a
minor, a Class C felony. See T.C.A. §§ 39-13-522 (2018) (rape of a child), 39-13-504
(2018) (aggravated sexual battery), 39-13-529(a) (soliciting sexual exploitation of a
minor) (Supp. 2011, Supp. 2012, Supp. 2013), 39-13-529(b)(1) (displaying sexual acts to
a minor). The Defendant is serving an effective eighty-one years for the convictions. On
appeal, he contends that (1) the evidence is insufficient to support his convictions, (2) the
State’s election of offenses was inadequate, (3) the trial court erred in denying his motion
for a severance, (4) the court erred in admitting evidence, and (5) his sentence is
excessive. We affirm the judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

Shyanne C. Riddle (on appeal), Rob McKinney (at trial), Megan Geer (at trial), and
Brittney Hollis (at pretrial proceedings), Nashville, Tennessee, for the appellant, Jeremy
Randall C. Ledbetter.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Deputy
Attorney General; Glenn R. Funk, District Attorney General; Alyssa Hennig, Chad
Butler, and Brian Ewald, Assistant District Attorneys General, for the appellee, State of
Tennessee.
                                       OPINION

       The Defendant’s convictions relate to his sexual abuse of his father’s girlfriend’s
grandson. The victim was approximately age ten when the abuse began in 2012 and
approximately twelve when it ceased in December 2014. The Defendant, who was age
twenty-four when the abuse began, lived with his father. The abuse occurred when the
victim visited his grandmother at the Defendant’s father’s home.

       At the trial, the victim, who was age fourteen, testified that he had known the
Defendant all of the victim’s life. The victim said the Defendant began sexually abusing
him when the victim was age ten and in the fifth grade. The victim said the abuse
continued for about two years, when the victim was age twelve.

        The victim testified that the first incident of abuse occurred when the victim was
visiting his grandmother at the Defendant’s father’s home. The victim said the first
incident began in a computer room and moved to the shower, both of which were
upstairs. The victim said that he had been watching television while the Defendant used
a computer and that the Defendant left the room and returned with a green, cylindrical
“toy” that flared at one end and had a hole through it. The victim said the toy was about
seven inches long. The victim said the Defendant, who was not wearing pants, placed the
toy on the Defendant’s erect penis and moved the toy up and down with the Defendant’s
hand. The victim said the Defendant offered no explanation of what he was doing. The
victim said a white substance came out of the Defendant’s penis and landed on the floor.
The victim said he had not known what the substance was and that the Defendant told
him it was “cum.” The victim said that he thought this was weird and that he left the
computer room to shower. The victim said that the Defendant entered the bathroom,
even though the door had been locked, entered the shower where the naked victim was
showering, and placed the green toy on the victim’s penis. The victim said the
Defendant’s hand touched the victim’s penis. The victim said he had an erection. The
victim said the Defendant did not speak. The victim said his grandmother and the
Defendant’s father were downstairs sleeping during the incident.

       The victim testified that after the incident, the Defendant asked, “[W]as it fun[?]”
and that the Defendant told the victim, “I’m going to get out of the shower and go back in
the computer room or whatever and don’t tell anyone.” The victim said the Defendant
threatened to kill the victim’s family if the victim told anyone about the incident. The
victim said the Defendant showed the victim two guns and threatened to shoot the
victim’s family. The victim said that one gun was black and that he thought it was a
nine-millimeter “automatic” weapon. The victim said the Defendant pointed the gun at
                                            -2-
him. The victim said that the Defendant threatened more than once to kill the victim’s
family and that the threats were the reason the victim did not disclose the abuse sooner.

       The victim testified that the second incident he recalled involved the Defendant
manually masturbating himself. The victim said this occurred no more than two weeks
after the first incident. The victim thought he was watching television or using his
Playstation and said he looked over to ask the Defendant a question when he saw the
Defendant masturbating while the Defendant played a computer game. The victim said
the Defendant stated that he was masturbating. The victim said a white substance came
out of the Defendant’s penis. The victim said that after the Defendant ejaculated, the
Defendant made the victim sit in a chair in front of the Defendant and that the Defendant
placed his arms around the victim and masturbated the victim. The victim said that after
the Defendant masturbated the victim, the victim stated he needed to urinate and that the
Defendant made the victim urinate in the Defendant’s mouth. The victim stated that
anytime he said he was going to the bathroom, the Defendant asked if he had to urinate,
and that if the victim said yes, the Defendant made the victim “pee on his face and . . . in
his mouth and stuff.” The victim said that during these incidents, the Defendant’s hand
and mouth were on the victim’s penis. The victim said that this occurred multiple times
and that it occurred in the computer room, bedroom, and bathroom.

       The victim testified that the Defendant used the green toy on the himself and on
the victim on multiple occasions.

       The victim testified that the Defendant also used a pink and blue toy that was
shaped like the green toy. The victim said the Defendant used the pink and blue toy to
masturbate both himself and the victim on multiple occasions. The victim recalled that
the Defendant first used the pink and blue toy shortly after the Defendant received it.
The victim said a box came in the mail and that the victim saw it and wondered what was
inside. The victim said the Defendant stated he would tell the victim what was inside the
box later or would not tell the victim anything. The victim said that later that night, the
Defendant opened the box and took out the pink and blue toy. The victim said the
Defendant used the toy to masturbate himself in the victim’s presence in the computer
room while unspecified others were sleeping. The victim said the Defendant also used
the toy to masturbate the victim.

       The victim testified the Defendant used a red and black toy with a dragon head
and a cylinder on both the Defendant and the victim. The victim described the toy as
being about seven inches long. The victim said the Defendant masturbated himself with

                                            -3-
the dragon toy in the victim’s presence more than once. The victim said the Defendant
masturbated the victim with the dragon toy more than once.

        The victim testified that the Defendant sometimes placed the toys inside a
zippered compartment in a stuffed animal. The victim thought the animal was a dog and
agreed it was the size of a medium dog. The victim said the Defendant placed a toy
inside the stuffed animal, applied clear or white lubricant to the inside of the toy, placed
his penis inside the stuffed animal, and “had sex” with it. The victim said the Defendant
stated the stuffed animal had cost “a couple hundred dollars.”

       The victim testified the Defendant had two types and numerous bottles of
lubricant, which the Defendant kept in a dresser drawer in the Defendant’s bedroom. The
victim said he learned what lubricant was when the Defendant told him. The victim said
the Defendant had the victim taste the lubricant, explained what it was, and showed the
victim how to use it. The victim said the Defendant had a bottle of “KY” and a black
bottle with two red rings around the top and bottom of the label.

      The victim testified that, in addition to the incidents in which the Defendant
masturbated the victim, the Defendant touched the victim’s penis with the Defendant’s
mouth and butt more than once.

       The victim testified the Defendant also made the victim masturbate himself. The
victim said that the Defendant gave him instructions about how to masturbate himself and
that the Defendant watched the victim do it. The victim said this happened more than
once.

       The victim testified that, on one occasion, he and the Defendant were in the
computer room, that the Defendant was masturbating the victim with the Defendant’s
hand, and that the Defendant stated he wanted to do something new. The victim said the
Defendant bent down and placed the victim’s penis in the Defendant’s mouth. The
victim said this was a different occasion than the one he had described in which he
urinated in the Defendant’s mouth. The victim that said his penis was erect when the
Defendant placed it in Defendant’s mouth and that the victim did not ejaculate.

       The victim testified that, on another occasion, he and the Defendant were in the
shower and that the Defendant placed the victim’s penis in the Defendant’s mouth. The
victim said that, on a different occasion, he and the Defendant lay on the Defendant’s
bed. The victim said it was cold at the time. The victim said the Defendant removed the
victim’s clothes and placed the victim’s penis in the Defendant’s mouth.
                                            -4-
       The victim testified that on an occasion, the Defendant pushed the victim onto his
back on the futon in the computer room, applied lubricant to the victim’s erect penis, got
on top of the victim, and placed the victim’s penis inside the Defendant’s butt.

       The victim testified that the Defendant never placed the Defendant’s penis inside
the victim’s butt and that the Defendant never placed his penis inside the victim’s mouth.

         The victim testified that the Defendant showed the victim computer images of
naked animals which resembled Pokemon characters. The victim said this occurred more
than once. The victim recalled that one of the characters appeared to be “half person, half
. . . bull or something.” He said the character had horns and was naked. The victim said
the character’s hand was on its penis and white ejaculate was coming out of it. The
victim said the Defendant showed him other, similar images.

       The victim testified that he revealed the abuse to his brother and grandmother
around Christmas when the victim was age twelve. The victim said they had been
playing Monopoly, that he mentioned the Defendant’s name, and that his brother stated
the Defendant had asked the brother to show the Defendant his penis when the brother
was a child. The victim said this prompted him to reveal the abuse. He said he told his
brother “everything.” He said his grandmother was present but did not say anything. He
said that he wanted something to happen and that he “made” his grandmother call his
mother. He said that when his mother picked him up, she stated, “[W]ell, he won’t go
over there anymore then, don’t worry about it.” The victim said he thought this was
“stupid” and “made” his mother call his father. The victim said that the police became
involved and that he gave a forensic interview to a woman shortly after he told his
brother and grandmother about the abuse.

       The victim did not recall if he told the forensic interviewer about the Defendant’s
making the victim urinate on the Defendant. He acknowledged that the video recording
of the interview did not reflect that he had mentioned it to the interviewer. He said he
had not told the interviewer that the Defendant made him urinate on the Defendant’s butt.
The victim did not recall having said something like “you got out lucky” when his
brother told him about what the Defendant had asked the brother to do.

       The victim testified that the first incident occurred after his tenth birthday, which
was in August 2012. He said the first incident occurred when he was in fifth grade. He
agreed that he told the forensic interviewer that the abuse occurred fifty-two times and
that he never felt comfortable telling his family how many times the abuse occurred. The
                                            -5-
victim said he estimated the number of occurrences based upon his having gone to the
Defendant’s father’s house every other weekend for two years. The victim did not recall
if he told the first police officer who responded that the Defendant pointed the gun at the
victim.

        The victim did not recall how many times the Defendant made him anally
penetrate the Defendant. The victim said that if the recording of the forensic interview
reflected that anal penetration occurred ten times, the correct number would be “around
ten times.” When asked why he told the forensic interviewer that the Defendant “tried
to” put the victim’s penis in the Defendant’s mouth, the victim stated the Defendant
would begin performing oral sex but that the victim would make excuses, such as that the
Defendant’s beard was irritating, to get the Defendant to stop. The victim did not recall if
he specifically told the forensic interviewer that the Defendant put the Defendant’s mouth
on the victim’s penis. The victim did not remember if he told the police about the
Defendant’s making the victim urinate on the Defendant’s face and did not think he told
this to the forensic interviewer. The victim said he first disclosed this to the prosecutor a
month or two before the trial.

       The victim’s grandmother testified that she played Monopoly with the victim and
the victim’s brother in December 2014. She said the victim stated that the Defendant had
sexually abused him. She agreed the victim provided detailed information. She said she
had been “livid.” She said the victim stated he had tried to tell several people but no one
paid attention to him. She said she told the victim she would call his parents the next day
and that she would take him to the authorities if his parents did not do anything. She
said she did not call the police because it was midnight on New Year’s Eve. She said she
called the victim’s parents the next day.

       The victim’s mother testified that she learned of the sexual abuse when her mother
called her and advised her of the victim’s disclosure of sexual abuse by the Defendant.
She said that she spoke to her husband and that he called the police. She said an officer
came to their home on January 1, 2015, that he took a report, that the officer did not
formally interview the victim, and that the officer advised them regarding what would
happen next.

       The victim’s mother testified that she took the victim to a meeting with a Child
Protective Services (CPS) employee whose name she thought was Ashley. She said they
met with CPS twice in 2015. She said she also took the victim to Nashville Children’s
Alliance in February and to Our Kids in March. She said that the victim was interviewed

                                             -6-
at Nashville Children’s Alliance and that a medical examination was performed at Our
Kids.

       The victim’s paternal grandmother testified that she had known the Defendant for
almost seventeen years. She thought he had been born in 1984 and was about twenty-
eight years old. She said the Defendant had known the victim since the victim’s birth.
She said she and the Defendant’s father used to be coworkers and became romantically
involved. She said she had lived intermittently in the same household as the Defendant
and the Defendant’s father in 2005, 2012, and 2013. She said that she lived with them for
the entire year of 2013 and that she moved to Florida in January 2014. She said that after
she moved to Florida, she visited every two to four months and stayed with the
Defendant’s father and the Defendant. She said the victim visited her almost weekly
when she lived with the Defendant’s father and the Defendant.

       The victim’s grandmother testified that she shared a downstairs bedroom with the
Defendant’s father and that the Defendant’s bedroom was upstairs. She said the victim
slept upstairs for overnight visits.

        The victim’s grandmother said the Defendant bought things for the victim and
took the victim to restaurants and allowed the victim to order from the adult menu. She
said, “They hung out quite a bit together,” and she thought it was unusual for the
Defendant to give the victim this much attention. She said the Defendant and the victim
were home alone at times. She said that the victim had access to a cell phone in 2013 and
that the Defendant called and sent text messages frequently. The victim’s grandmother
stated that she said something to the Defendant and the victim about the cell phone usage,
which she thought was unusual.

        The victim’s grandmother testified that she had seen the Defendant tickle the
victim near the victim’s groin. She said this happened several times, beginning when the
victim was around age three to four. She said it was still occurring when the victim was
ten to twelve years old.

       The victim’s grandmother testified that she learned of the allegations in a
telephone call from the victim’s mother after Christmas 2014. She said she had visited
Tennessee and had stayed in the Defendant’s father’s house over Christmas 2014. She
said the victim had visited her while she was there and that he had stayed upstairs most of
the time he was at the Defendant’s father’s house.



                                            -7-
        Lillie Kennedy, a former Nashville Children’s Alliance forensic interviewer,
testified that she interviewed the victim on January 26, 2015. She identified a video
recording of the interview, which was played for the jury.

        In the recording, the victim stated that his grandmother’s boyfriend’s son had been
sexually abusing him for two years. He said he had been at his other grandmother’s
house during Christmas break and had talked with his brother about how the Defendant
was weird. He said that his grandmother called his mother and that his mother said to
“let it go” and not worry about it because the victim would not go to the Defendant’s
father’s house anymore. The victim said they called his father because his mother had
not seemed appropriately concerned.

       In the recording, the victim said he went to the Defendant’s father’s house on
Christmas afternoon 2014 and stayed “until Sunday.” He said he went to his other
grandmother’s house on Monday. He said that while he and his brother were at the other
grandmother’s house, the victim’s brother said the Defendant had asked the victim’s
brother “to molest him basically” and that the victim’s brother had walked away. The
victim said that his parents had been in another room and that his brother had been able to
walk away but that the victim’s parents had been in another part of town and that the
victim had not been able to walk away.

       In the recording, the victim said that the Defendant had asked the victim’s mother
when she was going to tell the victim “about everything or whatever,” that the victim’s
mother had said the victim did not need to be told anything, and that the Defendant
showed the victim “everything” in the Defendant’s “college books.” The victim said the
Defendant had “all this stuff that was weird,” including “silicone dragons and stuff.” The
victim said the abuse started in fifth grade.

       Regarding the first time the Defendant touched him, the victim said in the
recording that the Defendant showed him a silicone object and that the Defendant made
the victim shower with him. The victim described the object as “some kind of toy or
something.” He said the object was a dragon’s mouth with a hole on one side and was
cylindrical. He said the Defendant said he put it in hot water and the hot water made it do
something.

       In the recording, the victim said that the Defendant had toys and “lube” and that
whenever the victim showered when others were asleep or away from home, the
Defendant got in the shower with him. The victim said the Defendant brought the
lubricants into the shower, applied them to the Defendant’s hand, and rubbed the victim’s
                                            -8-
penis. When asked how the Defendant used the lubricant, the victim said the Defendant
put it into the dragon’s mouth. The victim said the Defendant put the dragon’s mouth
over the Defendant’s penis. The victim said the Defendant sometimes forced the victim
to put the dragon on the victim’s penis.

       In the recording, the victim said the Defendant had an expensive stuffed animal
with zippers to “hold that kind of thing.” The victim said Defendant showed the victim
that the stuffed animal had zippers on its butt and stomach. When asked where the
Defendant obtained the sexual toys, the victim said that he did not know where the
Defendant obtained the bear but that some of the other toys and the lubricant from a
“website called dragon something.”

        When asked what the Defendant did with a teddy bear, the victim said in the
recording that the Defendant put toys and lubricant in it. The victim said the Defendant
sometimes did this when the victim was showering. The victim said the Defendant never
made him “do it with the bear.” The victim said the Defendant sometimes placed the
dragon head inside the bear. The victim said the Defendant also had a green toy and a
pink and blue toy, and the victim drew the shape of these toys on a large sheet of paper
that is visible in the video recording. The victim said the Defendant stated the toys were
fun. The victim said the Defendant made him do the same things with the toys, other
than the bear, that the Defendant did with them.

       The victim said in the recording that the lubricant was slick like shampoo and was
white or clear. He said the Defendant used the lubricant “to make it slick so he could put
his penis in.”

       The victim said in the recording that the sexual abuse occurred many times and
that he visited the Defendant’s father’s home every other weekend. When asked if the
abuse occurred more or less than ten times, the victim responded “a lot more.” He
estimated the abuse occurred fifty-two times and said it occurred every other weekend
since he had been in fifth grade.

      In the recording, the victim said the sexual abuse occurred in the Defendant’s
bedroom, in the computer room, and in the shower. The victim said he slept on the
downstairs couch or in his room at the Defendant’s father’s house. He said he had his
own room upstairs. He said his sister usually slept in their grandmother’s room.

        The victim said in the recording that the Defendant used a detachable showerhead
to try to find the victim’s sensitive spots. The victim said this included the back of his
                                           -9-
legs and his groin. The victim said the Defendant touched the victim’s private parts in
the shower.

       In the recording, the victim said the Defendant tried to make the victim put the
victim’s penis in the Defendant’s butt about ten times. The victim said his penis
penetrated the Defendant’s anus. When asked if penetration occurred every time, the
victim said, “I guess,” and explained that he “tried to block it out.” The victim said this
occurred on the Defendant’s futon. The victim said the Defendant made the victim sit,
“used the lube,” and tried to make the victim put the victim’s penis in the Defendant’s
butt. The victim agreed that his penis sometimes went inside the Defendant’s anus
during the acts on the futon. The victim said he came up with “a stupid excuse” to leave
the room to stop these incidents. He said the Defendant told him that he would need to
know how to do this for later in life.

      In the recording, the victim said the Defendant tried to “suck” the victim’s penis.
The victim said that this happened “almost every time” and that he came up with excuses,
such as that the Defendant’s beard scratched the victim’s legs, to make the Defendant
stop. The victim said the Defendant never placed the Defendant’s penis in the victim’s
mouth.

       The victim said in the recording that the Defendant masturbated him by grabbing
the victim’s penis with the Defendant’s lubricated hand and “yanking it.” The victim
said the Defendant also made the victim masturbate the Defendant.

       In the recording, the victim said the Defendant used the word “masturbation” and
talked about “orgasms.” The victim said the Defendant’s orgasms were “gross” and
involved “this hot white stuff” which came from the Defendant’s penis after the
Defendant masturbated himself.

       The victim said in the recording that the last sexual act happened on the Saturday
after Christmas. The victim said that he had been in the shower, that his grandmother left
with her boyfriend to take the victim’s sister home, that the Defendant entered the
shower, and that the incident ended quickly because the victim’s grandmother and her
boyfriend returned home. The victim said the Defendant heard the garage door open and
rushed from the shower to dress. The victim said “nothing much” happened in the
shower because the Defendant “didn’t get a chance to start anything.”

      In the recording, the victim said the Defendant showed the victim a website “of
people drawing with . . . animals and stuff . . . without their clothes on.” The victim said
                                            -10-
the animals looked like Pokemon characters.        The victim said the Defendant had a
physiology textbook.

       Ms. Kennedy testified that her goal in conducting a forensic interview was not to
obtain every detail. She said that she tried to limit interviews to about an hour and that in
some cases, attempting to obtain every detail “could take days.”

       Ms. Kennedy identified a drawing of one of the Defendant’s sex toys that the
victim made during the interview. The drawing was received as an exhibit.

       Metro Nashville Police Detective Robert Carrigan testified that Detective Jeff
Wiser, who had been the lead detective in the present case, was retired at the time of the
trial. Detective Carrigan said that on March 20, 2015, Detective O’Quinn, Detective
Mayo, and he assisted Detective Wiser in searching the house where the Defendant lived
and in which the alleged abuse occurred. Detective Carrigan said the search warrant
included items that had been specifically described by the victim. Detective Carrigan
said they found items for which they were looking upstairs in the Defendant’s bedroom
and in a computer room across the hall. He said they also seized a “couple of things”
from a guest bedroom upstairs.

       Detective Carrigan identified two books found in the Defendant’s bedroom, which
he said contained anime and comic-book style drawings of dragons having sex. He said a
photograph taken in the Defendant’s bedroom depicted a large wolf or dog stuffed
animal, which he said the police did not seize. Referring to photographs, Detective
Carrigan said the police found “dragon tail dildos” and “lots of bottles of lube” in the
Defendant’s dresser drawer. Detective Carrigan said a black pistol, which was depicted
in a photograph exhibit, was found in the Defendant’s bedroom. Detective Carrigan said
the police also seized computers, cell phones, and other, unspecified “digital items.” He
said that one of the bottles of lubricant they seized had a red label and that of the eleven
bottles seized, four contained white lubricant and seven contained clear lubricant. He
said one of the items the police seized was a lime green “dragon tail dildo” with a hole at
the bottom and at the top. He said another seized item was a similar pink and blue item
with a hole at the bottom that was “sort of shaped like a vagina” and a hole at the top. He
said a third item, which was red and black, was shaped like a dragon’s mouth with teeth
on the front and a hole on each end. He agreed that DNA testing was not performed on
the sex toys and that no child pornography was found.

      The victim was recalled and identified the bottles of lubricant as ones he had seen
when the Defendant applied lubricant to the Defendant’s hand or the toys. The victim
                                            -11-
was shown unspecified items and identified “[t]he green one” as having been used on the
Defendant’s and his penises. The victim also identified “the dragon” and said it was used
in the same manner as the green item on the Defendant’s and the victim’s penises. The
victim identified a pink and blue item and said it was used in the same manner as the
other two.

        Metro Nashville Police Detective Chad Gish, an expert in digital forensics,
testified that he extracted data from two cell phones, hard drives from three computer
towers, and a flash drive related to this case. He said he obtained relevant evidence from
a cell phone and a hard drive.

       Detective Gish testified that the data he recovered included “animation
pornography,” most of which was stored on a computer. He identified photographs,
which were received as exhibits, and said they were a representative sample of the
animation pornography.1 He said the metadata showed that some of the images had been
placed in the folders on the hard drive on February 4, 2015; January 27, 2015; January
30, 2015; and February 8, 2015.

       Detective Gish testified that he recovered internet search queries and browsing
history from one of the computer hard drives. He identified a document as a partial list of
Google searches recorded on the computer hard drive. He identified a March 7, 2013
search query as “I was tickled till I peed as a kid.” He said April 18, 2013 searches were
performed for “If your child asked would it be okay to masturbate, what would you say?”
and “Would you allow your child to walk around the house naked?” He said a September
26, 2013 search was conducted for “bad dragon Bruce with cum tube.” He said a search
was performed on January 4, 2015, for “Curtis Ledbetter, Nashville, Tennessee.”2 On
January 9, 2015, searches were conducted for “Tennessee penalty for conviction of child
abuse” and “Tennessee penalty for conviction of child molestation.” On February 6,
2105, the computer was used to search for “sealed indictment.”

       Detective Gish testified that a Skype account had been installed on the computer
recovered from the Defendant’s bedroom. Detective Gish said that the screen name for
the Skype account was “youko.shinryu,” that the full name was Youko Shinryu, and that
the account was established on June 26, 2012. Detective Gish identified a document


1
  The record reflects that the trial court limited the number of admissible pornographic images to a
representative sample.
2
  Other evidence showed that the Defendant, who was indicted as “Jeremy Randall C. Ledbetter, was
commonly known as “Curtis.”
                                               -12-
containing July 2013 Skype chat messages exchanged between Youko Shinryu and a
person whose screen name was “ktcopache” and whose user name was Tay Ferret. In the
chat messages, Youko Shinryu asked Tay Ferret, “[H]ypothetically speaking, if the laws
were different here, would do anything with a kid?” Tay Ferret responded that he would
“assuming [it’s] consensual.” Youko Shinryu stated, “[I] would, so long as it were
con[s]ensual and they initiated the interaction.” In further messages, Youko Shinryu
stated that he would ask a child if the child “wanted to,” agreed he would not want to do
anything coercive, and said he would ensure the child “understood what they were getting
into.” Youko Shinryu said, “I greatly appreciate my [freedoms] and would not do
anything to violate them lol. So, this stuff is fun to imagine but of course, not worth
going to jail for. . . . [I]f a child were to really approach me in real life in a sexual way,
[I]’d probably freak out and start hollering for them to get away[.]” Tay Ferrett said he
would not do well in prison, and Youko Shinryu agreed and responded that a person’s life
would be ruined after incarceration because a person would not be able to obtain a
“decent job.” The discussion turned to the age of consent in other parts of the world and
in states within the United States.

         Detective Gish testified that a cell phone recovered in the search contained Skype
chat messages between Youko Shinryu and Tay Ferrett. Detective Gish said messages
associated with the same account but sent or received using different devices sometimes,
but did not always, synced to all devices associated with a Skype user’s account.
Detective Gish said the chat messages between these individuals, which were
documented in an exhibit, occurred from November 20, 2014 through December 12,
2014. In the messages, Youko Shinryu reported having found a drawing he made with a
“dragon with a dick and a puddle.” Tay Ferret responded, “Hehe, nice.” Tay Ferret also
stated, “I do know I tried dawing [sic] some sexy dragons before that drawing I posted.”
Youko Shinryu said, “I thought I had gotten rid of everything of mine, [I’m] a terrible
artist . . . but one was spared from the femous [sic] . . . I got a hardbound book on the
way[.]” Tay Ferret asked, “[W]ith sexy dragons?” and Youko Shinryu responded,
“Yup[.]” Youko Shinryu stated, “I wish there were some peeing dragons, but alas it
seems none of them had to potty[.]” Tay Ferret said, “[D]ragon pee is hot. Literally!”
Youko Shinryu said, “[D]epends on the dragon, I bet ice [dragon’s] pee is probably kinda
a [sic] cold[.]”

       In the chat messages from the cell phone, Youko Shinryu said he “liked the idea”
of performing oral sex on a person who needed to urinate and lost bladder control during
the sexual act. Tay Ferret said this sounded “really sexy.” Youko Shinryu said,
[U]sually, I imagine when I was a kid, something that I would have liked to do and
something I wanted done to me . . . so in my imagination the penis is always pretty small
                                            -13-
when they push it in, that way [I’m] not choked[.]” After Tay Ferret said, “[S]maller is
better for cases like this,” Youko Shinryu stated, “[I’ve] always kinda liked small
penises[.]”

        As the chat continued, Youko Shinryu asked if Tay Ferret had “friends that
indulge in pee play with you?” After Tay Ferret said no, Youko Shinryu said, “I have 1,
but I had to groom him for 10 years to do it[.]” Youko Shinryu said the person never
volunteered and that Youko Shinryu always had to ask him. Youko Shinryu said that he
and this individual had “done blow jobs, hand jobs” and that the individual “[doesn’t]
like anal” and “[can’t] take anal[.]” Youko Shinryu said the individual “[can’t] give blow
jobs . . . and [isn’t] great at hand jobs[.]” Youko Shinryu added, “[H]e’s just a buddy that
[I] mess around with every once in a while, maybe a couple times in a year, if that[.]”
When Tay Ferret asked what “kinda pee stuff” Youko Shinryu and the individual had
engaged in, Youko Shinryu responded, “[I’ve] gotten him to pee inside of me a few
times, and [I’ve] tried to drink from him twice[.]”

      After reading the chat messages to the jury, Detective Gish testified that the
Defendant owned the cell phone with the Skype chat messages between Tay Ferret and
Youko Shinryu. He said he never determined the identity of Tay Ferret.

       Detective Gish testified that he did not recover any human pornography from the
devices he analyzed. He agreed that the search engine queries for penalties for child
abuse or child molestation and for sealed indictments occurred after the police
investigation began.

       The Defendant testified that he never placed lubricant on his hand and rubbed the
victim’s penis. The Defendant said he never put his hand around the victim’s penis and
had the victim urinate in the Defendant’s mouth. The Defendant said he never made the
victim masturbate in the Defendant’s presence with the green sex toy or the pink and blue
sex toy. The Defendant admitted he masturbated with a sex toy in the victim’s presence.
The Defendant said he never performed oral sex on the victim in the computer room.
The Defendant stated he never forced the victim to put the victim’s penis in the
Defendant’s anus.

       The Defendant testified that he lived at his father’s house in an upstairs bedroom.
The Defendant said that he had known the victim all of the victim’s life and that the
victim visited the house to see his grandmother and to “get away from his family.” The
Defendant said he and victim played video games and watched television or movies

                                            -14-
during the victim’s visits. The Defendant estimated that the victim visited twelve to
fourteen times but did not specify in what time period.

        The Defendant testified that during the visits, the victim sometimes hit the
victim’s groin. The Defendant thought the victim might be starting puberty and
experiencing erections. The Defendant said that he told the victim to talk to the victim’s
father, mother, or guidance counselor and that the victim said he would not talk to these
individuals or anyone. The Defendant thought this occurred around the end of 2012. The
Defendant said he sent a text message to the victim’s mother and inquired whether “he
knew anything about that.” He said she responded that the victim did not know and did
not need to know. The Defendant said that on one occasion when the victim was hitting
himself, the Defendant told the victim that hitting himself was not the way to deal with
the situation and that there were other ways to deal with it. The Defendant said he told
the victim about masturbation, lubricants, and “the birds and the bees.” The Defendant
said that when the victim first began hitting himself, the Defendant restrained the victim.
He said he had been concerned about the force with which the victim had hit himself. He
said that, at some point, he asked the victim why the victim hit himself and that the
victim said something like, “[I]t was getting stiff.” The Defendant denied that he ever
touched the victim sexually.

       The Defendant testified that after he had the masturbation conversation with the
victim, the Defendant left the computer room to allow the victim time to digest the
information. The Defendant said that after he returned, the victim took out the victim’s
penis and began masturbating. The Defendant said he froze and did not tell the victim to
stop or leave the room. The Defendant thought they had a conversation about what was
appropriate and what was inappropriate in the presence of other people, but the
Defendant did not recall when this conversation may have taken place.

       The Defendant testified that after one or two incidents of the victim’s masturbating
in his presence, the Defendant became aware that the victim seemed to have discomfort
from masturbation, but the Defendant did not recall the specific conversation. The
Defendant said that he told the victim that alternatives to using the victim’s hand existed
and that the Defendant showed the victim his sex toys. The Defendant said he gave the
victim a “clinical” explanation of how to use the toys and denied that he ever forced the
victim to use the toys. The Defendant said, “I left it as his option if he wanted to pick it
up, use it or leave it there.” The Defendant said he did not touch the victim or put
lubricant in the victim’s hand, but the Defendant said he allowed the victim access to the
lubricant. The Defendant said, “I took [the lubricant] out and put it in the room and
explained what it was and what he could use it for.” He thought the lubricant he provided
                                            -15-
had been introduced into evidence previously. He said he bought lubricant in bulk
because it had been on sale. He agreed that he also provided the toys to the victim and
agreed that the lubricant and the toys were to be used together. He said the victim used
the green toy and the pink and blue toy. The Defendant did not think the victim ever
used the red and black dragon toy.

       The Defendant denied showering with the victim. The Defendant said the victim
masturbated in the victim’s bedroom. The Defendant said he tried to talk to the victim
about it but that the conversation was awkward and that the Defendant “let him do his
own thing.” The Defendant denied watching the victim masturbate but said he was sure
he had glanced or seen motion but had not looked for an extended period of time. The
Defendant said he had been playing computer games or watching a movie and “kind of
ignoring” the victim’s masturbation. The Defendant said that he suggested that the
victim masturbate at home but that the victim said he was not allowed to close or lock
doors.

        The Defendant testified that he was a “furry,” which he said was a person attracted
to fictitious animalistic characters. He said he was attracted to dragons and griffins. He
said a website called Bad Dragon catered to people with this sexual interest. He said the
website “create[d] dildos and male [penile] devices what would kind of mimic what we
believe those creatures would have.”

       The Defendant testified that he “crossed the line” by deciding it was acceptable for
him to masturbate at the same time as the victim. The Defendant said that when he did
so, he was not “engaged with” the victim and that he was attracted to the images depicted
in the pornography that had been shown to the jury, not to people. The Defendant said
that when he masturbated in the room with the victim, the Defendant had been looking at
images on his computer. The Defendant said he was not sexually attracted to the victim.
The Defendant said he and the victim had masturbated in the same room, but the
Defendant “wasn’t masturbating to [the victim] or for [the victim].” The Defendant
claimed his masturbating was unrelated to the victim’s presence in the room. The
Defendant agreed that the lubricant and sex toys were used during the mutual
masturbation occurrences.

       The Defendant testified that he looked at the pornographic images on his computer
and that he did not force the victim to view them. The Defendant said, however, that the
victim looked at them on occasion but said the victim “didn’t seem to have any interest in
them.” The Defendant said that the victim asked about the images and that the Defendant
told the victim, “[I]t’s the stuff that I look at.”
                                           -16-
       The Defendant testified that he asked the victim to urinate on him once. The
Defendant said that the victim said he needed to use the restroom, that the Defendant
asked if the victim “would be okay with” urinating on the Defendant, that the victim
agreed, and that the victim urinated on the Defendant’s chest and shirt. When asked why
he had asked the victim to do this, the Defendant said he enjoyed urination “[i]n a sexual
way.” The Defendant agreed he asked the victim to urinate on him for the Defendant’s
sexual gratification. The Defendant said he did not ask the victim to urinate on him again
because the Defendant “did not have that need, have that desire.” The Defendant said the
victim’s age was unrelated to the Defendant’s desire for the victim to urinate on him.
The Defendant said that he had had this interest when he was a child but that he was not
interested in children specifically. He said a person’s age was immaterial.

       The Defendant testified that he never threatened the victim with a gun or showed
the victim a gun in a threatening manner but that the victim had seen guns he and his
father owned and had shot a gun with the Defendant and the Defendant’s father at the
victim’s grandmother’s house. The Defendant said he and his father each owned a black
nine-millimeter pistol. He said his gun and his father’s guns were slightly different. He
agreed that his gun was found in his room during the execution of the search warrant.

       When asked about his March 2013 computer search related to whether boiling a
silicone toy could damage it, he explained that he wanted to ensure he cleaned his toys
properly “after personal use.”

        The Defendant testified that he was stressed, scared, and hurt when he learned of
the allegations. He said that as soon as he learned of possible criminal charges, “[W]e
started looking into getting legal advice,” and that he performed Google searches for his
names and the “laws . . . for these things I have been accused of.” He said he learned of
the term “sealed indictment” from trial counsel. He acknowledged that allowing the
victim to masturbate in front of him had been “very inappropriate” but said he did not
think it was criminal.

       The Defendant testified that he had been told to expect a search warrant and that
he did not do anything to prepare for it. He said he left all of his sexually related items
where they were. He noted that he had the opportunity to get rid of the things that the
jury had seen but had not. He acknowledged that he did not learn about the allegations
involving sex toys until after they were recovered in the search. He agreed that he had
thought the masturbation activity had not been illegal and that he would not have
disposed of anything that was noncriminal.
                                           -17-
        The Defendant testified that he was introverted, played video games, and worked.
He acknowledged that he was Youko Shinryu in the Skype chat messages. Regarding a
July 9, 2013 Skype chat between himself and Tay Ferret, whom the Defendant identified
as a “furry artist and story writer,” the Defendant said their conversation about sexual
activity with children and the age of consent was the result of a story of Tay Ferret’s that
the Defendant had read. The Defendant said he had an interest in urination and had held
his urine until the last minute as a child. He said his friend with whom he had engaged in
“pee play” was named “R.” and was close to his age. The Defendant said he was age
twenty-nine. The Defendant said he had known R.’s family since the Defendant was
thirteen or fourteen. The Defendant said his mother “kind of took in” R. and R.’s two
sisters. He said he, R., and R.’s older sister “discovered the furry fandom.” The
Defendant said, “[I]t just blossomed into a whole other thing. It really shaped my life
though, I guess, you could say.” The Defendant said he had been referring to R. when he
said in the Skype chat that he had groomed someone for ten years.

       The Defendant testified that he had “been with” two people and that the last
encounter had been about five years ago. He said that when he had been younger, he had
been attracted to Digimon and Pokemon and had been less interested in boy/girl
relationships that children at school discussed.

        The Defendant denied any interest in biological animals. When asked if he was
aware of examples of his having “search[ed] biological animals for sexual gratification,”
he said he had conducted the searches to understand their anatomy. When asked about
specific search histories involving animals and sexual matters, he acknowledged that the
searches were his. He said the searches had been for understanding of anatomy and for
comparison with “any type of furry story that I was reading at the time.” He said the
stories he read described things such as creatures urinating on themselves or fellating
themselves and that being able to see an animal doing these acts was helpful in imagining
it in the context of the stories. He acknowledged a December 12, 2014 Skype chat with
Tay Ferret in which he said he loved raccoons and kangaroos and found their genital
configuration “sexy.” He said the stories had animals of this type in them but that the
animals in the stories were sentient, not feral. He said he would not “do anything with a
feral animal.” He said his remark in the Skype chat about enjoying a kangaroo urinating
on him was merely internet discussion and not activity in which he would engage in
reality.

     The Defendant testified that his Skype discussion with Tay Ferret about fellating
someone with a small penis and having the person urinate in his mouth was in reference
                                            -18-
to R. and had been a fantasy the Defendant had when he had been younger. He agreed
that he had said in the Skype chat he had not engaged in this conduct yet and that he had
not been referring to something that had happened years ago with R. The Defendant
acknowledged an interest in human urination. He said, “To a point, I’m not attracted to
every person that would do that. It’s not about them being a person that makes them
attractive.”

       The Defendant acknowledged that his internet searches related to human male
urination had been for sexual gratification “probably to a point.” He did not know why
he had searched for images of World War II soldiers masturbating.

        The Defendant disagreed that cell phone records showed that the Defendant was
always the one who encouraged the victim to come to the Defendant’s father’s house.
The Defendant said that the victim sometimes asked to come to the house and said the
victim’s mother sometimes dropped off the victim. The Defendant could not explain why
his cell phone and Facebook messages did not contain any messages in which the victim
asked to come to the house.

       After receiving the evidence, the jury found the Defendant guilty of the charged
offenses of two counts of aggravated sexual battery, two counts of soliciting sexual
exploitation of a minor, one count of exploitation of a minor by displaying sex acts, and
two counts of rape of a child. After a sentencing hearing, the trial court imposed an
effective eighty-one-year sentence. This appeal followed.

                                        I & II
                           Sufficiency of the Evidence and
                                 Election of Offenses

       The Defendant contends that although the “direct and circumstantial evidence is
overwhelming,” the evidence does not support convictions of the incidents elected by the
State. He also argues that, to the extent his testimony and the victim’s testimony
conflicted, the Defendant’s testimony was credible and was corroborated by other
evidence. With respect to the aggravated sexual battery convictions, the Defendant
contends in a related issue that the election of offenses was inadequate. The State
contends that the evidence is sufficient to support all of the convictions and that its
election of the offenses was adequate relative to the aggravated sexual battery counts.
We conclude that the evidence is sufficient to support all of the convictions and that,
although the elections as to the two counts of aggravated sexual battery were inadequate,
the errors were harmless.
                                          -19-
        In determining the sufficiency of the evidence, the standard of review 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); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State
v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

        “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’“ State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009))

       When evidence is presented of multiple offenses that would fit the allegations of
the charge, the State must elect the particular offense for which a conviction is sought,
and the trial court must instruct the jury as to the need for jury unanimity regarding the
finding of the particular offense elected. See, e.g., State v. Brown, 762 S.W.2d 135, 137
(Tenn. 1988); State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997). “The purpose of
election is to ensure that each juror is considering the same occurrence. If the
prosecution cannot identify an event for which to ask [for] a conviction, then the court
cannot be assured of a unanimous decision.” State v. Shelton, 851 S.W.2d 134, 138
(Tenn. 1993).

       This election requirement . . . ensures that a defendant is able to prepare for
       and make a defense for a specific charge. Second, election protects a
       defendant against double jeopardy by prohibiting retrial on the same
       specific charge. Third, it enables the trial court and the appellate courts to
       review the legal sufficiency of the evidence. The most important reason for
       the election requirement, however, is that it ensures that the jurors
       deliberate over and render a verdict on the same offense.




                                            -20-
State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000). The critical reason, however, for the
election is to protect a defendant against “patchwork verdicts.” Shelton, 851 S.W.2d at
137.

              [T]he election requirement has been applied almost exclusively in
       the sex crimes context, and specifically, when the defendant is alleged to
       have committed a series of sexual acts over a lengthy period of time against
       young children who are unable to identify the exact date on which any one
       act was perpetrated.

State v. Johnson, 53 S.W.3d 628, 631 (Tenn. 2001) (citing State v. Brown, 992 S.W.2d
389 (Tenn. 1999)). “[T]he State may introduce evidence of sex crimes allegedly
committed against the victim during the time frame charged in the indictment, but, at the
close of the proof, the State must elect the facts upon which it is relying for conviction.”
Id. (citation omitted). “If a jury is allowed to convict without specific evidence
supporting the election, then the election is superficial and meaningless.” State v. Johnny
Lee Hines, No. 01C01-9709-CC-00405, 1999 WL 33107, at *4 (Tenn. Crim. App. Jan.
27, 1999). “The offense must be proven in accordance with the election, i.e., to have
occurred on [the elected] date and under [the] circumstances.” State v. Marvin D. Nance,
No. E2005-01623-CCA-R3-CD, 2007 WL 551317, at *6 (Tenn. Crim. App. Feb. 23,
2007) (citing Johnny Lee Hines, 1999 WL 33107, at *6), perm. app. denied (Tenn. May
14, 2007). Relative to an election of offense,

       [T]he standard for sufficiency of the evidence applies to the designation of
       offenses as though it were an element of the offenses. Not only must the
       state’s election identify and distinguish offenses sufficiently to allow the
       trier of fact to render discrete and unanimous verdicts on each, the state
       must . . . support this election with evidence sufficient for a reasonable trier
       of fact to find that the offenses occurred as elected beyond a reasonable
       doubt.

Johnny Lee Hines, 1999 WL 33107, at *4.

A.     Rape of a Child

       “Rape of a child is the unlawful sexual penetration of a victim by the defendant or
the defendant by a victim, if the victim is more than three (3) years of age but less than
thirteen (13) years of age.” T.C.A. § 39-13-522. The State elected the following
instances of rape of a child as the bases for prosecution:
                                            -21-
       Count 6: The Defendant performed oral sex on the victim in the computer
       room.

       Count 7: The Defendant pushed the victim down on the futon, applied
       lubricant to the victim’s penis, and placed the victim’s penis in the
       Defendant’s anus.

       The Defendant has not raised any specific argument relative to the adequacy of the
election relative to the rape of a child counts. We decline to speculate in the absence of
an argument.

        With regard to Count 6, the victim testified that he and the Defendant had been in
the computer room with the Defendant manually masturbating the victim when the
Defendant stated he wanted to do something new. The victim said the Defendant bent
down and placed the victim’s erect penis in the Defendant’s mouth. The undisputed
evidence showed that the victim was older than age three and younger than age thirteen
when these events occurred. This evidence, viewed in the light most favorable to the
State, is sufficient to support the conviction in Count 6.

        With regard to Count 7, the victim described an incident in which the Defendant
pushed the victim onto the futon, applied lubricant to the victim’s penis, got on top of the
victim, and placed the victim’s penis inside the Defendant’s anus. The evidence showed
that the victim was older than age three and younger than age thirteen when this occurred.
In the forensic interview, which was received as substantive evidence, the victim stated
that about ten acts of anal penetration occurred on the futon and described incidents
consistent with the one he recounted in his trial testimony. Viewed in the light most
favorable to the State, the evidence is sufficient to support the conviction in Count 7.

B.     Aggravated Sexual Battery

      “Aggravated sexual battery is unlawful sexual contact with a victim by the
defendant or the defendant by a victim . . . [who is] less than thirteen (13) years of age.”
Id. § 39-13-504(a)(4). The State elected the following instances as the bases for
prosecution:

       Count 1: The Defendant placed lubricant in his hand and rubbed the
       victim’s penis.



                                           -22-
       Count 2: The Defendant placed his hand around the victim’s penis and
       had the victim urinate in the Defendant’s mouth.

       The Defendant contends that the evidence shows that Counts 1 and 2 were
“generic evidence cases” subject to the guidelines of State v. Qualls, 482 S.W.3 1 (Tenn.
2016). When the State relies on generic evidence, whereby a defendant has abused a
victim over a period of time and the victim cannot practically recall or recount specific
incidents or dates for an offense, the State is not required to elect specific act or incident
as the basis for each charge. Id. at 16. In such a case, the trial court must instruct the
jury that in order to find the defendant guilty, it must find beyond a reasonable doubt that
the State proved that all of the acts described by the victim occurred. Id. at 17.

        Relative to Count 1, the victim testified that the second encounter with the
Defendant occurred in the computer room. The State argues that the evidence is
sufficient to show the Defendant’s guilt of Count 1 based upon the incident in which the
victim said the Defendant was masturbating himself while playing a computer game. The
victim said that the Defendant ejaculated, that the Defendant made the victim sit in a
chair in front of the Defendant, that the Defendant placed his arms around the victim, and
that the Defendant masturbated the victim. The State is correct that this evidence is
sufficient to support a conviction of aggravated sexual battery.

       However, error exists relative to the State’s election for this count. First, the State
elected an incident in which lubricant was used, but the incident the State cites on appeal
to support the conviction did not involve evidence related to lubricant. In addition, the
record reflects evidence of multiple incidents of aggravated sexual battery involving the
use of lubricant. The victim testified that he and the Defendant were in the computer
room and that the Defendant was masturbating the victim with the Defendant’s hand and
that the Defendant went on to perform oral sex on the victim. In the forensic interview,
the victim stated that the Defendant masturbated the victim by grabbing the victim’s
penis and “yanking it.” The victim also stated in the forensic interview that during the
showers the Defendant took with him, the Defendant brought lubricant into the shower,
applied it to the Defendant’s hand, and rubbed the victim’s penis. Thus, evidence existed
of multiple aggravated sexual battery incidents in which the Defendant placed lubricant
in his hand and rubbed the victim’s penis. As such, the State’s election did not
adequately identify a specific act or incident which formed the basis of the charge.

       The record reflects that the trial court considered the State’s election of the offense
or act which comprised Count 1 to be adequate. In considering the issue, the court said,
“[D]o we have specific allegations [sufficient] enough to apprise [the Defendant] of what
the allegations are and requiring – require that he be given a fair trial under our

                                            -23-
constitution, not to be subject to double jeopardy, and I think the answer is yes.” The
court stated it had considered Qualls and said, “[H]ere we don’t have indistinguishable
acts. We’ve got specific information as to address, location within that address, within
that house, specific conduct occurring and alleging within this election of offenses that
would apprise [the Defendant] of what the allegations are.” The court observed that the
defense had acknowledged that the Defendant had done “horrible bad things” with the
victim “but not criminal in nature” and that the defense had not attempted to show that
the Defendant had been elsewhere at the time the offenses occurred. Although the jury
instructions are not in the appellate record, the generic evidence instruction prescribed by
Qualls was discussed by the attorneys and the court, and it is apparent from the record
that the court did not intend to give the instruction because it concluded the election
adequately identified discreet offenses. See Qualls, 482 S.W.3d at 17; see also T.P.I.—
Crim. 42.25(a) (pattern jury instruction). From this, we conclude that either the State
should have provided an adequate election or, if it chose to proceed upon generic
evidence, that the court should have given the generic evidence instruction.

       Because the right to an adequate election is a fundamental constitutional right, we
must conduct a constitutional harmless error analysis. Qualls, 482 S.W.3d at 17-18. In
that regard, the Defendant is entitled to relief unless the error was harmless beyond a
reasonable doubt. Id. at 18 (citing State v. Climer, 400 S.W.3d 537, 569 (Tenn. 2013)).
In making this determination, the reviewing court must determine “whether it appears
beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.” Climer, 300 S.W.3d at 569.

       As the trial court observed, the Defendant did not rely upon an alibi defense. He
acknowledged that he had advised the victim about sexual matters which included the
mechanics of male masturbation, had exhibited pornographic images to the victim, had
provided lubricant and sex toys and had allowed the victim to use them, had masturbated
in the victim’s presence, had been present when the victim masturbated, and had the
victim urinate on the Defendant for the Defendant’s sexual pleasure. The Defendant
denied, however, that he had any sexual contact or sexual intercourse with the victim.
The victim’s testimony and the Defendant’s testimony stood in direct opposition on the
questions of sexual contact and sexual intercourse. The jury found the Defendant guilty
as charged in the indictment of four counts – two of rape of child and two of aggravated
sexual battery – involving sexual contact or sexual intercourse. By its verdict, the jury
indicated it credited the victim’s testimony and rejected the Defendant’s testimony that
his actions with the victim did not include sexual contact and sexual intercourse. We
conclude that, had the generic evidence instruction been given, the jury would have found
that all of the incidents involving the Defendant’s applying lubricant to his hand and
rubbing the victim’s penis occurred and that the jury would have returned a guilty

                                           -24-
verdict. As such, we conclude that the error was harmless beyond a reasonable doubt.
The Defendant is not entitled to relief on this basis.

       Turning to Count 2, the State argues that the evidence is sufficient to support the
conviction based upon the victim’s testimony that, after the incident in which the
Defendant masturbated while playing a computer game, the Defendant had the victim sit
in a chair in front of the Defendant and masturbated the victim, the Defendant placed his
hand on the victim’s penis, placed the victim’s penis in the Defendant’s mouth, and had
the victim urinate in the Defendant’s mouth. Although the Defendant denied he ever had
the victim urinate in the Defendant’s mouth, the victim testified otherwise. The jury’s
verdict indicates that it credited the victim’s testimony and rejected that of the Defendant.

        With regard to the election for Count 2, the evidence adduced at the trial
established the incident described in the previous paragraph, as well as the victim’s
testimony that the Defendant made the victim urinate in the Defendant’s mouth on
multiple occasions. The victim testified that whenever he said he was going to the
bathroom, the Defendant would ask if he had to urinate, and that if the victim said yes,
the Defendant would make the victim “pee on his face and . . . in his mouth and stuff.”
Thus, the evidence showed multiple incidents involving conduct which conformed with
the State’s election relative to Count 2. As with Count 1, the proper course was for the
State to have provided an election which specifically described a discreet occurrence or
for the trial court to have given the jury instruction prescribed by Qualls.

        As with Count 1, the jury was faced with a choice of whether to believe the victim,
who testified that the Defendant touched the victim’s penis with the Defendant’s hand
and mouth for the purpose of sexual gratification, or to believe the Defendant, who
testified that no sexual contact occurred. No alibi defense was raised. The jury’s verdicts
relative to the two rape of a child counts indicate that it credited the victim’s testimony
and rejected the Defendant’s testimony. Due to the nature of the conflicts in the
evidence, the jury’s verdict as to Count 2, although rendered in a situation involving
either an inadequate election or an inadequate jury instruction depending upon the route
chosen by the State, supports a conclusion that the jury rejected the Defendant’s blanket
claim of no sexual contact. We conclude that if the generic evidence instruction had been
given, the jury would have found that all of the incidents involving the Defendant’s
placing his hand around the victim’s penis and having the victim urinate in the
Defendant’s mouth occurred and that the jury would have returned a guilty verdict. As
such, we conclude that the error was harmless beyond a reasonable doubt. The
Defendant is not entitled to relief on this basis.



                                            -25-
C.      Soliciting Sexual Exploitation of a Minor

        The Defendant was convicted of two counts of soliciting sexual exploitation of a
minor. The relevant statute was amended during the time period covered by the
indictment, January 1, 2012 to December 31, 2014. Because the victim, whose birthdate
was August 22, 2002, testified that the sexual activity began when he was ten years old
and in the fifth grade and that he began fifth grade in Fall 2012, we will focus on the
statute as it existed effective July 1, 2012.3

        The relevant statute provided, in pertinent part:

        It is an offense for a person eighteen (18) years of age or older, by means of
        oral . . . communication, . . . directly or through another, to intentionally
        command, hire, persuade, induce or cause a minor to engage in simulated
        sexual activity that is patently offensive or in sexual activity, where such
        simulated sexual activity or sexual activity is observed by that person or by
        another.

T.C.A. § 39-13-529(a) (Supp. 2012) (subsequently amended).

       The State elected the following conduct for the counts related to solicitation of
sexual exploitation of a minor:

        Count 3:      The Defendant made the victim masturbate with the green
        silicone dragon sex toy.

        Count 4:      The Defendant made the victim masturbate with the pink and
        blue silicone dragon sex toy.

       The Defendant argues that, although the State’s evidence showed that the
Defendant used sex toys on the victim, the victim did not testify that he used the green or
pink and blue toys on himself. The record reflects otherwise. The victim testified about
the Defendant’s having used both toys to masturbate the victim. However, the Defendant

3
  We note that the only changes between the 2011 version of subsection (a) of Code section 39-13-529
and the 2012 version involved rearranging words within the statute. The phrase “simulated sexual
activity that is patently offensive or in sexual activity” had previously been “sexual activity or simulated
sexual activity that is patently offensive.” Also, the subsequent phrase “simulated sexual activity or
sexual activity” in the 2012 version had previously been “sexual activity or simulated sexual activity.”
Before 2012, the statute had contained a reference to another statute which defined the term “patently
offensive,” which was deleted from the 2012 version.
                                                   -26-
has overlooked his own testimony. When asked which toys the victim used on himself,
the Defendant said, “The green one – the lime green one, and the pink and blue one.”
The evidence showed, as well, that the Defendant provided the lubricant and toys,
instructed the victim in their use in order to relieve an erection, was present when the
victim masturbated, and saw the victim masturbating. The evidence is sufficient to
support the convictions. The Defendant has not raised a specific election issue relative to
Counts 3 or 4, and we decline to speculate in the absence of an argument.

D.    Exploitation by Displaying Sexual Acts to a Minor

       The relevant statute was amended during the time period covered by the
indictment. As with Counts 3 and 4, we will focus on the statute as it existed after the
amendment effective July 1, 2012. The statute provided:

      (b)    It is unlawful for any person eighteen (18) years of age or older;
      directly or by means of electronic communication, to intentionally:

      (1)     Engage in simulated sexual activity that is patently offensive or in
      sexual activity for the purpose of having the minor view the simulated
      sexual activity or sexual activity, including circumstances where the minor
      is in the presence of the person, or where the minor views such activity via
      electronic communication, including electronic mail, Internet service and
      webcam communications[.]

Id. § 39-13-529(b)(1) (Supp. 2012) (subsequently amended). The State elected to
prosecute Count 5 based upon the Defendant’s masturbating himself with the green
silicone sex toy in the victim’s presence. The victim testified he witnessed the Defendant
masturbating with the green toy. The Defendant admitted that he masturbated while the
victim was present. The evidence is sufficient to support the conviction. The Defendant
has not made a specific argument relative to the adequacy of the State’s election relative
to this offense, and again, we decline to speculate in the absence of an argument.

       Because the evidence is sufficient as to each count and because the errors related
to the election of offenses related to Counts 1 and 2 were harmless beyond a reasonable
doubt, the Defendant is not entitled to relief.




                                           -27-
                                            III

                                  Denial of a Severance

       The Defendant contends that the trial court erred in denying his pretrial motion for
a severance of each count of the seven-count indictment. The State responds that the
court properly denied the motion. We agree with the State.

       Tennessee Rule of Criminal Procedure 8(b) provides the following with regard to
joinder of offenses:

       (b)    Permissive Joinder of Offenses.—Two or more offenses may be
       joined in the same indictment, presentment, or information, with each
       offense stated in a separate count, or consolidated pursuant to Rule 13, if:

              (1)    the offenses constitute parts of a common scheme or plan; or

              (2)    they are of the same or similar character.

Tennessee Rule of Criminal Procedure 14(b) provides, in pertinent part:

       (b)    Severance of Offenses.—

              (1)     Involving Permissive Joinder of Offenses.—If two or more
       offenses are joined or consolidated for trial pursuant to Rule 8(b), the court
       shall grant a severance of offenses in any of the following situations:

             (A) Before Trial.—Before trial on motion of the state or the
       defendant when the courts finds a severance appropriate to promote a fair
       determination of the defendant’s guilt or innocence of each offense.

       When considering a motion to sever, the trial court

       must conclude that: (1) the offenses are part of a common scheme or plan;
       (2) evidence of each offense is relevant to some material issue in the trial of
       all the other offenses, Tenn. R. Evid. 404(b)(2); and (3) the probative value
       of the evidence of other offenses is not outweighed by the prejudicial effect
       that admission would have on the defendant, Tenn. R. Evid. 404(b)(3);
       Spicer [v. State, 12 S.W.3d 438, 445 (Tenn. 2000).]


                                            -28-
State v. Denton, 149 S.W.3d 1, 13 (Tenn. 2004). Proof of a larger “plan or conspiracy . .
. contemplates crimes committed in furtherance of a plan that has a readily
distinguishable goal, not simply a string of similar offenses.” Id. at 15.

        If a defendant seeks a severance of offenses that have been joined in the original
indictment pursuant to Rule 8(b), the defendant has the burden to move for a severance to
and show that the criteria of Rule 14(b)(1) have been met in order to obtain a severance.
Spicer, 12 S.W.3d at 443. Permitting or denying a motion to sever is within the
discretion of the trial court. State v. Meeks, 867 S.W.2d 361, 369 (Tenn. Crim. App.
1993); see State v. Coleman, 619 S.W.2d 112, 116 (Tenn. 1981). This court reviews a
trial court’s decision to grant or to deny a motion to sever for an abuse of discretion.
State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). An abuse of discretion occurs when a
“trial court applie[s] an incorrect legal standard or reache[s] a decision against logic or
reasoning which cause[s] an injustice to the complaining party.” Denton, 149 S.W.3d at
10 (citing Spicer, 12 S.W.3d at 442).

        At the hearing, Detective Wiser testified for the State about his investigation and
the victim’s forensic interview. Detective Wiser said he arranged for and later reviewed
the forensic interview. He said the victim described the sexual conduct as having
occurred consistently over a period spanning from when the victim was age ten and in the
fifth grade until the end of 2014. Detective Wiser said the victim related that about fifty-
two incidents of abuse occurred, all taking place when the victim visited the Defendant’s
father’s house. Detective Wiser said the victim reported that the abuse occurred upstairs
in the Defendant’s bedroom, in the computer room, and in the shower, and that the
victim’s grandmother and the Defendant’s father never came upstairs. Detective Wiser
said the victim reported sexual activity “every time he took a shower over at his
grandmother’s house.” Detective Wiser said the victim reported that the Defendant “had
been using silicone dragons with him.” Detective Wiser acknowledged that the silicone
toys were not used every time. Detective Wiser said the victim said the Defendant
applied lubricant to the Defendant’s fingers, rubbed the lubricant inside a silicone toy,
placed the toy over the Defendant’s penis, and “ram[med] it.” Detective Wiser said the
victim described a stuffed animal with zippers, which the Defendant used with the
silicone toys for “ramming it over his penis.” Detective Wiser said the victim reported
that the Defendant made the victim use the silicone toys on the victim. Detective Wiser
said the victim reported about ten incidents in which the Defendant made the victim
anally penetrate the Defendant. Detective Wiser said the victim stated that the Defendant
“would try and suck it” and that the victim came up with excuses such as claiming the
Defendant’s beard was scratching the victim’s legs in order to get the Defendant to stop.
Detective Wiser said the victim reported that the Defendant applied lubricant to the
Defendant’s hand and “would grab his penis and start yanking it . . . with the lube on his

                                           -29-
hand and with the toys.” Detective Wiser said the victim also reported that the Defendant
made the victim manually masturbate the Defendant. Detective Wiser said the victim
reported that the Defendant showed him computer images of naked Pokemon-type
characters. Detective Wiser said he executed a search warrant and recovered items which
corroborated the victim’s account in the forensic interview. The items included sex toys
and lubricants described by the victim and a computer.

       The State argued at the hearing that the case involved a single victim having been
abused by the Defendant over a period of time. The State posited that this showed a
common scheme or plan to abuse the victim and that the evidence of all counts was
admissible at the trial of any single count, provided the State made an election at the
close of its case-in-chief regarding the specific incident upon which it sought a
conviction. The State argued, therefore, that if the court severed each count, the evidence
at each trial “would essentially be the same.” The State argued, as well, that joinder of
the offenses promoted judicial economy.

       The defense argued that the State had not shown a distinctive design constituting
the existence of a signature crime. The defense noted that the crimes were alleged to
have occurred over a three-year period and were “not the same transaction” and that
caselaw did not support a conclusion that sexual gratification constituted a continuing
plan or conspiracy. The defense also argued that evidence of the other offenses was not
materially relevant to show motive, identity, or absence of mistake or accident. The
defense claimed that the “spill-over effect” of trying the counts together, particularly the
counts of rape of a child and aggravated sexual battery, created more prejudice than
probative value. The defense posited that the jury would “lump it all together” and
convict the Defendant of all counts. The defense argued that, notwithstanding the State’s
argument about judicial economy, the Defendant’s right to a fair trial was paramount.

       In a written order denying the motion, the trial court found that the evidence
demonstrated a common scheme or plan which linked the charged offenses, noting that
the Defendant used his connection with the victim through the Defendant’s father and the
victim’s grandmother to commit the offenses, that the offenses occurred at the
Defendant’s father’s house, that the offenses involved similar sex toys, and that they
occurred in the same area of the house. The court found, as well, that evidence of each
offense would be admissible in the trial of all the other offenses pursuant to State v.
Rickman, 876 S.W.2d 824, 828 (Tenn. 1994) and that the probative value of the evidence
of each offense was not outweighed by the danger of unfair prejudice.

       On appeal, the Defendant does not challenge the trial court’s findings that the
offenses are part of a common scheme or plan or that evidence of each offense is relevant

                                           -30-
to some material issue in the trial of all the other offenses. Instead, he argues that the
court erred in denying the motion because the probative value of the evidence of
additional offenses was outweighed by the danger of unfair prejudice. He argues that the
he was prejudiced by the jury’s having heard evidence of numerous offenses occurring
over an approximate two-year period and involving different types of sexual activity,
circumstances, and locations. He argues, as well, that because he admitted “having some
culpability as to some counts,” the risk of unfair prejudice from evidence of multiple
crimes was heightened. He claims that his “strange sexual fetishes with anime
pornography, various sexual toys[,] and urophilia” all but foreclosed the jury’s ability to
consider each count separately.

       The evidence at the hearing showed that the Defendant engaged in a continuing
course of sexual abuse of the victim when the victim visited the Defendant’s father’s
house. Although the abuse involved different sexual acts and conduct, similarities
existed among the offenses in that they involved the same victim and took place in the
Defendant’s upstairs living area, especially the shower, of the Defendant’s father’s house.

        The Defendant admitted limited sexual conduct in the victim’s presence, which
included self-masturbation and witnessing the victim masturbating with toys and
lubricant provided by the Defendant. The trial court limited the admissibility of the
pornographic and fetish evidence to representative excerpts. The evidence of the
numerous offenses and their similarities was highly probative of the Defendant’s
concerted effort to abuse the victim over a period of years, thereby establishing a
common scheme or plan. See Tenn. R. Evid. 404(b). The Defendant’s abuse of the
victim conformed, in large part, to his sexual fetishes related to animated fantasy
creatures and urination, which were relevant to his motive. See id. We conclude that the
trial court did not err in determining that the probative value of the evidence of additional
offenses outweighed the danger of unfair prejudice.

       In reaching our conclusion, we have considered the Defendant’s citations to Spicer
and State v. Hoyt, 928 S.W.2d 935 (Tenn. Crim. App. 1995), overruled on other grounds
by Spicer, 12 S.W.3d at 447. Both Spicer and Hoyt involved a defendant charged with
sexual abuse of multiple victims occurring in an extended time period specified in the
indictment. In Hoyt, the defendant was charged with one count of aggravated rape of
each of two victims and one count of sexual battery of a third victim. With regard to the
two aggravated rape counts, this court said that, notwithstanding the evidence of a
common scheme or plan and the relevance of the evidence of each offense to each other
as the two victims, the evidence of multiple acts of abuse as to each victim would be
unfairly prejudicial relative to the charge related to the other and that the probative value
was outweighed by the danger of unfair prejudice. Hoyt, 928 S.W.2d at 945. This court

                                            -31-
concluded that the trial court erred in failing to sever the charges for each of these two
victims. Id. The Hoyt court also held that the alleged aggravated sexual battery of the
third victim was not part of the common scheme or plan in the alleged abuse of the other
two victims and that the trial court’s failure to sever the charge related to the third victim
was error. Id.

       In Spicer, the defendant was charged with sexual offenses in two indictments
charging that the crimes occurred over a period of time. Each indictment pertained to a
different victim. Spicer, 12 S.W.3d at 442. The State sought consolidation of the
offenses but failed to offer evidence of a common scheme or plan at the consolidation
hearing. Id. at 445-47. The supreme court held that, in the absence of proof to support
the State’s motion, the trial court abused its discretion in consolidating the offenses. Id.
at 447. The supreme court observed, “[J]oinder of open-dated indictments involving
multiple victims is usually prejudicial because State v. Rickman seems to allow the jury
to hear evidence of countless sexual episodes from each of the different victims.” Id. at
448.

      We are not compelled by Hoyt or Spicer, both of which involved multiple victims.
The concerns of unfair prejudice present in these cases are not analogous to the
Defendant’s case, involving a single victim and strong probative value of the other acts
evidence. The trial court did not abuse its discretion in denying the motion to sever. The
Defendant is not entitled to relief on this basis.

                                             IV

          Evidentiary Ruling Regarding the Defendant’s Internet Searches

        The Defendant contends that the trial court erred in denying his motion in limine
to exclude evidence related to his internet searches. He complains, as well, that the trial
judge, who was a successor judge in the case, erred by revisiting the issue after the
original judge had ruled on the motion. The State contends that the court did not abuse
its discretion. We agree with the State.

       Evidence is relevant and generally admissible when it has “any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401,
402. Questions regarding the admissibility and relevance of evidence generally lie within
the discretion of the trial court, and the appellate courts will not “interfere with the
exercise of that discretion unless a clear abuse appears on the face of the record.” State v.


                                            -32-
Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141
(Tenn. 2007)).

      A trial court abuses 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.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006). Relevant evidence,
however, “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403.

       The record reflects that the Defendant filed a pretrial motion in limine seeking
exclusion of Detective Gish’s testimony about the Defendant’s computer search terms
and chat messages relative to “sex and children.” The Defendant argued that the searches
and chat messages were irrelevant because they did not provide evidence of the
commission of a crime and that they were unfairly prejudicial, confused the issues, and
wasted time.

      Judge J. Randall Wyatt, Jr., the original trial judge, conducted a hearing on the
motion. The trial court summarized the testimony at the hearing:

       Detective Gish testified that he found thousands upon thousands of files of
       anime, or cartoon, pornography on the Defendant’s digital drives. He
       testified that he created a sample file that contained a variety of different
       types of anime pornography he found. He testified that he could not
       remember exactly from where each item in the sample file was recovered.
       He testified that if a file had been saved on the drive at the time it was taken
       into police custody, he could tell when that file was last accessed. He
       testified that if a file had been deleted, he could not tell when that file was
       last accessed. He testified that he also found a number of pornographic
       search terms in the Defendant’s browser history as well. He testified that
       he could not see a time stamp for those search terms for which the browser
       history had been deleted. He finally testified that there were also chat
       messages discussing the legal and moral theory of having sex with a child.
       He testified that he believes the chat messages are from sometime in 2014.
       He testified that there are timestamps on those messages. He testified that
       none of the material he found was illegal, but that he did find it vile and
       offensive.



                                            -33-
        The trial court recognized three categories of evidence in question: anime
pornography, pornographic search terms, and chat messages that discussed having sex
with a child. Relative to anime pornography, the court recognized the probative value of
the evidence in light of the victim’s statement in the forensic interview “that the
Defendant showed him something like ‘Pokemon’” pornography. The court found that
corroboration of the victim’s testimony was highly probative and relevant to the State’s
case and that the evidence could be “very prejudicial” to the defense. The court ruled
that a limited amount of the anime pornography files was admissible to corroborate the
victim’s testimony but that any probative value of evidence regarding the number of files
containing pornography was substantially outweighed by the danger of unfair prejudice.
Regarding the pornographic search terms, the court found that evidence of search queries
containing the word “Pokemon” were relevant as corroborative of the victim’s testimony
and that the relevance was not outweighed by the danger of unfair prejudice. The court
found, however, that the probative value of evidence of the Defendant’s general search
terms involving pornography, including searches for bestiality, were substantially
outweighed by the danger of unfair prejudice. Finally, regarding the chat messages that
discussed having sex with a child, the court deferred its ruling until a jury-out hearing
could be had at the trial. The court found that the evidence appeared to be relevant and
highly probative but that the court needed the context that it “could gain from seeing how
the trial has proceeded before making a final ruling[.]”

       Judge Wyatt retired after he had ruled on the motion in limine, and the case was
assigned to Judge Steve R. Dozier, who presided at the trial. After the victim testified
during the State’s case-in-chief at the trial, Judge Dozier conducted a jury-out hearing
regarding the admissibility of evidence of the chat messages and internet searches.

       Detective Gish testified at the jury-out hearing about Skype chat messages from
the Defendant’s computer between the Defendant, who used the name Youko Shinryu,
and an individual who used the name Tay Ferret. Detective Gish also testified about
Skype chat messages from the Defendant’s cell phone between the Defendant and an
individual who used the name Gray Hacks.

       Detective Gish testified about July 2013 Skype chat messages between the
Defendant and Tay Ferret that discussed having sex with a child if the laws were different
and the age of consent laws in other jurisdictions.

      Detective Gish also testified about December 3, 2014 Skype chat messages
between the Defendant and Tay Ferret about the Defendant’s having found a childhood
drawing of a dragon with a penis and “a puddle.” The Defendant asked if Tay Ferret was
“planning on adding anything pee related” to some drawings.

                                          -34-
       Detective Gish testified that in a December 12, 2014 Skype chat, the Defendant
told Tay Ferret that he had “participated in the naughty dragon [P]atreon project” and had
been disappointed that “Nars didn’t enter anything.” The Defendant stated he had a book
of dragons “on the way,” and he responded “Yep,” when asked if they were “sexy
dragons.” In the December 12 chat, the Defendant stated, “[O]ne of my goals for the past
year was to be able to drink my own pee and now I can do it straight from the tap,” after
which the Defendant and Tay Ferret discussed how to accomplish this act. The
Defendant also stated to Tay Ferret that he liked the idea of performing oral sex on
someone who had to urinate and having them lose bladder control. The Defendant said
he imagined this happening with someone “three inches or smaller grapping my head and
pushing it all the way in[.]” The Defendant asked if Tay Ferret had any friends who
“indulge in pee play” with Tay Ferret. The Defendant stated he had such a friend but
“had to groom him for ten years.” The Defendant stated he and this friend had engaged
in “blow jobs, anal, and hand jobs.” The Defendant said the friend “[c]an’t give blow
jobs and isn’t that great at hand jobs” and did not like anal sex due to bleeding. The
Defendant also discussed in the chat a video of a raccoon masturbating and mentioned
other animals engaged in urination or orgasm.

       The State directed the trial court to a document containing a lengthy Skype chat
discussion between the Defendant and Tay Ferret regarding urination and how the
Defendant viewed it as being sexually pleasurable. The State also directed the court to a
document containing Skype chats on an unspecified date between the Defendant and Tay
Ferret, in which they discuss urination and the perils involved in the legal system. The
Defendant stated in the same conversation that seeing a dog urinate on itself was “sexy.”

       Detective Gish also recounted November 27, 2014 chat messages from the
Defendant’s cell phone between the Defendant and an individual who used the name
Gray Hacks, in which the Defendant asked whether Gray Hacks would engage in “wild
and crazy gay sex” involving specified sexual positions. Detective Gish said that in
December 11, 2014 chat messages between the Defendant and Gray Hacks, the
Defendant asked if Gray Hacks could come over after work and stated the Defendant’s
desire for Gray Hacks to “pee for” the Defendant. The Defendant stated he would
appreciate Gray Hacks’s “staying well hydrated, to the point you are peeing clear and
often.” The Defendant also stated that being well hydrated caused a person to have more
ejaculate, for orgasms to last longer, and for the ejaculate to taste better. The Defendant
also said that a person needed to ejaculate “when you start the water thing” for “cleaning
everything out” and making the person feel better.



                                           -35-
       The State sought a ruling allowing it to introduce evidence of some of the
Defendant’s internet searches which did not involve pornographic Pokemon images.
When Judge Dozier asked why the State had not presented this evidence to Judge Wyatt
at the pretrial hearing, the prosecutor stated that he did not know and that “none of us
were present for that hearing.” The State then offered documents showing the following
April 2013 internet searches recovered from the Defendant’s computer:

        1.      If your child asks, would it be okay to masturbate, what would you
        say?

        2.      Would you allow your child to walk around the house naked?

The State also offered documents reflecting that the Defendant’s computer had been used
in January and February 2015 for the Defendant’s name, the Tennessee penalty for a
conviction of child abuse, the Tennessee penalty for a conviction of child molestation,
and the term “sealed indictment.” The State offered another document reflecting a
September 26, 2013 search for “Bad Dragon Bruce with Cum Tube.” The State offered a
document reflecting a March 11, 2013 search, “Can boiling a silicone toy damage it?”
The State offered a document reflecting a March 7, 2013 search, “I was tickled until I
peed as a kid.”

       The trial court ruled that the internet search terms were admissible. The court
observed that the weight to be given the evidence was a matter for the jury’s
consideration and found that the probative value of the evidence was not outweighed by
the danger of unfair prejudice pursuant to Tennessee Rule of Evidence 403.

        Regarding the Skype chat messages between the Defendant and Gray Hacks, the
trial court found that the discussions of urinary tract infections4 and sexual positions were
not relevant, were unfairly prejudicial, and were inadmissible unless the Defendant’s
testimony made them relevant. The court ruled that the discussion of the Defendant’s
childhood dragon drawing was admissible because it was relevant to “an animal that he
later obtains” that had been described by the victim as half human and half animal. The
court ruled that the discussion “about animals and what they can and can’t do” was
irrelevant and therefore inadmissible. The court found that the discussion of books and
sexy dragons was relevant and that the probative value was not outweighed by the danger


4
  The documents containing the cell phone chat messages were not made exhibits at the hearing.
Detective Gish did not testify about any discussion in the messages of urinary tract infections. However,
the State submitted documents for the court’s consideration without having Detective Gish testify as to
their complete contents.
                                                  -36-
of unfair prejudice. The court ruled that discussion of drinking water before “pee play”
was relevant and admissible. The court also ruled that the discussion of the Defendant’s
having groomed an individual for sexual contact for ten years and the details of that
contact were admissible. The court found that the evidence was “highly more probative
than unfairly prejudicial.” The court found that the evidence about videos of urinating
raccoons was not relevant.

        We begin with the Defendant’s argument that Judge Dozier erred in allowing the
State to present additional evidence regarding the Defendant’s internet search history.
The Defendant claims, without citation to authority to support his argument, that the issue
was moot because Judge Wyatt had already considered and ruled upon the admissibility
of the Defendant’s internet search terms. The Defendant claims that the information had
been presented previously to Judge Wyatt, who “deemed [it] prejudicial.” As we have
stated, the record of the hearing conducted by Judge Wyatt is not in the record. See
T.R.A.P. 24(b) (stating that the appellant has the obligation to have a transcript of the
evidence or proceedings prepared); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)
(stating that the Defendant has the burden of preparing a record which presents a fair,
accurate, and complete account of what transpired in the trial court regarding the
appellate issues.) Judge Wyatt’s order reflects that he considered the admissibility of
“pornographic search terms” and ruled that they were inadmissible. Nothing in the
record before us reflects that the internet search terms considered by Judge Dozier had
been considered previously at the hearing conducted by Judge Wyatt.

       In any event, the Defendant has not identified any basis upon which he was
prejudiced as a result of the State’s belated request to offer evidence of the additional
internet searches. Interlocutory orders of a trial court are subject to reconsideration
before the litigation is complete, including the power of a successor judge to reverse the
order of the previous judge. State v. Gary R. Owens, No. 1248, 1990 WL 5259, at *2
(Tenn. Crim. App. Jan. 25, 1990) (order on pet. for reh’g), perm. app. denied (Tenn. July
2, 1990).

       The Defendant argues generally that the probative value of evidence of the
searches was not outweighed by the potential for unfair prejudice. He claims that the
searches did not contradict his testimony and that he did not deny having conducted the
internet searches. He argues that the searches related to tickling and urination, boiling a
silicone toy, talking to a child about masturbation, child nudity at home, and “Bad
Dragon Bruce” did not involve the sexual assault of the victim and were highly
prejudicial. Regarding the January and February 2015 searches for the Defendant’s
name, “sealed indictment,” and Tennessee criminal penalties, the Defendant argues that
no proof shows these searches were conducted before the victim made the allegations and

                                           -37-
that the evidence shows they were conducted after the Defendant learned of the
allegations.

        The record reflects that Judge Dozier conducted the appropriate inquiry by
weighing the probative value of the evidence of the searches against the danger of unfair
prejudice to the Defendant. The searches related to tickling and urination, boiling a
silicone toy, talking to a child about masturbation, child nudity at home, and “Bad
Dragon Bruce” were relevant because the evidence showed that the Defendant had a
fetish involving dragons and fantasy creatures, that the Defendant made dragon silicone
sex toys available for the victim’s use, that the Defendant used the toys on the victim and
himself in the victim’s presence, that the Defendant talked to the victim about “the birds
and the bees” after the victim’s mother declined to do it, and that the Defendant
instructed the victim regarding the mechanics of masturbation with the sex toys and
lubricants. Regarding the searches conducted after the allegations were made, they could
be considered as evidence of the Defendant’s culpability and guilty conscience. As the
trial court observed, the question was one for the jury to determine in its role as the trier
of fact. As to all of the internet searches, the record supports the trial court’s
determination that their probative value was not substantially outweighed by the danger
of unfair prejudice.

       Judge Dozier did not abuse his discretion in considering the issue of the
admissibility of these searches and in ruling that they were admissible. The Defendant is
not entitled to relief on this basis.

                                             V

                                        Sentencing

        The Defendant contends that the trial court erred in applying an enhancement
factor related to the abuse of private trust and in imposing an effective eighty-one-year
sentence. He argues that the sentence is, in effect, a life sentence which violates the state
and federal constitutions and the statutory sentencing guidelines. The State counters that
the trial court did not abuse its discretion in sentencing and that the effective sentence
presents no constitutional violation.

       This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature

                                            -38-
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103, -210; State v. Moss, 727
S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App.
1987)); see T.C.A. § 40-35-102 (2018).


        Likewise, a trial court’s application of enhancement and mitigating factors are
reviewed for an abuse of discretion with “a presumption of reasonableness to within-
range sentencing decisions that reflect a proper application of the purposes and principles
of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.

       The abuse of discretion with a presumption of reasonableness standard also
applies to the imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 859
(Tenn. 2013). A trial court has broad discretion in determining whether to impose
consecutive service. Id. A trial court may impose consecutive sentencing if it finds by a
preponderance of the evidence that one criterion is satisfied in Tennessee Code
Annotated section 40-35-115(b)(1)-(7) (2019). In determining whether to impose
consecutive sentences, though, a trial court must ensure the sentence is “no greater than
that deserved for the offense committed” and is “the least severe measure necessary to
achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-103(2), (4)
(2019); see State v. Desirey, 909 S.W.2d 20, 33 (Tenn. Crim. App. 1995).

       At the sentencing hearing, the victim testified that the Defendant’s sexual abuse of
him had been stressful and was something the victim thought about daily. The victim
said he had missed school and tests but that he had been able to maintain good grades.
He stated that, as a result of the abuse, he had been worried about and avoided talking to
adults he did not know. When asked if the Defendant had been someone who had
authority over him or to whom the victim looked upon as a caregiver, the victim said,
“No, not really.” He said he thought they had been friends. The victim said that he
would have to think about the abuse for the rest of his life and that he would like the
Defendant to receive the maximum sentences in order for the Defendant to have to think
about the abuse for the rest of the Defendant’s life, as well.

                                           -39-
       The presentence report was received as an exhibit and reflected that the Defendant
was age thirty at the time of sentencing. He was a high school graduate, had completed
some college, and had no prior criminal history. He reported good physical and mental
health. He had been employed by the same employer from 2008 until his arrest in 2015
and had been unable to find work since then. The risk assessment evaluation assessed
him as being at moderate risk for reoffending. A supplement to the presentence report
stated that the Defendant had been treated by a mental health treatment center from
March 2005 until September 30, 2014. His primary diagnosis at the time of discharge
was “Major Depressive Disorder, Recurrent Episode, Severe Degree, no mention of
psychotic behavior,” and his secondary diagnosis was “Attention Deficit Disorder of
childhood with hyperactivity.”

       In its written order sentencing the Defendant, the trial court recited its
consideration of the relevant statutory sentencing principles and considerations. It found
that the Defendant had abused a position of public or private trust in the commission of
the offenses and enhanced the sentences on this basis. See T.C.A. § 40-35-114(14)
(2019). In support of this determination, the court made the following findings:

       [T]he Defendant knew [the victim] his entire life. Additionally, the
       Defendant was approximately fifteen (15) years older than [the victim].
       The Defendant lived with his father and [the victim’s] grandmother. [The
       victim] stayed with his grandmother every other weekend. The court finds
       the Defendant stood in [a] relationship to [the victim] that promoted
       confidence.

The court found that no mitigating factors applied. See id.§ 40-35-113 (2019).

        For the two convictions for aggravated sexual battery, the Defendant, a Range I,
standard offender, faced sentences of eight to twelve years for this Class B felony. The
court set the sentences at ten years for each offense and imposed 100% service of the
sentences. See id. § 40-35-501(i)(1), (i)(2)(H) (mandating 100% service for convictions
of aggravated sexual battery) (Supps. 2012, 2013, 2014). For the convictions for
solicitation of sexual exploitation of a minor, the Defendant faced Range I sentences of
eight to twelve years for this Class B felony, and the court imposed ten-year sentences.
For the conviction for displaying sex acts to a minor, the Defendant faced a Range I
sentence of three to six years for this Class C felony. The court imposed a five-year
sentence. For the two rape of a child convictions, the Defendant, classified as a Range II
offender for these offenses pursuant to Code section 40-35-522(b)(2)(A), faced sentences
of twenty-five to forty years for this Class A felony. The court imposed twenty-eight-
year sentences, which were to be served at 100%. See id. § 40-35-501(i)(1)(I).

                                           -40-
      The trial court found that the Defendant qualified for consecutive sentencing
because he

       committed two or more statutory offenses involving sexual abuse of a
       minor with consideration of the aggravating circumstances arising from the
       relationship between the defendant and the victim . . . , the time span of the
       defendant’s undetected sexual activity, the nature and scope of the sexual
       acts and the extent of the residual, physical and mental damage to the
       victim[.]

Id. § 40-35-115(b)(5) (2019). In applying consecutive sentencing factor (5), the court
noted the evidence that the Defendant engaged in numerous incidents of multiple types of
sexual offenses directed toward the victim, the approximate two-year period over which
sexual abuse occurred, the Defendant’s efforts to conceal the offenses by showing the
victim a gun and threatening to kill the victim’s family, and the victim’s continued
trauma as a result of the offenses. The court found, as well, that consecutive sentencing
was appropriate to protect the public from the Defendant.

        Based upon its findings, the court imposed the two sentences for aggravated
sexual battery consecutive to each other and consecutive to each of the sentences for
displaying sex acts to a minor and rape of a child. The court ordered the two sentences
for rape of a child to be served consecutively to each other. The two sentences for
solicitation of sexual exploitation of a minor were imposed concurrently with each other
and concurrently with one of the rape of a child sentences, all yielding the effective
eighty-one-year sentence.

A.     Length of Sentences and Application of Enhancement Factor (14)

        The Defendant argues that the trial court erred in applying enhancement factor
(14), related to his abuse of private trust, to enhance his sentences. The trial court made
detailed findings about the relationship between the Defendant and the victim, the nature
of the Defendant’s living arrangements, the victim’s regular visits to the household to see
a relative, and the age disparity between the Defendant and the victim. In addition, the
victim’s grandmother testified at the trial about the Defendant’s paying an unusual
amount of attention to the victim, buying things for the victim, communicating with the
victim by cell phone and text message, and taking the victim to restaurants. The
Defendant’s chat messages indicate he groomed an individual for sexual activity for ten
years, which corresponds to the victim’s age at the time the offenses began. The
Defendant had known the victim for all of the victim’s life. In addition, the Defendant

                                           -41-
stated in the Skype chat messages that he and the person he had groomed engaged in
many of the same activities identified by the victim in the forensic interview and in his
testimony.

       The Defendant focuses on the victim’s testimony that he did not view the
Defendant as being in a position of authority or as a caretaker during the victim’s visits at
the Defendant’s father’s house. The trial court, however, was uncompelled by the
victim’s characterization at the sentencing hearing of the Defendant’s lack of authority,
given the totality of the evidence.

      Upon review, we conclude that the trial court did not abuse its discretion in
enhancing the Defendant’s sentences based upon the abuse of private trust factor.

B.     Consecutive Sentencing

       The Defendant contends that the trial court abused its discretion in applying the
consecutive sentencing factor related to the commission of two or more offenses
involving sexual abuse of a minor. He argues that the court stated that it “must” consider
the consecutive sentencing factors, thereby indicating that the court erroneously believed
consecutive sentencing was mandatory, whereas the statute states that the sentencing
court “may” impose consecutive sentences upon a finding of one or more consecutive
sentencing factor. See id. § 40-35-115(b). We have considered the Defendant’s
argument and conclude that it is without merit. The record reflects that the court engaged
in a careful consideration of the facts and the law. Nothing indicates that the court
believed consecutive sentencing was mandatory. Rather, the court merely stated it must
consider whether the factors of section 40-35-115 applied. We note, as well, that the
court ordered only some of the sentences to be served consecutively, further supporting a
conclusion that the court did not believe consecutive sentencing was mandatory.

       The Defendant has failed to show that the trial court abused its discretion in
applying the consecutive sentencing factor related to the commission of two more
offenses involving sexual abuse of a minor.

B.     Constitutionality of Sentences

       The Defendant argues that his effective eighty-one-year sentence is grossly
disproportionate in relation to the offenses and that incarceration for this period of time
violates his rights pursuant to the Eighth Amendment to the United States Constitution
and Article I, Section 16 of the Tennessee Constitution.


                                            -42-
       The Eighth Amendment to the United States Constitution and Article I, Section 16
of the Tennessee Constitution prohibit, inter alia, “cruel and unusual punishments.” Our
supreme court has said that the following methodology is appropriate for evaluating the
proportionality of a defendant’s sentence to his crime:


      [T]he sentence imposed is initially compared with the crime committed.
      Unless this threshold comparison leads to an inference of gross
      disproportionality, the inquiry ends—the sentence is constitutional. In
      those rare cases where this inference does arise, the analysis proceeds by
      comparing (1) the sentences imposed on other criminals in the same
      jurisdiction, and (2) the sentences imposed for commission of the same
      crime in other jurisdictions.

State v. Harris, 844 S.W.2d 601, 603 (Tenn. 1992) (citing Harmelin v. Michigan, 501
U.S. 2680, 2702-09 (1991) (Kennedy, J., concurring)).

       The Defendant acknowledges our supreme court’s Harris decision but requests
that we adopt the dissenting justice’s position in Harris. As an intermediate appellate
court, we are bound by the majority decisions of our supreme court.

       Thus, we will endeavor to analyze the Defendant’s sentences as compared with the
crimes committed to determine if gross disproportionality exists. See id. In that regard,
we are unpersuaded. Sexual abuse of minors is, indeed, one of the most egregious
offenses an individual can commit. The Defendant has not challenged the proportionality
of any of his individual sentences. We note, however, that this court has said that no
gross disproportionality exists between the offense of rape of a child and the mandatory
sentence of at least twenty-five years. See Brandon Lee Clymer, No. M2016-01124-
CCA-R3-CD, 2017 WL 5197292, at *16 (Tenn. Crim. App. Nov. 9, 2017), perm. app.
denied (Tenn. Mar. 14, 2018). Likewise, our supreme court said in Harris that a twenty-
year sentence was not grossly disproportionate to the offense of aggravated sexual
battery. Harris, 844 S.W.2d at 603.

       In the present case, the Defendant informed the victim about the nature of sexual
encounters, instructed the victim in masturbation mechanics, provided sex toys and
lubricants, and, ultimately, perpetrated sexual offenses upon the ten- to twelve-year-old
victim on as many as fifty-two occasions over a two-year period. The Defendant
engaged in specific acts, such as making the victim urinate on the Defendant, for the
Defendant’s sexual gratification. The Defendant’s use of sex toys with the victim was
consistent with the Defendant’s dragon fetish. The eighty-one-year sentence is not

                                          -43-
grossly disproportionate to the crimes committed, such as would support a constitutional
violation by enforcement of the sentence.

       The Defendant has cited several cases in which the defendants received effective
sentences of less than eighty-one years for multiple convictions of sexual offenses against
children. However, because we have concluded that the Defendant has failed to make a
threshold showing of gross disproportionality between his effective sentence and the
crimes he committed, further inquiry into sentences imposed on other defendants is not
warranted. See id.

C.     Cumulative Sentencing Errors

       The Defendant argues that he is entitled to relief based upon cumulative errors in
sentencing. The concept of cumulative error is that multiple errors, though harmless
individually, cumulatively violate a defendant’s right to a fair trial. State v. Hester, 324
S.W.3d 1, 76-77 (Tenn. 2010). The Defendant’s argument must fail because we have
rejected each of the Defendant’s allegations of error related to sentencing.

        In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.

                                            _____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




                                           -44-
