                                                                                         08/08/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               January 17, 2019 Session

     STATE OF TENNESSEE v. BRANDON ROBERT VANDENBURG

                Appeal from the Criminal Court for Davidson County
                     No. 2015-C-1517 Monte Watkins, Judge
                     ___________________________________

                           No. M2017-01882-CCA-R3-CD
                       ___________________________________


        A Davidson County jury convicted Brandon Robert Vandenburg, Defendant, of
five counts of aggravated rape, two counts of aggravated sexual battery, and one count of
unlawful photography. On appeal, Defendant argues the following: (1) the trial court’s
denial of his motion to dismiss the superseding indictment violated his right to due
process and protection from double jeopardy and violated Tennessee Rule of Criminal
Procedure 8; (2) prosecution on the superseding indictment created a realistic likelihood
of vindictive prosecution; (3) the trial court erred in excluding the testimony of Dr. J.
Sidney Alexander; (4) the trial court erred by denying Defendant’s request to question
potential jurors about recent rape cases in national news and by failing to timely
admonish prospective jurors; (5) the trial court erred in denying Defendant’s motion to
suppress the June 27, 2013 interrogation and evidence obtained based on that
interrogation; (6) the trial court erred in excluding Defendant’s voicemail on Joseph
Quinzio’s cell phone; (7) the trial court erred by instructing the jury on the requisite
culpability for criminal responsibility and on “presence and companionship” as it relates
to criminal responsibility; (8) the State committed prosecutorial misconduct during
closing arguments; (9) the evidence was insufficient for a rational juror to have found
Defendant guilty beyond a reasonable doubt; (10) Tennessee Code Annotated section 39-
13-605 is void for vagueness; (11) the trial court erred in ordering Defendant to serve an
excessive sentence; (12) the trial court erred in denying Defendant’s motion to recuse;
(13) the trial court erred by excluding evidence of the co-defendants’ prior bad acts; (14)
the trial court erred by denying Defendant’s Tennessee Rule of Evidence 412 motion; and
(15) the cumulative errors in Defendant’s trial warrant a new trial. After a thorough
review of the facts and applicable case law, we affirm the trial court’s judgments in
counts one through four and six through eight. Although not raised by either party, we
determine that Defendant’s conviction of aggravated rape in count five must be vacated.
We modify the conviction in count five to attempted aggravated rape and remand to the
trial court for sentencing in count five.1

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                     in Part, Vacated in Part and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.

Randall E. Reagan, Knoxville, Tennessee (on appeal), Troy Bowlin, Morristown,
Tennessee, and Albert Perez, Jr., West Covina, California (at trial) for the appellant,
Brandon Robert Vandenburg.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Tom Thurman and Jan
Norman, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                                 OPINION

                              I. Factual and Procedural Background

      This appeal stems from Defendant’s participation in the aggravated rape,
aggravated sexual battery, and unlawful photography of the victim, E.L.,2 along with Co-
defendants Corey Batey, Jaborian McKenzie, and Brandon Banks. In August 2013, the
Davidson County Grand Jury indicted Defendant and his co-defendants on five counts of
aggravated rape, two counts of aggravated sexual battery, one count of tampering with
evidence, and one count of unlawful photography. Defendant and Co-defendant Batey
proceeded to trial in January 2015. The jury found Defendant guilty of four counts of

        1
           After the jury returned a verdict in the previous trial, the trial court granted a new trial. The
State then obtained a superseding indictment which included five counts of aggravated rape and several
other offenses. The State made an election of offenses in both trials. In the first trial, the State elected to
proceed in count four with “the penile-vaginal penetration of the victim by Mr. Batey.” The jury in the
previous trial found Defendant guilty as charged with the exception of count four in which the jury found
Defendant guilty of attempted aggravated rape, a lesser included offense of aggravated rape. In the
subsequent trial, the State elected to proceed in count five with the penile-vaginal penetration of the
victim by Mr. Batey, and the jury found Defendant guilty of aggravated rape in count five. Because the
jury in the previous trial found Defendant guilty of the lesser included offense of attempted aggravated
rape in count four, Defendant’s conviction of aggravated rape for the same particular incident in count
five of the subsequent trial violates double jeopardy principles.
         2
           It is the custom of this court to refer to victims of sexual crimes by their initials to protect their
identity. We intend no disrespect.
                                                     -2-
aggravated rape, one count of attempted aggravated rape, two counts of aggravated
sexual battery, one count of tampering with evidence, and one count of unlawful
photography. On June 23, 2015, the trial court granted Defendant’s motion to declare a
mistrial3 because the jury foreperson failed to disclose that he had been named a victim of
statutory rape in a prior criminal case. The trial court determined that the jury
foreperson’s conduct “g[ave] rise to a presumption of bias” and that the foreperson was
not “a fair and impartial juror.”

      On July 7, 2015, the Davidson County Grand Jury issued a second indictment that
charged Defendant and his co-defendants with five counts of aggravated rape, two counts
of aggravated sexual battery, and one count of unlawful photography. Defendant
proceeded to trial in June 2016.

                                                Jury trial

       Captain Donnie Harville4 testified that he worked for the Vanderbilt Police
Department (VPD) in the Investigation Division. Captain Harville explained that the
VPD had “a memorandum of understanding with [the Metro Nashville Police
Department] where they investigate certain crimes for the [VPD] when major felonies
happen on campus. They usually come in and assist us or they can take lead over the
investigation.” Captain Harville explained that the VPD began investigating the current
offenses because “[t]he Housing Unit was reviewing the video surveillance on the NICE
System,5 and it came across some suspicious activity, and they alerted the [VPD] to
investigate.” He learned of the video on the morning of June 26, 2013. When Captain
Harville reviewed the June 23, 2013 surveillance footage from multiple cameras in
Gillette Hall, a dormitory for athletes on Vanderbilt’s campus, he observed “four males
carrying an unconscious female into Gillette Hall.”

        Captain Harville identified the DVDs that contained the surveillance footage from
multiple cameras in Gillette Hall during the time period that the offenses occurred. He
testified that the video surveillance footage depicted a vehicle approaching one entrance
        3
          Defendant’s motion for mistrial or to set aside the verdict was not included in the appellate
record. Additionally, a transcript of the evidentiary hearing related to Defendant’s motion was not
included in the appellate record. The appellant bears the burden of preparing an adequate record on
appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes the duty to “have
prepared a transcript of such part of the evidence or proceedings as is necessary to convey a fair, accurate
and complete account of what transpired with respect to those issues that are the bases of appeal.” Tenn.
R. App. P. 24(b).
        4
          Captain Harville testified that, at the time of the offenses, he held the rank of lieutenant
detective at the VPD.
        5
          Captain Harville explained that the NICE system was Vanderbilt’s video surveillance system in
the campus dorms and buildings.
                                                   -3-
of the dorm. A person, whom Captain Harville identified as Defendant, exited the
vehicle and attempted to enter the dorm by scanning an ID card. The video surveillance
footage also depicted Defendant speaking with two individuals, Co-defendants McKenzie
and Banks, outside of the dorm. Another individual, whom Captain Harville identified as
Co-defendant Batey, approached Defendant. The video then depicted Defendant carrying
an unconscious female from the vehicle into the dorm. Video surveillance footage from
inside Gillette Hall depicted Defendant carrying the unconscious female, whom Captain
Harville identified as E.L, into the dorm with Co-defendants McKenzie, Banks, and
Batey. Co-defendant McKenzie pushed the elevator button while Defendant carried E.L.
Defendant and Co-defendant Banks entered the elevator with E.L. and rode it to the
second floor. Co-defendants Batey and McKenzie later joined Defendant, Co-defendant
Banks, and E.L. on the second floor. On cross-examination, Captain Harville agreed that
Defendant appeared to struggle to carry E.L. while he waited for the elevator to arrive on
the first floor of Gillette Hall.

        After Defendant and Co-defendant Banks arrived on the second floor, Defendant
picked E.L. up off the elevator floor and placed her on the hallway floor. The video of
the second-floor surveillance camera depicted Co-defendant Banks taking a photograph
of E.L. on his cell phone while she lay on the hallway floor. Defendant and Co-
defendant Banks then picked up E.L. and carried her down the hallway. Surveillance
footage then depicted Defendant carrying E.L. into Room 213 at 2:37 a.m. Co-
defendants Banks and Batey followed Defendant into the room. Around 3:09 a.m.,
Defendant left Room 213 with a towel on his head and approached one of the
surveillance cameras. Defendant placed the towel on the camera to block its view; by
3:26 a.m., someone had removed the towel. During cross-examination, Captain Harville
stated that surveillance footage depicted Defendant experiencing “some type of emotion”
around 3:13 a.m.

       Around 3:14 a.m., the surveillance video in East Hall dormitory depicted Chris
Boyd and Michael Retta exit Mr. Boyd’s room; Mr. Boyd had a cell phone in his hand.
Dillon van der Wal exited his room and spoke with Mr. Boyd and Mr. Retta. A few
minutes later, the surveillance video depicted Mr. Boyd, Mr. Retta, and Mr. van der Wal
exiting East Hall around 3:18 a.m. At 3:21 a.m., the surveillance video in Gillette Hall
depicted Defendant walking to the main lobby of the second floor and opening the door
for Mr. Boyd, Mr. van der Wal, Mr. Retta, and Deandre Woods.

       At 4:16 a.m., the surveillance video in East Hall depicted Defendant standing in a
hallway speaking with Mr. van der Wal, Austyn Carta-Samuels, and Mr. Boyd. From
4:52 a.m. to 5:14 a.m., E.L. exited Room 213, entered the bathroom, and either returned
to Room 213 or walked around the hallway several times. Around 11:50 a.m., E.L., who

                                          -4-
had entered Room 214 around 8:00 a.m., left with another female, exited Gillette Hall,
and drove off in her vehicle which was parked in front of the dorm.

       On cross-examination, Captain Harville testified that he had asked Kevin Colon,
an athletic department official, to bring Defendant to the VPD office. Captain Harville
then introduced Defendant to Detective Jason Mayo and Sergeant Michael Shreeve. On
redirect examination, Captain Harville explained that he met Defendant outside of a VPD
administration building, where administrative staff in plain clothes worked.

       G.L. Black testified that, in June 2013, he worked at Vanderbilt University as an
Associate Dean and Director of Student Conduct and Academic Integrity. Mr. Black
explained that his role at Vanderbilt involved “reviewing and resolving student violations
of university policy[.]” Mr. Black received regular reports from “different entities on
campus” that concerned academic or nonacademic misconduct. Around 4:30 p.m. on
June 24, 2013, Mr. Black learned of “some video footage” that pertained to student
misconduct. To begin his investigation, Mr. Black viewed “a few video clips that . . .
showed a woman, who appeared to be incapacitated in some way, . . . being carried into a
residence hall by several males.” On June 25, Mr. Black “convened a group of people in
the middle of the day to look at the video to try to help identify these students . . . on the
video.” The group did not include any VPD officers but did involve three athletic
department officials—David Williams, Candace Lee, and Mr. Colon. Mr. Black arranged
for nine students identified on the video to come to his office to discuss the footage that
afternoon: Defendant; Co-defendants McKenzie, Banks, and Batey; Jacob Bernstein; Mr.
van der Wal; Mr. Boyd; Deandre Woods; and Mack Prioleau. Mr. Black met with the
students individually and recorded the interviews.

        During his interview with Mr. Black, Defendant stated that he saw E.L., whom he
had met previously at Tin Roof, a local bar, on the night of June 22. He explained that
both he and E.L. were intoxicated that night. They attempted to get into her apartment
but were unable, so Defendant drove them in E.L.’s vehicle to Gillette Hall. Defendant
told Mr. Black that E.L. was not very coherent but had not passed out during the drive.
Once they arrived at Gillette Hall, Co-defendants McKenzie, Batey, and Banks helped
Defendant carry E.L. to his room on the second floor. Defendant told Mr. Black that they
put E.L. in his bed; he then went to East Hall to spend the night because E.L. had thrown
up in the room. Defendant denied that he or any of the Co-defendants had sexual contact
with E.L., took photographs of her, or had sexual intercourse with her. Later in the
interview, Defendant explained that he covered up the security camera on the second
floor of Gillette Hall because he “wasn’t thinking clearly” and “there was a girl passed
out in [his] room.” Defendant gave a signed, written statement to Mr. Black that
reiterated his verbal statement. On the evening of Friday, June 28, Mr. Black placed
Defendant on interim suspension from Vanderbilt University.
                                            -5-
       Detective Mayo testified that he had worked for the Metro Nashville Police
Department (“MNPD”) since 2000. In June 2013, Detective Mayo worked in the Sex
Crimes Unit of the MNPD. On June 26, 2013, Detective Mayo received a phone call
from his supervisor, Sergeant Shreeve, around 2:30 p.m. Sergeant Shreeve asked
Detective Mayo to respond to the VPD’s administrative building. When Detective Mayo
arrived, he met with Sergeant Shreeve and a VPD officer. He observed several still shots
obtained from the surveillance videos while another officer interviewed E.L. With the
assistance of the VPD and other Vanderbilt officials, Detective Mayo identified the
individuals depicted in the still photographs. Detective Mayo described E.L. as
“somewhat confused” and “dumbfounded” about the events of June 23. Detective Mayo
noted that because the still photographs were timestamped, he could estimate when the
offenses occurred. He estimated that eighty to ninety hours elapsed between the time
when the offenses occurred and when the VPD and the MNPD interviewed E.L.
Detective Mayo asked E.L. to consent to a medical-legal examination at Vanderbilt
University Hospital. After the examination, E.L. retrieved clothing that she wore during
the offenses “[f]or possible evidence collection.”

       On the morning of June 27, Detective Mayo and Sergeant Shreeve returned to the
VPD administrative building and interviewed several individuals, including Defendant, in
Captain Harville’s office. During the interview, Defendant initially stated that he “might
have taken a picture” of E.L., but if he did, he deleted the photograph. Later during the
interview, Defendant stated the following:

             They helped me bring her up to the room and -- man, I can’t even
      talk about this s[**]t. Right as I got in there, I changed to my pajamas. At
      some point, they told me [Co-defendant McKenzie] took off his shirt. He
      told me -- after we all got interrogated, they told me . . . hey we all need to
      get the same story, we need to . . . have an explanation for why [Co-
      defendant McKenzie] took off his shirt and all this stuff.

              And -- and anyways, so as I brought her in there, she was on the
      floor throwing up and I sat on my bed. My roommate was there. He kind
      of woke up a little bit. I mean I’m sure he saw me sitting on my bed. And
      she was on the floor and they just -- they turned her over and they were just
      messing with her and slapping her leg or slapping her butt and fingering her
      and s[**]t. And I don’t -- honestly, I don’t even know everybody -- who
      was [there] because at one point they turned off the light. And after that,
      they’re all laughing about it and -- I don’t know if they had sex with her or
      not. I couldn’t tell. I was pretty inebriated.

      ....
                                           -6-
              And they were like, “You need to sleep -- you need to sleep in here
      with her and act like nothing happened and all this stuff. And at one point,
      like I know you guys saw like I -- I put the towel over the camera ‘cause
      right before they left, I wanted them to help take her back to the room or
      something and that’s when I called [Mr.] Boyd and [Mr. van der Wal]
      because I mean I knew something bad just really happened and it like -- I
      was just trying to bring her up to my room to put her in the bed and like I
      couldn’t carry her myself and like -- just f[****]d up, man. Like I sat there
      and like saw it happening and I didn’t tell them to stop, you know, but I
      d[**]n well didn’t do anything. I didn’t even touch the girl.

      ....

              I didn’t know what to do. I -- you know, I was intoxicated. I mean
      obviously you see the camera footage. But I didn’t do anything to stop it,
      and that’s when I called [Mr. Boyd] and -- [Mr. Boyd] and [Mr. van der
      Wal] and they said they would be right up and that’s when I told them.
      Like I told them everything that happened, that they did all this stuff and
      that I just needed help. And -- and they told me to sleep in . . . his room
      and we’ll talk about it in the morning.

             And I texted her in the morning. And all those guys talked to me the
      next day, the guys that did it. They’re like, “You need to be quiet. You
      can’t talk about this stuff. You need to have sex with her to like try to
      cover it up like whatever happened.” And so the next day I had her come
      over. I don’t know if she told you that or not. And we ended up having sex
      unprotected and that was that. And after they investigated us or they called
      us in. They told me I needed to get my story straight and say nothing
      happened. And they said that [Co-defendant McKenzie] took his shirt off
      because I threw water on him. And say that I covered up the camera
      because -- I don’t even know why.

              And I just feel -- I’m just scared because . . . they’re going to say
      that like I did something and it’s like -- I know at least my roommate was
      there for a little bit but he was sleeping. But at least he saw that I was on
      the bed the whole time. I didn’t even touch her. Like I have no reason to.
      She -- like we had sex the next day. . . . I don’t have sex with a girl
      throwing up. That’s disgusting.

     Defendant again stated that he did not think that Co-defendants Banks, Batey, or
McKenzie took photographs of E.L. during the offenses. Defendant told Detective Mayo,
                                          -7-
however, that he took a video of his co-defendants digitally penetrating E.L. and that he
sent the video to Mr. Boyd and Mr. Carta-Samuels. Defendant also admitted to flushing
condom wrappers down the toilet after he placed a towel over the security camera in the
hallway. Defendant did not recall that E.L. made any noise during the offenses.
Defendant consented to allow Detective Mayo and Sergeant Shreeve to inspect his phone
and to collect a DNA sample.

       After the interview, Captain Harville accompanied Defendant to his dorm room to
collect his cell phone. Detective Mayo met E.L. at the Vanderbilt University Crisis
Center; when he informed E.L. that she had been raped and sexually assaulted, she was
“[p]retty shocked[,]” “visibly upset[,]” and “[c]ried.” After speaking with E.L., Detective
Mayo returned to the VPD administration building and collected Defendant’s phone.
Around 2:00 p.m., Detective Mayo, Sergeant Shreeve, and Captain Harville went to
Room 213 in Gillette Hall and met with Defendant and his roommate, Mr. Prioleau.
With the consent of Defendant and Mr. Prioleau, the officers examined Room 213.
Detective Mayo asked for the MNPD Identification (ID) Unit to come to the room to
collect evidence. On June 28, Detective Mayo executed search warrants to gather digital
data from Co-defendants McKenzie, Batey, and Banks’ cell phone. Detective Mayo also
returned to Room 213 to search Defendant’s laptop computer.

       On cross-examination, Detective Mayo testified that he interviewed Co-defendant
McKenzie on July 7, 2013, September 9, 2013, and July 14, 2014. He also interviewed
E.L. and Mr. Prioleau. During his investigation, Detective Mayo collected Mr. Boyd’s
and Mr. Carta-Samuels’ phones. Detective Mayo agreed that he asked Defendant to
make a controlled phone call to Co-defendant Batey and that Defendant complied.
Detective Mayo recovered an iPhone 4 from Joseph Quinzio.

       Investigator Felicia Evans worked for the MNPD as a crime scene investigator in
the Crime Scene Investigation Unit at the time of the offenses. On June 27, 2013,
Investigator Evans responded to Gillette Hall to assist Investigator Sharon Tilley.
Investigator Tilley walked through the scene first with Detective Mayo, then with
Investigator Evans.      Investigator Tilley photographed the room; later, she and
Investigator Evans marked items for collection of evidence. Investigators Evans and
Tilley also performed a panoscan6 of Room 213 and used an “alternative light source” to
look for body fluids but did not find any. Investigator Evans photographed a “container”
or “tub” near a desk that contained “vomitus-type material on the bottom of the tub.” She
also collected a scraping of the substance from the bottom of the container. Additionally,

        6
          Investigator Evans explained that a panoscan was a 360-degree photograph of an area. She
stated that a panoscan “allows for any still photographs that were taken to be embedded into that actual
scan.”
                                                 -8-
Investigators Evans and Tilley processed the room for latent prints and collected a green
towel and a red and white towel. Investigator Evans testified that the red and white towel
smelled strongly of urine. When Investigator Evans scanned the green towel with the
alternative light source, the light indicated the presence of “bodily fluid or semen” near
the edge of the towel. She also processed a condom box and loose condoms found in a
drawer for latent prints. Further, Investigator Evans found latent prints on the interior
side of the door. On cross-examination, Investigator Evans clarified that she collected
two fingerprints on the condom box.

        Detective Chad Gish testified that he worked for the MNPD in the Surveillance
and Investigative Support Unit of the Criminal Investigative Division. Defendant and the
State stipulated that Detective Gish was an expert in digital forensics. Detective Gish
explained that the Surveillance and Investigative Support Unit “work[ed] a lot of major
crimes, especially crimes that have a digital aspect involved, such as cell phones,
computers, video anything of that nature.” In July 2013, Detective Mayo and Sergeant
Shreeve asked Detective Gish to assist in digitally analyzing electronic devices they had
seized while investigating the current offenses. Detective Gish requested Defendant’s
interview with Detective Mayo and Sergeant Shreeve at the VPD administrative office as
well as the surveillance video from Gillette Hall. With these items of evidence, Detective
Gish created a timeline of the offenses. Next, Detective Gish connected the electronic
devices that MNPD had seized to “a forensic piece of software[] to extract the data from
that telephone.” Detective Gish was unable to recover any deleted photographs or videos
from Defendant’s iPhone, but he found other evidence that the phone had previously held
photographs or videos related to the offenses, such as “references to ‘rape’ in iMessages”
and “numerous, numerous[] calls” during the timeframe of the offenses. Detective Gish
also observed that “[t]he content of the messages seemed to be that whoever was
responding to these messages had seen a video[] or a picture.” Additionally, Detective
Gish “saw references in the recovered text message of this timeframe[] . . . to Facetime.”7
Detective Gish also examined the search history of Defendant’s iPhone and found that a
user had searched Google on June 26, 2013 for the following phrase: “Can police retrieve
deleted picture messages.” After the Google search engine provided the user with a list
of websites that met the search criteria, the user went to a website that discussed “police
mine deleted texts from your cell phone[.]” The user also searched on The Student Room
web server for the following phrase: “Police Power/capabilities on Recovering Deleted
Messages from a Sams[u]ng phone.” Detective Gish continued to examine Defendant’s
iPhone and found “a lot of missing images that had been deleted” from Defendant’s
phone during the timeframe of the offenses. Further, Detective Gish examined a

        7
          Detective Gish explained that Facetime is “basically, a phone call, a video phone call, streamed
over the web.”

                                                  -9-
“thumbnail database”8 on Defendant’s iPhone and “recovered images from this thumbnail
database[] that were taken in the timeframe of 2:38 to 3:10 in the morning, inside the
room with the victim” from the day that the offenses occurred. Detective Gish was able
to recover “nine images that were taken from [Defendant]’s cell phone out of the
thumbnails”; the thumbnails were from photographs or still images of videos. Detective
Gish testified that the thumbnails depicted the following, in pertinent part:

         E.L. lying on the carpet in the hallway of the second floor of Gillette Hall with
          her skirt pulled up, her underwear removed. Her buttocks are red and her top
          is pulled up, exposing her breasts;
         E.L. lying on the floor of Defendant’s dorm room with Co-defendant Batey
          kneeling over her while touching his genital area;
         E.L. lying on the floor of Defendant’s dorm room with her skirt pulled up
          above her waist, her underwear removed, and her legs “spread open.” Co-
          defendant Banks’s hand is depicted in the photograph holding a cell phone;
         E.L. lying face down with her underwear removed, her skirt pulled up, and her
          legs spread open with Co-defendant Batey penetrating E.L.’s vagina with his
          fingers;
         E.L. lying on the floor of Defendant’s dorm room with her underwear
          removed, her skirt pulled up, and a bottle penetrating her anus;
         E.L. lying face down with her underwear removed and Co-defendant Batey
          penetrating E.L.’s vagina with his fingers while Co-defendant Banks takes a
          photograph with his cell phone;
         E.L. lying on the floor of Defendant’s dorm room with her underwear
          removed, her skirt pulled up, and Co-defendant Batey kneeling near her head
          with his pants pulled down to his waist and holding his penis in his hand;
         E.L. lying in the hallway of the second floor of Gillette Hall with her skirt
          pulled up.

       Detective Gish also forensically examined Co-defendant Batey’s iPhone; he
extracted data that included messages, photographs, and videos. Detective Gish
discovered that “there were images taken from [Co-defendant] Batey’s phone, but like
[Defendant]’s they had been deleted and they weren’t recovered.” Using the same
process of recovering the thumbnail database on Co-defendant Batey’s iPhone, Detective
Gish was able to recover thumbnail images. He described the images as the following:



        8
          Detective Gish explained that computers do not delete the thumbnail views of files when a user
deletes the original file. Similarly, iPhones do not delete the thumbnail images of files that have been
deleted from the phone’s memory.
                                                - 10 -
       E.L. lying in Defendant’s dorm room with her skirt pulled up, her underwear
        removed, and her top pulled up;
       E.L. lying on her back with her bra pulled up or removed to expose her breasts;
       E.L. lying on her back while Co-defendant Banks spreads her labia open and
        takes a photograph of her vagina;
       E.L. lying in Defendant’s dorm room with her underwear removed and her
        skirt removed or pulled up so that her lower body is exposed. Her buttocks
        appeared red;
       E.L. lying on her stomach in Defendant’s dorm room while Co-defendant
        Batey spread her buttocks open to expose her anus and labia;
       E.L. lying in the hallway of the second floor of Gillette Hall with her
        underwear removed, her skirt pulled up, and her buttocks appeared red;
       Close-up photographs of E.L.’s genitals and anus.

       Detective Gish conducted the same forensic digital exam on Co-defendant Banks’s
cell phone as he had conducted on Defendant’s and Co-defendant Batey’s iPhones.
Similarly, he was able to recover thumbnail images of deleted photographs or videos
from Co-defendant Banks’s phone. The thumbnail images depict the following:

       E.L. lying in Defendant’s dorm room with her shirt pulled up and Co-
        defendant Batey kneeling near her head while touching his genital area;
       Two close-up images of E.L.’s buttocks with her underwear removed or pulled
        down and her buttocks spread apart so that her anus and labia are exposed. Co-
        defendant Batey is depicted digitally penetrating E.L.’s vagina;
       E.L. lying face down in Defendant’s dorm room with her underwear pulled
        down below her thighs while Co-defendant Batey digitally penetrates her anus;
       E.L. lying in Defendant’s dorm room with her underwear removed, her top and
        skirt pulled up while Co-defendant Batey kneels on a red and white towel;
       E.L. lying in Defendant’s dorm room with a bottle penetrating her anus;
       Multiple close-up photographs of Co-defendant Banks’s hand spreading E.L.’s
        labia open to expose her vagina;
       E.L. lying on her back in Defendant’s dorm room while her face appears wet;
       E.L. lying on her back with her shirt pulled up to expose her breasts and an
        object covering her face;
       E.L. lying on her back with her underwear and skirt removed while Co-
        defendant Batey squats over her face with his underwear pulled down;
       A close-up image of Co-defendant Batey squatting over E.L.’s face with his
        underwear pulled down;


                                        - 11 -
       Detective Gish forensically examined Defendant’s laptop computer and found that
the internet browsing history had been deleted. However, he was able to recover “a
picture of the actual website that was accessed by the user.” Detective Gish observed
four “web page previews of pornography sites that were accessed” during the timeframe
of the offenses. Detective Gish learned that Defendant’s iPhone called or received calls
from the phones of Miles Finley and Mr. Quinzio during the timeframe of the offenses.
In July 2013, Detective Gish, Detective Mayo, and Sergeant Shreeve traveled to Palm
Desert, California, to speak with Mr. Finley and Mr. Quinzio and “to conduct search
warrants on the mobile devices and electronic devices of these two individuals[.]”

        Detective Gish seized a MacBook Pro laptop from Mr. Quinzio; he conducted a
digital forensic analysis of the computer and found photographs or videos relating to the
offenses. One video was approximately twelve seconds long and was recorded at 2:35
a.m. on June 23; the file was labeled IMG_1398.mov, which corresponded to a file that
had been deleted from Defendant’s iPhone. The video depicts E.L. lying in the hallway
of the second floor of Gillette Hall mumbling incoherently with her skirt pulled up while
Co-defendant Banks takes a photograph of E.L.’s genitals on his phone. During the
video, Defendant says, “My phone’s motherf[**]king dead right now. My phone’s
motherf[**]king dead.” Detective Gish noted that the angle of this video and the
timeframe matched Defendant’s actions seen on the surveillance video from Gillette Hall.

       Mr. Quinzio received another video from Defendant through iMessage that was
recorded at 2:40 a.m. on June 23; this video was labeled IMG_1400.mov and was almost
seven seconds in length. IMG_1400.mov depicts Co-defendant Batey digitally
penetrating E.L.’s anus with his right index finger in Defendant’s dorm room while
E.L.’s underwear is pulled down and her skirt is pushed up. E.L.’s left buttock appears
red. Defendant can be heard laughing while he films. Detective Gish noted that this
video also corresponded to a file that had been deleted from Defendant’s iPhone.

       After Defendant sent these videos to Mr. Quinzio and Mr. Finley, the three men
had the following exchange on iMessage:

             MR. FINLEY: UR gunna get in trouble

             MR. FINLEY: Delete that s[**]t

             MR. FINLEY: Lol

             MR. QUINZIO: Yeah Brandon you a dumbass.

             MR. FINLEY: Get out of there
                                         - 12 -
             MR. FINLEY: She could call rape so done.

             MR. FINLEY: Soon

             MR. FINLEY: Delete that s[**]t

             MR. QUINZIO: Seriously!

             ....

             MR. FINLEY: Dog kick that b[***]h out or gangbang her

             MR. FINLEY: Don’t let her wake up

             MR. QUINZIO: Raping girls at vandy

             DEFENDANT: U gotta delete this text

        Defendant sent a third video to Mr. Quinzio, Mr. Finley, Mr. Boyd, and Mr. Carta-
Samuels through iMessage; this file was labeled IMG_1401.mov. The video was
approximately forty-one seconds long and was recorded at 2:40 a.m. Detective Gish
determined that Defendant was the individual who recorded this video because “when he
points the phone down you see his blue jeans and his shoes that he was wearing in the
surveillance video.” When the video begins, E.L. is lying face down on the dorm room
floor with a plastic bottle penetrating her anus. Defendant laughs and says, “Squeeze that
s[**]t, squeeze that s[**]t, squeeze that s[**]t[,]” and Co-defendant Banks squeezes and
twists the bottle. Defendant says “I can’t do this shit bro” and laughs. Detective Gish
testified that another person in the room says, “Let’s go back to Tin Roof. Hey, do you
guys want to go back to Tin Roof?” Co-defendant Batey kneels on the left side of E.L.’s
body in his underwear. Defendant says, “Dude, I can’t do this. I can’t f[**]king do this
right now. Bro, you ain’t even hard, bro[,]” as Co-defendant Batey leans forward with
his hands near his genital area and then pulls away from E.L’s body. Detective Gish
testified that the video appeared to depict Co-defendant Batey penetrating E.L.’s vagina
with his penis. In response to the video, Mr. Finley messaged, “Lol[,]” and Defendant
responded, “FaceTime[.]”

       During a message exchange with Mr. Quinzio on June 22 at 6:06 p.m., the evening
before the offenses, Defendant mentioned that he “smashed last night but didn’t.”
Defendant then sent the following messages to Mr. Quinzio, in pertinent part: “Ever since
that god damn pro hormone dude . . . .!”; “Limp..”; “I know..but like I was hard AF at
                                          - 13 -
first”; “Well we gunna try again tonight cuz ima f[**]k a different girl”; “Ima make sure I
f[**]k tonight.” Detective Gish found another conversation between Defendant and Mr.
Quinzio on Mr. Quinzio’s laptop from June 26. During the message exchange,
Defendant asked Mr. Quinzio to “[s]end” “[a]ll 3[.]” In response, Mr. Quinzio sent
Defendant the three video files that Defendant had sent to Mr. Quinzio during the
offenses.

       Detective Gish obtained the call log from Defendant’s iPhone and identified the
following phone calls that Defendant placed on June 23, in pertinent part:

Call recipient                 Time                           Length
Joseph Quinzio                 2:48 a.m.                      None
Miles Finley                   2:52 a.m.                      0:10
                               2:53 a.m.                      0:05
                               3:08 a.m.                      0:02
Chris Boyd                     3:14 a.m.                      2:31
Austyn Carta-Samuels           3:17 a.m.                      0:03
Miles Finley                   3:18 a.m.                      0:03
Austyn Carta-Samuels           3:19 a.m.                      None
Dillon van der Wal             3:19 a.m.                      None
                               3:19 a.m.                      0:01
Joseph Quinzio                 3:36 a.m.                      0:33
Chris Boyd                     4:01 a.m.                      0:03
Corey Batey                    4:13 a.m.                      0:01

Detective Gish testified that these phone calls had been deleted, but he was able to
recover them from Defendant’s phone. Additionally, Detective Gish found a number of
calls to or from Co-defendant Batey on Defendant’s phone, some of which had been
deleted but were recovered:




                                           - 14 -
           Direction              Date/Time              Length
           Missed                 June 23 1:54 p.m.      None
           Missed                 June 25 11:44 p.m.     None
           Outgoing               June 25 11:45 p.m.     1:21
           Missed                 June 25 11:50 p.m.     None
           Outgoing               June 25 11:51 p.m.     None
           Outgoing               June 26 4:42 p.m.      0:02
           Incoming               June 26 4:47 p.m.      0:39
           Outgoing               June 26 4:54 p.m.      0:08
           Outgoing               June 26 9:51 p.m.      0:06
           Incoming               June 26 9:52 p.m.      1:40
           Outgoing               June 26 9:57 p.m.      0:02
           Outgoing               June 26 9:57 p.m.      0:02
           Outgoing               June 26 11:13 p.m.     0:03
           Missed                 June 26 11:35 p.m.     None
           Missed                 June 26 11:36 p.m.     None
           Outgoing               June 27 10:00 a.m.     2:24

On June 27, 2013, a user of Defendant’s computer viewed a page labeled “sexual assault”
on the website of Southern Illinois University at Carbondale.

       Detective Gish testified that he obtained an iPhone 4 from Mr. Quinzio, but this
phone did not contain any evidence relevant to his investigation. Detective Gish also
obtained an iPhone 5 from Mr. Quinzio. During his forensic analysis of this phone,
Detective Gish recovered a voicemail that Defendant left for Mr. Quinzio shortly after the
offenses occurred. This voicemail correlated to the thirty-three second phone call from
Defendant to Mr. Quinzio on June 23 at 3:36 a.m. Detective Gish also obtained an
iPhone from Mr. Finley during his execution of search warrants in California. Detective
Gish testified that Mr. Finley’s phone “had just been wiped” when he executed the search
warrant of Mr. Finley’s person. Detective Gish was unable to recover any evidence from
this phone during his forensic examination. Detective Gish also conducted forensic
analysis of computers found at Mr. Finley’s residence, but he found no evidence related
to the current offenses. Additionally, Detective Gish obtained and analyzed Mr. Carta-
Samuels’ phone, but again, he found no evidence related to the current offenses.

       Detective Gish obtained and analyzed Mr. Boyd’s phone and found an iMessage
conversation between Defendant and Mr. Boyd. The conversation had been deleted, but
Detective Gish was able to recover it. The conversation began at 2:49 a.m. and ended at
3:21 a.m. and included the following exchange:


                                          - 15 -
              DEFENDANT: I’m coming

              DEFENDANT: My phones at 1%

              DEFENDANT: Meet me outside the [e]mergency door at east

              MR. BOYD: Come get us

              DEFENDANT: Ok I’m leaving now my phones gunna charge in my
      room

              MR. BOYD: I’m at Gillette

              DEFENDANT: I’ll come out from of Gillette

              MR. BOYD: Hurry

              MR. BOYD: DDR hurry

      On June 25 and 26, Defendant had the following conversation with E.L. over
iMessage:

              E.L.: Are you okay? I’m worried.

             DEFENDANT: No I’m not:( this is all so messed up like I didn’t do
      anything and I feel like I’m getting blamed for stuff that didn’t even
      happen. I just wanna cry

              E.L.: That’s f[**]ked up. Want to come to the pool and talk about
      it???

             DEFENDANT: Me and a bunch of teammates are probably going to
      get kicked off the team unless something changes

              DEFENDANT: Not tonight, tomorrow can we?

            E.L.: Definitely. Are you sure not tonight? If you tell me what
      happened I might be able to help

              E.L.: I don’t want anyone to get into trouble because of me

                                          - 16 -
        E.L.: It’s going to be okay!

        DEFENDANT: Maybe I’ll call you later

        E.L.: I’ll do everything I can to clear your name

        DEFENDANT: I heard jakes spreading rumors and stuff idk y

        E.L.: Seriously?

       DEFENDANT: Idk it’s all rumors but this stuff is so whack I would
never do anything like that

....

      E.L.: I just got contacted by vanderbilt women’s center wanting me
to come in so they can help me but I asked someone from student conduct
to come too so I can try to clear this up

      DEFENDANT: Ok great this is such a mess, I’m never helping
anyone get home ever

       DEFENDANT: Next time just not gunna care lol. I feel like I’m
getting punished for taking care of u that night. .

        E.L.: You were just trying to help me I’ll tell them that.

        E.L.: I understand why you’re upset. I’m trying my best to make it
right

        E.L.: You should be!

        DEFENDANT: I’m just frustrated

        E.L.: I’ll take care of it.

....

        E.L.: They’re going to show me the video

        E.L.: So that should help
                                       - 17 -
             DEFENDANT: Ok cool

      ....

             DEFENDANT: What happened today

             E.L.: I don’t really know much more than you do

            DEFENDANT: I thought u said u talked to everyone today and
      watched the video?

             E.L.: Yeah I didn’t end up seeing it and they didn’t really tell me
      anything

             DEFENDANT: That’s weird cuz [sic] they said u watched it this
      afternoon

             E.L.: They wouldn’t tell me anything I was so confused

              DEFENDANT: Hmm that’s weird well I was told I wasn’t supposed
      to talk to u till all this is over…:(

             E.L.: Yeah me either

              DEFENDANT: Alright then I guess we can’t talk right now…I wuld
      [sic] never let what they’re saying happen to you that’s messed up

             DEFENDANT: I’m so upset right now

      ....

             E.L.: Why did y’all cover up the cameras

             E.L.: I’m just so confused right now

       Mr. Quinzio, testified that he had known Defendant since the age of thirteen. He
stated that in June 2013, he owned and used an iPhone 4. During the evening of June 22
and early morning of June 23, Mr. Quinzio did not converse with Defendant over
FaceTime. However, Mr. Quinzio received phone calls from Defendant during that
period. Defendant left a voicemail on Mr. Quinzio’s phone, but Mr. Quinzio stated that
                                         - 18 -
he “couldn’t make out much of the story. [Defendant] was talking to others, as well as
[Mr. Quinzio]. And [Defendant] just told [Mr. Quinzio] to call him back[.]” The
voicemail was approximately thirty-three seconds long.

       Approximately a week later, Defendant came to Mr. Quinzio’s house in
California, removed the video files from the computer, put them on a flash drive, and
attempted to delete and reinstall the “software” from Mr. Quinzio’s computer. Defendant
also drove Mr. Quinzio’s vehicle to retrieve his own vehicle. After Defendant drove Mr.
Quinzio’s vehicle, Mr. Quinzio discovered that his iPhone 4 was missing from his
vehicle. Defendant informed Mr. Quinzio that he would return Mr. Quinzio’s iPhone 4,
but Defendant did not do so. Defendant later informed Mr. Quinzio that the phone had
been destroyed, and Defendant purchased an iPhone 5 for Mr. Quinzio. Mr. Quinzio
stated that, based on his involvement in the current offenses, he entered a conditional
guilty plea to attempted accessory after the fact and received a sentence of eleven months
and twenty-nine days, suspended to unsupervised probation.

       On cross-examination, Mr. Quinzio clarified that, in addition to leaving a
voicemail on his phone, Defendant called him early in the morning of June 23. Mr.
Quinzio agreed that, during the phone call, Defendant sounded intoxicated. Mr. Quinzio
also agreed that he told Detective Mayo that he had never seen Defendant that intoxicated
and that Defendant was not a big consumer of alcohol. He further agreed that he told
Detective Mayo that he knew “what was going on” and that it “was wrong[,]” but that
Defendant did not. Mr. Quinzio also agreed that Defendant asked him to send the videos
of the offenses back because Defendant did not remember what had occurred.

       Co-defendant McKenzie testified that he currently lived in Mississippi and was
out on bond. In June 2013, Co-defendant McKenzie attended Vanderbilt University on a
football scholarship. He stated that Co-defendant Banks was his roommate and that he,
Co-defendant Banks, and Co-defendant Batey were best friends. He did not know
Defendant prior to June 23, 2013. On the evening of Saturday, June 22, Co-defendants
McKenzie, Banks, and Batey listened to music in McKenzie and Banks’ room in Gillette
Hall and drank alcoholic beverages. Later, the three co-defendants went to a party in
East Hall and consumed more alcoholic beverages. Co-defendants McKenzie, Banks,
and Batey returned to Gillette Hall with Batey’s friend, “Quela.” Co-defendant
McKenzie explained that they were “buzzed” from having consumed alcoholic
beverages, but they were able to walk and talk on their own. Co-defendant Batey and
“Quela” went to Co-defendant Batey’s room; Co-defendants Banks and McKenzie
returned to their room to change clothes and then left the dorm to purchase food. As Co-
defendants Banks and McKenzie returned to Gillette Hall with food for Co-defendant
Batey, they observed Defendant pulling up to the dorm and Co-defendant Batey exiting
Gillette Hall with “Quela[.]” Defendant informed Co-defendant McKenzie that “he had
                                          - 19 -
been out to the Tin Roof and he’s pretty drunk, and he had this young lady in the car, and
he needed [their] help to get her to his room.” Co-defendant McKenzie stated that
Defendant did not have trouble communicating. Defendant and Co-defendant Banks
carried E.L. out of the vehicle, into Gillette Hall, up the elevator, and into the second-
floor hallway. Co-defendant McKenzie and Co-defendant Batey went up to the second
floor a few minutes later. Co-defendant McKenzie did not know E.L. but observed that
she was “passed out” and did not make any sounds while she was in Defendant’s room.

       After Defendant carried E.L. into his dorm room, the co-defendants followed.
Defendant attempted to wake up his roommate, Mr. Prioleau. Co-defendant Batey began
touching E.L. and removing clothes. Co-defendant McKenzie identified himself in the
photographs of the offenses; he stood near the doorway and wore a white shirt and blue
and white shoes. He identified Defendant’s voice on the videos of the offenses;
Defendant stated, “We have this b[***]h in here[,]” and “We’re going to f[**]k her.”
Defendant then “grabbed condoms out of the dresser drawer and passed the box around.”
Co-defendant McKenzie testified that “everyone” took a condom. Co-defendant
McKenzie recalled that Co-defendant Batey digitally penetrated E.L.’s vagina and that
Co-defendant Banks squeezed a bottle that had been inserted into E.L.’s anus. Co-
defendant McKenzie also testified that Co-defendant Batey penetrated E.L.’s vagina and
mouth with his penis while Defendant filmed the offenses. Additionally, Co-defendant
McKenzie testified that, prior to sitting on E.L.’s face with his genitals exposed, Co-
defendant Batey stated that “he had never had his a[**] ate before.” Co-defendant
McKenzie testified that, after Defendant filmed Co-defendant Batey penetrating E.L.,
Defendant “grabbed his laptop and turned on porn, and grabbed a bottle of water and put
it on himself in an attempt to get a hard on.” Defendant was unable to achieve an
erection and stated that “he had done to[o] much coke.” Co-defendant Batey slapped
E.L.’s buttocks five or more times. When Co-defendant McKenzie stated that E.L. would
wake up, Defendant said “she’s not going to wake up” and also slapped E.L.’s buttocks.
Next, Co-defendant Batey stated that he was going to urinate on E.L., and he proceeded
to do that. Co-defendant McKenzie admitted that he took a condom from Defendant and
took a photograph and video on Co-defendant Batey’s phone at Co-defendant Batey’s
request.

       Regarding Defendant’s apparent level of intoxication, Co-defendant McKenzie
stated that this was his first interaction with Defendant; however, he could tell that
Defendant was “kind of” drunk but stated that Defendant was able to communicate and
walk without assistance. Co-defendant McKenzie described Defendant as “amped,”
“aggressive,” and “bossy.” Co-defendant McKenzie stated that he was unaware that
Defendant’s roommate, Mr. Prioleau, was in the room until Defendant attempted to wake
him up. After the offenses occurred, Defendant and Co-defendants McKenzie and Banks
left Defendant’s room and went into the bathroom. Co-defendant McKenzie stated that
                                          - 20 -
he and Co-defendant Banks were “freaking out” but that Defendant “assured” them that
“everything would be okay.” While they were in the bathroom, Defendant flushed their
condoms down a toilet. After Defendant and Co-defendants McKenzie and Banks left
the bathroom, Defendant asked them to help him carry E.L. back to her vehicle. Co-
defendants McKenzie and Banks refused, and Defendant “put a towel over his head and
went and covered the camera.” Co-defendant McKenzie testified that Defendant put E.L.
in the hallway outside his dorm room.

        Defendant and Co-defendants McKenzie, Batey, and Banks met the day after the
offenses in a dorm room. Co-defendant McKenzie stated that a teammate had received a
video of the offenses, and the teammate questioned Co-defendant McKenzie about the
video because the teammate recognized Co-defendant Batey and Co-defendant McKenzie
on the video. Defendant and Co-defendants McKenzie, Batey, and Banks met to discuss
how aware E.L. was of what had occurred during the offenses. Co-defendant McKenzie
asked Co-defendant Batey if he penetrated E.L. during the offenses, and Co-defendant
Batey responded that he had. Defendant stated that he was going to call E.L. over to his
room and have sex with her. After the Vanderbilt University Student Conduct officials
questioned Defendant and Co-defendants McKenzie, Batey, and Banks, the four men met
at a Popeye’s restaurant and discussed what each had told the Student Conduct officials
about the offenses. Co-defendant McKenzie admitted that he lied to the Student Conduct
officials. He also lied when he spoke with the MNPD on June 27, 2013. At his first
meeting with the MNPD and the District Attorney’s Office, Co-defendant McKenzie’s
statement contained some truthful information and some false information; Co-defendant
McKenzie admitted that he exaggerated how intoxicated Defendant and Co-defendants
Banks and Batey were during the offenses. Co-defendant McKenzie testified that he was
truthful in his interview with the District Attorney’s Office after he was charged for the
current offenses.

       During cross-examination, Co-defendant McKenzie agreed that when he spoke
with Detective Mayo on June 27, he stated that “nothing happened” to E.L. while he was
in Defendant’s dorm room. He also informed Detective Mayo that he did not observe
anyone take a photograph or video of E.L. Co-defendant McKenzie also agreed that in
his interview with MNPD on July 17, 2013, he stated that Defendant and Co-defendant
Batey were intoxicated to the point that they “didn’t know what [they] w[ere] doing[.]”
Additionally, he agreed that during the July 17 interview, he stated that Defendant was
“freaking out” about what happened in his room. On redirect examination, Co-defendant
McKenzie explained that Defendant was “bossy” and “in control” during the offenses
because Defendant pushed Co-defendants McKenzie and Batey off the elevator, handed
out condoms, and covered the camera.



                                          - 21 -
        Mr. Prioleau testified that he was a senior at Vanderbilt University. In June 2013,
Mr. Prioleau lived in Gillette Hall on Vanderbilt’s campus; he and Defendant were
roommates. On the evening of Saturday, June 22, he spent time with a friend on the sixth
floor of Gillette Hall and returned to his and Defendant’s room “sometime after
midnight[.]” In the early morning hours of June 23, Mr. Prioleau woke up and saw four
other football players in the room with the lights on; he identified these individuals as
Defendant and Co-defendants Banks, Batey, and McKenzie. From his location in the top
bunk of the bunk bed, Mr. Prioleau also observed a female lying face down on the floor
of the bedroom. “Throughout the night, [Mr. Prioleau] heard them use the F word in
regards to having sex with her. [Mr. Prioleau] heard [Defendant] say he couldn’t get an
erection due to cocaine use at some point.” Additionally, Mr. Prioleau heard
pornography playing on a computer. He did not hear E.L. make any noise while she was
in the bedroom. As soon as Defendant and Co-defendants Banks, Batey, and McKenzie
left the room, Mr. Prioleau also left; at that time, E.L. was in Defendant’s bed on the
bottom bunk. Mr. Prioleau went to the sixth floor of Gillette Hall and stayed with a
friend for the remainder of the night.

       Mr. Prioleau stated that Defendant kept condoms in a drawer in the room. When
Mr. Prioleau returned to the dorm room around noon on June 23, the room was empty.
Later that day, Defendant texted Mr. Prioleau to ask “if he could have the room to be
with a girl.” After speaking with Detective Mayo a few days later, Mr. Prioleau saw
Defendant and Co-defendants Banks, Batey, and McKenzie. Co-defendant Banks asked
Mr. Prioleau to “help them out[.]” Mr. Prioleau said “okay” and walked away.

       Special Agent Charley Castelbuono testified that she worked in the Forensic
Biology Unit of the Tennessee Bureau of Investigation (TBI). Defendant and the State
stipulated that Special Agent Castelbuono was an expert in the field of DNA analysis.
Special Agent Castelbuono received evidentiary items for testing from Detective Mayo.
She tested vaginal swabs from E.L. for the presence of semen and found that the DNA
profile of the sperm fraction matched Defendant as a minor contributor. She also tested a
green towel that Detective Mayo recovered near the door of the dorm room; Defendant
matched the DNA profile found on this item. Additionally, Special Agent Castelbuono
tested a green towel that Detective Mayo found hanging on the wall of the room. She
examined two stains on the item; the analysis of the first stain was inconclusive as to
Defendant and the second stain matched Defendant. Special Agent Castelbuono also
found Defendant’s sperm on the brown fitted sheet recovered from the lower bunk bed.

        On cross-examination, Special Agent Castelbuono stated that she found a few
sperm cells on E.L.’s panties that could have been from an old sperm stain or transferred
from another surface. Special Agent Castelbuono did not find enough male DNA from
this item to confirm an identity.
                                          - 22 -
       Mr. van der Wal testified that in June 2013, he lived in East Hall on the Vanderbilt
University campus. Mr. van der Wal stated that early in the morning on June 23, 2013,
Mr. Boyd received a phone call; based on that phone call, Mr. Boyd and Mr. van der Wal
walked to Gillette Hall with Mr. Retta. Mr. Woods met the three men at Gillette Hall.
As he entered the second floor of Gillette Hall, Mr. van der Wal observed “a female on
the ground with her dress above her midriff area. She was laying [sic] face down and
there were handprints on her . . . butt.” The female, E.L., was nude from the waist down.
Mr. van der Wal also observed a towel draped over the security camera in the hallway.
He stated that, after he arrived, Defendant, Mr. Boyd, and Mr. Woods carried E.L. into
Defendant’s dorm room and put her in Defendant’s bed. As Mr. van der Wal entered
Defendant’s dorm room, Mr. Prioleau got out of the upper bunk bed and left the room.
Mr. van der Wal stated that, after he left Defendant’s dorm room, he was “standing in the
hallway for a second and there was a video being shown.” Mr. van der Wal then returned
to East Hall with Defendant, Mr. Boyd, and Mr. Retta.

        While the group of men walked back to East Hall, Defendant told multiple
versions of what occurred with E.L. Defendant stated that “nothing happened, that he
was too drunk to remember[,]” and that “he attempted to have sex with her but couldn’t
get himself to do it” because Defendant was “too drunk to get an erection.” Defendant
also stated that Co-defendant Batey had sex with E.L. “and other people did as well.”
Additionally, Defendant stated that “there were condoms that were disposed of and then
there was a water bottle used in some way.” When the group arrived at East Hall,
Defendant went into Mr. Carta-Samuels’ room. Mr. van der Wal observed that, while
Defendant was in Mr. Carta-Samuels’ room, Defendant had Mr. Carta-Samuels’ phone in
his hand. Mr. van der Wal described Defendant as “intoxicated, but no more intoxicated
than any other night” when Mr. van der Wal socialized with Defendant. Mr. van der Wal
stated that Defendant was “conversing” and “walking without . . . assistance[.]” Mr. van
der Wal testified that Defendant spent the night in his room in East Hall. When Mr. van
der Wal woke up later in the morning of June 23, Defendant had left the room. Mr. van
der Wal met Defendant at Waffle House later that morning for breakfast, but Defendant
did not express concern for E.L. during their meeting.

       During cross-examination, Mr. van der Wal testified that he was aware that E.L.
and Defendant had a relationship prior to the offenses at issue. Mr. van der Wal clarified
that, while he ate breakfast at Waffle House later in the morning of June 23, Defendant
again told “multiple stories about what had happened.” Mr. van der Wal stated that
Defendant’s versions of the events “didn’t make sense.” He explained that Defendant
“was shocked that his other teammates had . . . had sex with her[;] he was telling it as if
he was shocked that it happened.”



                                          - 23 -
       Lauren Miller testified that in June 2013, she lived in the Village at Vanderbilt
Apartments as E.L.’s roommate. Ms. Miller stated that she was “extremely close friends”
with E.L. and that they were both members of Vanderbilt University’s dance team.
During the evening of June 22, 2013, Ms. Miller and E.L. hosted a gathering at their
apartment. After hanging out in the apartment kitchen and having a few drinks, E.L., Ms.
Miller, and their guests “got in a cab and went to Tin Roof” around midnight. After the
group arrived at Tin Roof, the group “started taking some pictures of [their] friends” and
greeted some people. Ms. Miller did not notice anything unusual about E.L.’s behavior
when the group arrived at Tin Roof. After the group took some photographs, they
“walked around the bar[.]” Ms. Miller greeted some friends from Vanderbilt and left
shortly after because she had to get up early the next morning. Ms. Miller observed E.L.
with Defendant before she left, and she stated that E.L. “seemed totally normal[.]” Ms.
Miller saw Defendant hand E.L. a drink before Ms. Miller left Tin Roof. Ms. Miller
stayed up until 3 a.m. on June 23 talking to a friend; she did not hear any unusual noise
outside of the apartment, did not hear a knock on the door, and did not receive any phone
calls.

       Ms. Miller saw E.L. in the early afternoon of June 23 when E.L. returned to the
apartment. She testified that she was “initially pretty shocked” by E.L.’s appearance.
Ms. Miller stated that E.L. was “extremely disheveled” and that her hair appeared to have
“gotten wet and then been dried again.” She also noticed “vomit encrusted in her hair.”
E.L.’s clothing “had a very strange consistency to them, and her shirt also had some
vomit encrusted on it.” Ms. Miller observed “a huge gash” on E.L.’s knee and small
bruises on her legs. Ms. Miller had not observed bruises on E.L.’s legs previously. E.L.
did not remember how she sustained the bruises and laceration, but she assumed she had
fallen. After changing clothes, E.L. and Ms. Miller met their friend Madison Jensen and
ate breakfast at Pancake Pantry. Ms. Miller stated that E.L. “kept getting progressively
and progressively more and more ill.” While waiting in line at Pancake Pantry, E.L.
stated that “she had never felt this sick before in her life and she just didn’t even know
what had happened to make her feel that sick.” During the evening of June 24, Ms.
Miller overheard a phone conversation between E.L. and Defendant. While on
speakerphone, Defendant told E.L. “that he was being accused of some things that he
would’ve never done and that it wasn’t fair, and that all he wanted to do was come over
and hang out with her and that sort of thing.” Defendant also stated that “he would’ve
never done what he was being accused of.” Ms. Miller testified that she and E.L. were
“really confused” about Defendant’s statements. A few days later, E.L. told Ms. Miller
that “she was having some pain on her rear end and kind of the back side of her legs.”
Ms. Miller observed “some pretty big bruises” on E.L.’s buttocks and took a photograph
to show E.L.



                                          - 24 -
       On cross-examination, Ms. Miller clarified that E.L. also consumed alcohol at
their apartment prior to going to Tin Roof. However, Ms. Miller did not mix E.L.’s
drinks, so she did not know how much alcohol E.L. consumed. She stated that she was
not concerned that E.L. stayed at Tin Roof with Defendant because “they had been
hanging out for a while, so [E.L. and Ms. Miller] trusted him.”

       Julianna Martel testified that, in June 2013, she lived in Nashville while taking an
organic chemistry class at Vanderbilt University and working part-time at Vanderbilt’s
football camps. She explained that she knew E.L. because they both participated on
Vanderbilt’s dance team. Ms. Martel met Defendant when he visited Vanderbilt’s
campus to learn about the football program. On June 22, 2013, Ms. Martel saw
Defendant at the Bristol Apartments. Around midnight, Ms. Martel arrived at Tin Roof
bar. She saw E.L. arrive shortly after with other members of the dance team. Ms. Martel
described E.L.’s behavior as “completely normal.” Ms. Martel also saw Defendant at Tin
Roof; she explained that she did not interact with him much, but she did not notice any
unusual behavior. Prior to leaving Tin Roof around 1:30 a.m., Ms. Martel spoke with
E.L. and noticed that she was holding “a blue drink[.]” Ms. Martel again described
E.L.’s behavior as normal.

        Elizabeth Parnell testified that she was a women’s health nurse practitioner and
that she was “certified as a Sexual Assault Nurse Examiner for adults.” Defendant and
the State stipulated that Ms. Parnell was an expert in sexual assault examinations. On
June 26, 2013, Detective Mayo asked Ms. Parnell to travel to the emergency department
of Vanderbilt University Medical Center. Ms. Parnell met with E.L. in a triage room and
discussed E.L.’s health history and her reason for being at the hospital. E.L. told Ms.
Parnell that she remembered being at Tin Roof with friends around midnight, but she
could not remember anything until she woke up around 8 a.m. in Defendant’s dorm
room. Because more than seventy-two hours had passed between the offenses and Ms.
Parnell’s examination of E.L., Ms. Parnell explained that it was difficult to collect
evidence. Ms. Parnell noted that E.L. had bathed, changed clothes, and engaged in other
activities that could have reduced evidence since the offenses occurred. E.L. reported to
Ms. Parnell that “she drank more than usual” on the night of the offenses. E.L. also
informed Ms. Parnell that she had consensual vaginal intercourse around 5 p.m. on June
23.

       E.L. signed a consent form, and Ms. Parnell conducted a physical examination of
E.L.’s person. Ms. Parnell also noted “physical trauma on her extremities and her
buttocks.” She observed a scabbed wound immediately below E.L.’s right knee and
bruises on the front of E.L.’s left thigh, below her left buttocks, on her right buttocks, and
on her left calf. Ms. Parnell also observed scratches on E.L.’s right and left ankles. Ms.
Parnell did not observe any visible trauma to E.L.’s vaginal wall or her rectum. Ms.
                                            - 25 -
Parnell collected “pubic hair combings, labia swabs, vaginal swabs, a rectal swab, two
perianal swabs, two gumline swabs, the DNA buccal swabs from the inside of her cheeks
. . . , and then two swabs of . . . vaginal pool.” Ms. Parnell additionally collected blood
from E.L.

        E.L. testified that in June 2013, she was a rising senior at Vanderbilt University
and lived at the Village at Vanderbilt with her roommate, Ms. Miller. E.L. met
Defendant approximately two weeks prior to the offenses at issue. On the afternoon of
June 22, 2013, E.L. spent some time with friends at her apartment. She had one mixed
drink before she and her friends took a cab to Tin Roof around midnight. When she
arrived at Tin Roof, she “took some pictures with some friends and said hi to people.”
She saw Defendant when she arrived; she was happy to see him, and Defendant “seemed
happy, socializing, [and] normal.” E.L. drank a gin and tonic mixed drink and stood with
a group of people socializing. E.L. drank a second drink–a Red Bull and vodka mixed
drink that Defendant took from a bartender and poured into her cup. E.L. drank a third
drink, a shot of whiskey that Defendant took from a bartender and gave her. E.L.’s fourth
drink was “blue and in a clear cup.” E.L. explained that she did not see the bartender
pour this drink but that Defendant brought her the drink. Defendant told E.L. that the
blue drink was the California version of a Long Island Iced Tea and that E.L. needed to
try it. Defendant gave E.L. another shot, but she “had taken a sip or two of the blue drink
and [she] was starting to feel a little intoxicated, so [she] gave that shot to somebody
else.” E.L. could not remember if she finished the blue drink.

        E.L.’s next memory was “waking up in an unfamiliar room around 8 a.m. the next
morning” on June 23. E.L. stated that she was clothed and lying in a bed; she was alone
in the room. E.L. stated that she felt “off and confused and scared.” She noticed that her
keys and phone were sitting on top of a dresser near the bed, but she could not find her
shoes. She exited the room and realized that she was in Gillette Hall, so she knocked on
Jake Bernstein’s door across the hall from the room that she woke up in. Mr. Bernstein
did not immediately answer the door, so E.L. called him and he let her into his room.
E.L. also texted Defendant to “figure out what was going on.” E.L. left Gillette Hall
between 11 a.m. and noon; her vehicle was parked in front of Gillette Hall when she
exited the dorm. She “had no idea” how her vehicle had gotten there. As E.L. drove her
vehicle back to her apartment, she noticed “blood smeared across the glove box in front
of the passenger seat.” E.L. “notice[d] how [she] was in a lot of pain everywhere, and
particularly [her] left shoulder hurt and also [her] left wrist, and [she] had a wound on
[her] right knee that was actively bleeding.” When E.L. arrived at her apartment, her
roommate, Ms. Miller, was worried for her. E.L. “quickly changed and just quickly
rinsed off”; she noticed that her hair had gotten wet and dried overnight. After changing,
E.L. went to eat with Ms. Miller.

                                          - 26 -
        E.L. conversed with Defendant throughout the day of June 23. Defendant told her
that she “had gotten sick in his room and he had to spend the whole night taking care of
[her], it was so horrible for him, and he was not happy about it.” Eventually, Defendant
asked E.L. to come to his room in Gillette Hall around 5 or 6 p.m. E.L. and Defendant
discussed the previous night, and Defendant told her again that she threw up in his room
and that he cleaned it up. When E.L. pressed Defendant for more details about the
previous night, Defendant said that he did not want to talk about it because “it was
horrible.” After E.L. and Defendant spoke for a while, Defendant “suddenly started
being very nice” and “eventually he kind of suddenly initiated intercourse.” Defendant
did not wear a condom during the intercourse.

       After hearing Defendant’s version of the events of the evening of June 22 and
early morning of June 23, E.L. learned more information “that was not consistent with
what [Defendant] had been telling [her.]” On the morning of June 26, officers from VPD
contacted E.L. She stated that her “biggest concern at that time was trying to protect
him” so that Defendant would not be removed from the Vanderbilt football team. During
her interview with VPD, E.L. saw some still photographs from the video surveillance
recorded in Gillette Hall during the offenses. E.L. agreed to undergo a medical-legal
exam at Vanderbilt University Medical Center; however, she stated that she “was worried
that [Defendant] would be mad at [her] because he would have to give a cheek swab if
[she] got the examination.”

      E.L. stated that she had no memory of her movements in Gillette Hall between 4
a.m. and 8 a.m. on June 23. E.L. did not know Co-defendants McKenzie, Batey, or
Banks at the time the offenses occurred. E.L. testified that she did not give Defendant or
Co-defendants McKenzie, Banks, and Batey permission to touch her.

       On cross-examination, E.L. agreed that she met Defendant in early 2013 when
Defendant visited Vanderbilt University on a recruiting trip. She agreed that she “saw”
Defendant three or four times in June prior to the current offenses, including earlier in the
week of June 22. Regarding the evening of June 22, E.L. recalled that she made her own
drink at her apartment and used three ounces of gin. E.L. agreed that she drank more
than usual at Tin Roof. She also agreed that she had blacked out previously but stated
that she had never passed out from consuming alcohol; she stated that she walked around
and spoke to people during the previous blackout.

       After the State rested, Defendant moved the trial court to read Ms. Martel’s
testimony that was proffered outside the presence of the jury into the record. The trial
court allowed the testimony to be read to the jury. During the jury-out testimony, Ms.
Martel agreed that in July 2013, she told Detective Zocola that E.L. told her that a woman
named Angie gave E.L. the blue drink. On cross-examination, Ms. Martel stated that she
                                           - 27 -
“never saw the drink being purchased and [she] never saw it being handed off.” Ms.
Martel only saw the blue drink in E.L.’s hand.

      The State made the following election of offenses for counts one through seven:

      Count [o]ne of the [i]ndictment alleges an act of aggravated rape against
      [E.L.] and refers to the following conduct: [Co-defendant] Banks
      penetrating the anus of [E.L.] with an object while [E.L.] was unconscious
      on the floor of the dorm room located in Gillette Hall on Vanderbilt
      University campus.

      Count [t]wo of the [i]ndictment alleges an act of aggravated rape against
      [E.L.], and refers to the following conduct: the digital penetration of
      [E.L.]’s vagina by [Co-defendant] Batey while [E.L.] was unconscious on
      the floor of the dorm room located in Gillette Hall on Vanderbilt University
      campus.

      Count [t]hree of the [i]ndictment alleges an act of aggravated rape against
      [E.L.], and refers to the following conduct: the digital penetration of
      [E.L.]’s anus by [Co-defendant] Batey while [E.L.] was unconscious on the
      floor of the dorm room located in Gillette Hall on Vanderbilt University
      campus.

      Count [f]our of the [i]ndictment alleges an act of aggravated rape against
      [E.L.], and refers to the following conduct: an act of fellatio upon [E.L.]’s
      mouth or lips by [Co-defendant] Batey while [E.L.] was unconscious on the
      floor of the dorm room located in Gillette Hall on Vanderbilt University
      campus.

      Count [f]ive of the [i]ndictment alleges an act of aggravated rape against
      [E.L.], and refers to the following conduct: the penile penetration of
      [E.L.]’s vagina by [Co-defendant] Batey while [E.L.] was unconscious on
      the floor of the dorm room located in Gillette Hall on Vanderbilt University
      campus.

      Count [s]ix of the [i]ndictment alleges an act of aggravated sexual battery
      against [E.L.], and refers to the following conduct: the touching of the
      primary genital area of [E.L.] by [Co-defendant] Banks while [E.L.] was
      unconscious on the floor of the dorm room located in Gillette Hall on
      Vanderbilt University campus.

                                         - 28 -
      Count [s]even of the [i]ndictment alleges an act of aggravated sexual
      battery against [E.L.], and refers to the following conduct: [Co-defendant]
      Batey placing his buttocks on [E.L.]’s face while [E.L.] was unconscious
      on the floor of the dorm room located in Gillette Hall on Vanderbilt
      University campus.

       The jury found Defendant guilty of aggravated rape in counts one through five, of
aggravated sexual battery in counts six and seven, and of unlawful photography in count
eight.

                                   Sentencing hearing

       At Defendant’s sentencing hearing, the State argued that Defendant was a standard
offender. The trial court admitted the presentence report. The trial court considered an
audio recording of an interview of Mr. Finley as well as a sworn affidavit from Mr.
Finley. During the interview, Mr. Finley stated that he overheard a conversation between
Defendant and Mr. Quinzio; Defendant told Mr. Quinzio that he had attempted to give a
date rape drug to a female acquaintance, Angelica LaVecchia, but he was unsuccessful
because he did not crush the pill up. The trial court entered a victim impact statement
from E.L., which stated the following:

              I had intended to give a detailed Victim Impact Statement at today’s
      sentencing hearing specific to the effects of [Defendant]’s actions. As a
      result of the last sentencing hearing in this case, that is no longer something
      I’m able to do. I ask that my prior statement be referenced. Also, two
      professionals who have helped me through this and witnessed the impact on
      me have submitted letters to you describing what they have seen; and I ask
      that you consider those.

            Please do not use my absence as an excuse for leniency as it in no
      way diminishes the profound and insidious impact of [Defendant] on me
      and my life. I still ask that he receive the full sentence allowed under the
      law for orchestrating a sustained thirty-minute gang rape against me, a
      defenseless woman who trusted him. The minimum sentence is not enough
      for what this man did to me.

      E.L.’s prior victim impact statement set out the following:

             It’s hard for me to stand here on display and speak to you today
      about the impact this has had on my life. The thought of sharing any more

                                          - 29 -
of myself that hasn’t already been taken from me seems unbearable, and it
goes against every instinct that I have.

       I was fearful of giving a victim impact statement at all because I
know that after three years and everything that has happened, I can never
do it justice, and I’m scared of that failure. It will never be possible for
anyone to put into words how this has affected me. You will never
understand what this has done to me if you aren’t standing in my shoes.
The humiliation, the pain, the isolation, being reduced to nothing but a
piece of flesh right before your eyes, it does something to you that is truly
impossible to describe.

        I also know that it’s hard to encapsulate the impact this has had
because it is still ongoing. The attack on me didn’t end that day because I
relive it in every proceeding and experience additional attacks every time I
am in court.

       When I let myself think of this[,] I become so angry and feel so
powerless, even today, that speaking coherently about it at all is a
challenge.

       There are no words to describe the horror of those images from that
night and how it feels to watch yourself be dehumanized.

       A detective showed me some of those photos and videos that you
and forty-two jurors have now seen so many times, and what I saw was
image after image of my genitalia covering the entire frame on the screen.
These stark, alien-looking fingers all over the flesh were moving from
frame to frame, with multiple hands reaching in. Videos played, and I
heard the laughing. I heard the degrading, taunting voices.

       My memory of the images I was shown then starts to flash in and
out. The realization of all the different ways that they raped me, that people
can see these close up pictures of my body, the unknown of what was done
to me in those thirty minutes that wasn’t recorded-it was incomprehensible.
I wanted to run away and never stop running.

       At one point[,] I saw what I first thought was a dead woman’s face.
I was suddenly overwhelmed by my memory of a family member’s corpse,
and then I realized that it’s me. They had taken a picture of my face during

                                    - 30 -
      the attack. I was lifeless and my face was covered in something shiny. I
      didn’t recognize myself.

             Something permanent snapped that day. I felt myself detach from
      my body. Now, I feel like I’m walking around in the shell of someone else.
      A part of me went numb, a sense of being a whole person with hopes and
      dreams about what’s possible in the world was now gone.

              I was twenty-one years old when this happened. I’m twenty-four
      today. Since the horror of that night, all I have wanted is for this to be
      behind me, to be left alone and try to live my life in peace, but the process
      to get justice has been a never-ending, constant misery that has twisted
      itself so into my life that I can’t even remember what it was like in a time
      when this wasn’t happening. Everything . . . [D]efendant has done in this
      case and the media circus surrounding it have been a continuous disruption
      repeatedly dragging me back every step I try to take forward. I can only
      feel that . . . [D]efendant has intentionally wanted this to be as tortuous for
      me as possible.

              What happened to me that night has been compounded by the live-
      streaming, tweeting, and international dissemination of every detail of how
      I was degraded and humiliated for all posterity. In this age of technology,
      anyone I ever meet in my personal or professional life can learn I am a rape
      victim and the details of the case before I’ve even fully introduced myself
      to them. There is no way for me to even know if any given person I
      interact with has done so. This is something I now have to expect for the
      rest of my life.

             Again, the attack on me didn’t end that day because I have to relive
      it in every proceeding and am constantly experiencing additional attacks.
      The fact that I even had to breathe the same air as the men who did this to
      me ever again . . . is unthinkable. But, I have endured all of this because
      the details of the rape are so horrific, and there is so much irrefutable
      evidence, I knew that they had to be stopped and held accountable.

            This is a serious violent crime, and it must receive the enhanced
      punishment it deserves. Any victim should know they would have justice if
      they went through the process.

     Additionally, the trial court admitted letters from two mental health professionals
who worked with E.L. that discussed the impact of the offenses on E.L. E.L. received
                                          - 31 -
therapy during the summer of 2015. Dr. Nancy Cook stated that “[i]n spite of significant
effort on her part, [E.L.] reported persistent and recurrent distressing recollections of the
images and sounds, a sense of powerlessness and hopelessness, irritability, difficulty
concentrating and hypervigilance.” Dr. Cook diagnosed E.L. with Post-Traumatic Stress
Disorder (“PTSD”). Dr. Cook explained that because E.L. had to attend multiple trials
and proceedings related to the offenses, she relived the trauma of the offenses, which
“continually disrupt[ed] her academic planning and her emotional sense of wholeness.”
Additionally, Dr. Cook stated that the offenses “caused serious, long-term identifiable
emotional impacts and significant neurological changes in [E.L.’s] body.” Dr. Cook
stated that E.L. would need to continue therapy because of the significant trauma. Wanda
Swan, Director of The Respect Program at Emory University, stated in her letter that she
assisted E.L. as her on-campus crisis counselor. Ms. Swan stated that E.L.’s former
friends, dance team members, and coaches “harass[ed] and bull[ied] her, minimize[d] her
trauma, encourage[d] her to ‘just be normal,’ blame[d] her for the assault, and
question[ed] her judgment.” Additionally, Ms. Swan stated that “[t]here are pieces,
definitive properties of [E.L.’s] personality, character, mental and emotional capacity that
she will never be able to reunite with.”

       The trial court also entered a letter from Reverend Kevin Riggs, who worked with
Defendant in the Jobs for Life program while Defendant was incarcerated. Reverend
Riggs stated that Defendant successfully completed the Jobs for Life class while
incarcerated. Additionally, the trial court entered a statement of Ms. LaVecchia and a
police report on the alleged incident between Defendant and Ms. LaVecchia. Ms.
LaVecchia stated that she was unaware of allegations that Defendant put a date rape drug
in her drink. The State and Defendant stipulated that Mr. Quinzio stated in an interview
that he did not remember Defendant mentioning incidents involving date rape drugs.

        Defendant called Pernilla Linner, who testified that she lived in LaQuinta,
California, and knew Defendant because she had been friends with Defendant’s mother
for over twenty years. Ms. Linner stated that, in her interactions with Defendant, he was
always “very, very polite[,]” “very respectful[,]” and “[v]ery kind.” Ms. Linner also
testified that Defendant was respectful when playing sports with her children.
Additionally, she stated that Defendant was “kind of like a father figure” to his brothers;
she described Defendant as “a perfect sibling.” On cross-examination, Ms. Linner stated
that she was not aware that Defendant used illegal steroids and cocaine and consumed
alcohol while under the age of twenty-one. However, she stated that this knowledge did
not change her opinion of Defendant.

       Frank Gill testified that he met Defendant three years prior to the sentencing
hearing when Mr. Gill volunteered in a prison ministry. Mr. Gill did not believe that

                                           - 32 -
Defendant would be a danger to the community after serving his sentence. Mr. Gill also
testified that Defendant had “tremendous potential” for rehabilitation.

       Shannon Fix testified that she lived in Palm Desert, California, and that Defendant
was “like a nephew to [her].” She explained that she had known Defendant for
approximately seven years because Defendant’s brothers were friends with her son. Ms.
Fix testified that Defendant watched over her three children and that she was comfortable
leaving Defendant alone with her children. She stated that Defendant transferred from
the University of San Diego to a local community college when one of his brothers was
diagnosed with retinitis pigmentosa; Defendant volunteered to coach his brothers’
football team, drove his brothers to medical appointments and school, and helped them
with homework. Ms. Fix stated that Defendant regularly attended religious services with
his family and described Defendant as “endearingly naive, very cerebral, [and] very
bright.” On cross-examination, Ms. Fix testified that Defendant expressed remorse that
he had not done more to help E.L. and stop the offenses.

       Defendant gave an allocution and expressed his remorse for his involvement in the
offenses. He apologized to E.L. and stated that he was “ashamed of [him]self and that
[he] was so irresponsible with alcohol, which le[d] to something tragic.”

        The trial court stated that it had considered “the evidence that was presented at
trial, all of the motions that were heard, the sentencing hearing, Presentence Report, the
evidence at the sentencing hearing, Principles of Sentencing, arguments of counsel, the
nature of the criminal conduct involved here, as well as the enhancement and mitigating
factors.” The trial court found that “the victim was particularly vulnerable because of her
physical incapacity[,]” “the victim suffered psychological injuries as a result of this
incident[,]” and that Defendant abused a position of private trust because he “formally or
informally stood in a relationship to the victim that promoted confidence, reliability and
faith[.]” The trial court also found that Defendant was a leader in the commission of the
offenses because “he [wa]s the one that could have stopped this incident.”

        The trial court additionally found that Defendant “did not have any prior criminal
convictions[,]” that Defendant had “a lot of family and community support,” and that
Defendant “may be remorseful, seemed remorseful at least.” The trial court concluded
that “the enhancement factors outweigh[ed] the mitigating factors in this particular case.”
The trial court sentenced Defendant, as a Range I standard offender, to serve seventeen
years each for counts one through five, aggravated rape, nine years each for counts six
and seven, aggravated sexual battery, and two years for count eight, unlawful
photography. The trial court ordered all the sentences to run concurrently for a total
effective sentence of seventeen years in the Tennessee Department of Correction.

                                          - 33 -
       Defendant filed a timely motion for new trial. He argued, in pertinent part, that (1)
the evidence was insufficient; (2) the trial court erred in denying his motions to dismiss
the superseding indictment; (3) the trial court erred in excluding the testimony of Dr. J.
Sidney Alexander; (4) the trial court erred in denying Defendant’s motion to strike the
venire during voir dire or to grant additional peremptory strikes; (5) the trial court erred
by failing to admonish the prospective jurors at the beginning of voir dire; (6) the trial
court erred by instructing the jury on “presence and companionship” regarding criminal
responsibility; (7) the trial court erred in excluding evidence of the prior bad acts of Co-
defendants Batey, Banks, and McKenzie; (8) the trial court erred in excluding
Defendant’s voicemail that he left on Mr. Quinzio’s phone; and (9) the trial court erred in
denying Defendant’s motion to suppress his statement from June 27, 2013. The trial
court denied Defendant’s motion for new trial. Defendant now timely appeals.

                                        II. Analysis

                 (1) Denial of motion to dismiss superseding indictment

        Defendant argues that the trial court violated “his rights to due process and
protection against double jeopardy under the Tennessee Constitution, Art. 1, § 10, and the
Fifth Amendment of the United States Constitution” by denying his motion to dismiss the
superseding indictment. He asserts that the trial court should have dismissed the
superseding indictment because jeopardy attached to the original indictment when the
trial court swore in the jury at Defendant’s first trial. Defendant argues that the original
indictment failed to charge aggravated rape and aggravated sexual battery and contends
that the State was “prohibited from adding offenses to the superseding indictment when it
failed to include them in the original indictment.” Additionally, he asserts that none of
the exceptions to the mandatory joinder rule apply in this case, so the State should have
joined the charges of aggravated rape and aggravated sexual battery to the charges of
assault in the original indictment. Further, he argues that the State engaged in
prosecutorial vindictiveness by seeking a superseding indictment. In his reply brief,
Defendant argues that he should have been retried on the original indictment because
jeopardy attached to the original indictment at the first trial, and therefore, the State was
prohibited by Tennessee Rule of Criminal Procedure 7(b) from amending the indictment
without Defendant’s consent.

       The State responds that Defendant’s second trial did not violate double jeopardy
principles because double jeopardy does not preclude the retrial of Defendant. The State
argues that the jeopardy from Defendant’s first trial did not terminate when the trial court
granted Defendant’s motion for a new trial; essentially, the jeopardy from the first trial



                                           - 34 -
“continued” to the superseding indictment.9 Additionally, the State contends that the
issuance of the superseding indictment did not violate double jeopardy principles because
“the superseding indictment was issued well before the second trial, giving . . .
[D]efendant ample notice of the charges.” Further, the State asserts that Defendant
received adequate notice of the charges in the superseding indictment because it charged
the same offenses as the initial indictment except for the omission of the destruction of
evidence charge. The State argues that it properly exercised its discretion by obtaining a
superseding indictment that clarified “that the aggravated rape and aggravated sexual
battery charges were based on the incapacity of the victim.”

       On August 9, 2013, the Davidson County Grand Jury returned an eight-count
indictment against Defendant and Co-defendants Banks, Batey, and McKenzie. Counts
one through five alleged aggravated rape and used the following language:

              THE GRAND JURORS of Davidson County, Tennessee, duly
        impaneled and sworn, upon their oath, present that:

               BRANDON E. BANKS, CORY LAMONT BATEY, [Defendant],
        and JABORIAN DASHON MCKENZIE between the 22nd day of June,
        2013, and the 23rd day of June, 2013, in Davidson County, Tennessee and
        before the finding of this indictment, did intentionally, knowingly, or
        recklessly engage in unlawful sexual penetration of [E.L.] and Brandon E.
        Banks, Cory Lamont Batey, [Defendant], and Jaborian Dashon McKenzie
        were aided or abetted by one or more other persons, in violation of
        Tennessee Code Annotated § 39-13-502, and against the peace and dignity
        of the State of Tennessee.

      Counts six and seven alleged aggravated sexual battery using the following
language:

              THE GRAND JURORS of Davidson County, Tennessee, duly
        impaneled and sworn, upon their oath, present that:

              BRANDON E. BANKS, CORY LAMONT BATEY, [Defendant],
        and JABORIAN DASHON MCKENZIE between the 22nd day of June,

        9
          We note that Justice Holmes’ concept of “continuing jeopardy” set out in Kepner v. United
States, 195 U.S. 100, 134 (1904) (Holmes, J., dissenting), has been cited disapprovingly in numerous
decisions of the United States Supreme Court. Swisher v. Brady, 438 U.S. 204, 225 (1978); United States
v. Scott, 437 U.S. 82, 90 n.6 (1978); Breed v. Jones, 421 U.S. 519, 534-35 (1975); United States v.
Jenkins, 420 U.S. 358, 369 (1975); Green v. United States, 355 U.S. 184, 189, 192 (1957); Seiber v. State,
542 S.W.2d 381, 385 (Tenn. Crim. App. 1976) (citing Breed, 421 U.S. at 533).
                                                 - 35 -
        2013, and the 23rd day of June, 2013, in Davidson County, Tennessee and
        before the finding of this indictment, did intentionally engage in unlawful
        sexual contact with [E.L.], and Brandon E. Banks, Cory Lamont Batey,
        [Defendant], and Jaborian Dashon McKenzie were aided or abetted by one
        or more other persons, in violation of Tennessee Code Annotated § 39-13-
        504, and against the peace and dignity of the State of Tennessee.

       The record on appeal includes a document entitled Defendant’s “Memorandum of
Law Regarding Counts 1 Through 7 of Indictment[.]”10 In this memorandum, Defendant
argued that “[c]areful examination of Counts 1 through 7 of the instant indictment shows
that the only criminal offense as to which every element is alleged is assault in violation
of Tennessee Code Annotated § 39-13-101(a)(3)[.]” Thus, Defendant asserted that the
language of counts one through five in the indictment failed to allege “force, coercion, a
weapon or any other article.” Defendant also noted that the indictment of counts one
through five failed to allege bodily injury or that “any defendant knew or had reason to
know that the victim was mentally defective, mentally incapacitated or physically
helpless.” Defendant alleged that the indictment for counts six and seven similarly failed
to allege aggravated sexual battery under Tennessee Code Annotated section 39-13-
504(a)(3). In its response, the State argued that “[a]n indictment which references the
statute defining the offense is sufficient and satisfies the constitutional and statutory
requirements of [State v. Hill, 954 S.W.2d 725 (Tenn. 1997)], giving the accused
sufficient notice of the charged offense.”

       During a jury-out hearing in Defendant’s first trial, Defendant alleged that “the
facts found by the Grand Jury only make out a misdemeanor offense of assault.”
Defendant asked the trial court to instruct the jury only on assault. The trial court noted
that the State charged alternative theories in the aggravated rape and aggravated sexual
battery counts and elected to proceed on the allegation that E.L. was mentally
incapacitated during the offenses. The trial court found that the Davidson County Grand
Jury indicted Defendant and Co-defendants Banks, Batey, and McKenzie with aggravated
rape and aggravated sexual battery. The trial court concluded that “the parties ha[d] been
given sufficient notice[.]” The jury found Defendant guilty of four counts of aggravated


        10
           This memorandum of law was not accompanied by a motion in the record. In a later filing,
Defendant stated that he was “not intending to move the Court for any relief but rather submitting
authority for why the Court shouldn’t charge more than what has been indicted.” Further, this filing,
titled “DEFENDANTS’ REPLY TO THE STATE’S ‘RESPONSE’ REGARDING COUNTS 1-7 OF
THE INDICTMENT” (hereinafter “Reply”), states that Defendant “has never claimed that any count of
the indictment is defective, and . . . Defendant does not seek relief based on any alleged defect.” Instead,
Defendant “ask[ed] the Court to instruct the jury on the sole offense that the facts found by the grand jury
makes out and to decline to instruct on any other or greater offense.”
                                                  - 36 -
rape, one count of attempted aggravated rape, two counts of aggravated sexual battery,
one count of tampering with evidence, and one count of unlawful photography..

        On June 15, 2015, 139 days after the jury found him guilty, Defendant filed a
motion for mistrial or, in the alternative, a motion to set aside the verdict on the basis that
the jury foreperson made a material misrepresentation during voir dire. At the motion
hearing on the same day,11 the jury foreperson gave testimony that “was inconsistent with
the answers provided during voir dire.” On June 23, 2015, the trial court granted
Defendant’s motion; the trial court’s order notes that Defendant “did not request a new
trial pursuant to Rule 33 out of concern that [he] may waive any appellate issues.” The
trial court stated that, “as a practical matter, a new trial, if granted, would have to be
pursuant to Rule 33 of the Tennessee Rules of Criminal Procedure.” The trial court
stated that “[a] mistrial is granted prior to the verdict in a trial” and that a defendant could
challenge juror misconduct in a motion for new trial. The trial court cited to State v.
Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993), for the conclusion that “[w]hen
conduct becomes apparent after the jury has rendered a verdict, a new trial is the
appropriate remedy.” The trial court concluded that the jury foreperson committed
misconduct when he failed to disclose during voir dire that he was the named victim in a
twenty-three count indictment in a statutory rape case and granted Defendant’s motion.

       On July 7, 2015, the Davidson County Grand Jury returned a superseding
indictment charging Defendant and Co-defendants Banks, Batey, and McKenzie with five
counts of aggravated rape, two counts of aggravated sexual battery, and one count of
unlawful photography. The aggravated rape counts alleged the following:

              THE GRAND JURORS of Davidson County, Tennessee, duly
        impaneled and sworn, upon their oath, present that:

               BRANDON E. BANKS, CORY LAMONT BATEY, [Defendant],
        and JABORIAN DASHON MCKENZIE on the 23rd day of June, 2013, in
        Davidson County, Tennessee and before the finding of this indictment, did
        intentionally, knowingly, or recklessly engage in unlawful sexual
        11
           The motion for mistrial was not included in the record on appeal. A transcript of this motion
hearing was also not included in the record on appeal. As we have previously noted, Defendant bears the
burden of preparing an adequate record on appeal. See Ballard, 855 S.W.2d at 560. Defendant’s burden
of preparing an adequate record on appeal includes the duty to “have prepared a transcript of such part of
the evidence or proceedings as is necessary to convey a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b). This court is
precluded from considering an issue presented for review when the record is incomplete and does not
contain a transcript of the proceedings relevant to the issue, or portions of the record upon which the
appellant relies. Ballard, 855 S.W.2d at 560-61 (citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn.
Crim. App. 1988).
                                                  - 37 -
       penetration of [E.L.] and Brandon E. Banks, Cory Lamont Batey,
       [Defendant], and Jaborian Dashon McKenzie did aid or abet each other in
       the commission of the offense and Brandon E. Banks, Cory Lamont Batey,
       [Defendant], and Jaborian Dashon McKenzie knew or had reason to know
       that [E.L.] was mentally incapacitated or physically helpless, in violation of
       Tennessee Code Annotated § 39-13-502, and against the peace and dignity
       of the State of Tennessee.

       The aggravated sexual battery counts alleged the following:

             THE GRAND JURORS of Davidson County, Tennessee, duly
       impaneled and sworn, upon their oath, present that:

              BRANDON E. BANKS, CORY LAMONT BATEY, [Defendant],
       and JABORIAN DASHON MCKENZIE on the 23rd day of June, 2013, in
       Davidson County, Tennessee and before the finding of this indictment, did
       intentionally engage in unlawful sexual contact with [E.L.], and Brandon E.
       Banks, Cory Lamont Batey, [Defendant], and Jaborian Dashon McKenzie
       did aid or abet each other in the commission of the offense and Brandon E.
       Banks, Cory Lamont Batey, [Defendant], and Jaborian Dashon McKenzie
       knew or had reason to know that [E.L.] was mentally incapacitated or
       physically helpless, in violation of Tennessee Code Annotated § 39-13-504,
       and against the peace and dignity of the State of Tennessee.

       On September 11, 2015, Defendant filed a “Motion to Dismiss Superseding
Indictment,” which argued that “[t]he superseding indictment allege[d] an additional
element in Counts 1-7 that was not alleged in the original indictment, specifically that the
defendants ‘knew or had reason to know that [the alleged victim] was mentally
incapacitated or physically helpless’ in the counts alleging aggravated rape and
aggravated sexual battery.”12 Defendant contended that the inclusion of additional or
different elements violated his protection against double jeopardy. He also asserted that
the jeopardy that attached to the original indictment continued due to the mistrial, and
therefore, the State should proceed under the original indictment.

       The State responded that it could properly proceed on the superseding indictment
because the trial court’s grant of a new trial “returned . . . Defendant to the same position
he was in prior to the first trial[.]” At a hearing on the motion on October 19, 2015, the
trial court found that “there [were] no new charges that [were] brought with the
superseding indictment, only an additional element.” The trial court stated that the grant

       12
            Second alteration in the original text.
                                                      - 38 -
of a new trial “place[d] the defendants back in the same position that they were initially
and, as such, . . . a superseding indictment can be brought[.]” On October 20, 2015, the
trial court filed an order denying Defendant’s motion to dismiss the superseding
indictment. The trial court found “that the indictment [wa]s appropriate and the charges
therein should not be dismissed.”

        On June 13, 2016, the first day of Defendant’s second trial, Defendant again filed
a motion to dismiss the superseding indictment and argued that the indictment violated
the prohibition against double jeopardy. The court minutes from that day reflect that the
trial court denied this motion. The trial court entered a written order denying the motion
on June 22, 2016, and again concluded that “[t]he superseding indictment which was
filed after the mistrial was not amended with additional charges nor does it require
joinder.”

        After the trial court swore in the jury, the State read the indictments, and
Defendant pled not guilty, Defendant filed a motion to dismiss the indictments.
Defendant argued that because jeopardy attached during the first trial and continued to
the second trial, he was placed in jeopardy twice for the same offenses once the jury was
sworn in the second trial. Defendant asserted that jeopardy continued from the first trial
because the trial court declared a mistrial. Defendant also argued that the State should
have proceeded on the original indictment because the State cannot obtain a superseding
indictment while jeopardy continues from a previous indictment. The State argued that it
had properly obtained a superseding indictment. The trial court denied the motion, and
the trial proceeded.

       Initially, we must determine whether the trial court granted a motion for mistrial or
a motion for new trial after the conclusion of Defendant’s first trial. Although Defendant
apparently filed a motion for mistrial, the trial court concluded that a new trial was the
appropriate remedy to address the juror misconduct that came to light after the jury
rendered its verdict and Defendant’s first trial concluded. “A mistrial is granted in a case
in which the jury is discharged without a verdict; a motion for new trial is made after a
judgment has been rendered.” State v. Terry Sanders, No. M2011-00426-CCA-R3-CD,
2012 WL 5948885, at *4 (Tenn. Crim. App. Nov. 15, 2012) (quoting Howell v. Davis,
299 S.E.2d 336, 337 (S.C. 1983)) (internal quotation marks omitted), perm. app. denied
(Tenn. Mar. 5, 2013). Because Defendant filed his motion after the jury rendered its
verdict and because the trial court essentially treated the motion as a motion for new trial,
we will interpret Defendant’s motion as a motion for new trial.




                                           - 39 -
                                   (A) Double jeopardy

       The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution, made applicable to the states through the Fourteenth Amendment, states,
“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V. Similarly, the Tennessee Constitution guarantees “[t]hat
no person shall, for the same offense, be twice put in jeopardy of life or limb.” Tenn.
Const. art. I, § 10. Both clauses provide three distinct protections: “(1) protection against
a second prosecution for the same offense after acquittal; (2) protection against a second
prosecution for the same offense after conviction; and (3) protection against multiple
punishments for the same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).

         A defendant acquitted of criminal charges may not be subjected to retrial on those
same charges. State v. Harris, 919 S.W.2d 323, 327 (Tenn. 1996); see also Ball v. United
States, 163 U.S. 662, 671 (1896). Additionally, “when a conviction has been set aside
because of insufficiency of the evidence, double jeopardy forbids giving the prosecution
‘another opportunity to supply evidence which it failed to muster in the first
proceeding.’” Harris, 919 S.W.2d at 327 (quoting Burks v. United States, 437 U.S. 1, 11
(1978)). However, a retrial of a defendant who has successfully appealed an issue other
than sufficiency of the evidence does not subject the defendant to double jeopardy. Id.
(citing Burks, 437 U.S. at 11; Ball, 163 U.S. at 672; State v. Campbell, 641 S.W.2d 890,
893 (Tenn. 1982)); see also Lockhart v. Nelson, 488 U.S. 33, 38 (1988) Jeffers v. United
States, 432 U.S. 137, 152 (1977); Price v. Georgia, 398 U.S. 323, 326 (1970); Green v.
United States, 355 U.S. 184, 189, 192 (1957). Further, “upon appellate reversal of a
conviction[,] the Government is not limited at a new trial to evidence presented at the
first trial, but is free to strengthen its case in any way it can by the introduction of new
evidence.” United States v. Shotwell Mfg. Co., 355 U.S. 233, 243 (1957). This is more
commonly known as the “clean slate” rule. See State v. Kacy Dewayne Cannon, No.
E2011-02624-CCA-R3-CD, 2012 WL 6049639, at *8 (Tenn. Crim. App. Dec. 5, 2012),
perm. app. denied (Tenn. Apr. 10, 2013). Thus, the mere fact that Defendant’s case was
retried after the trial court granted a new trial on the basis of juror misconduct did not
place Defendant under jeopardy twice for the same criminal conduct.

       The Tennessee Supreme Court stated the following regarding the State’s power to
seek superseding indictments:

              The power to seek a superseding indictment lies within th[e] broad
       discretion of the State. A superseding indictment is an indictment obtained
       without the dismissal of a prior indictment. Where there has been no
       jeopardy on the first indictment, a grand jury may return a new indictment
       against an accused even though another indictment is pending. Although
                                           - 40 -
       the State may not bring a superseding indictment to harass or intimidate the
       accused, a legitimate decision to bring a superseding indictment is uniquely
       within the State’s authority. Thus, the State may obtain a superseding
       indictment at any time prior to trial without dismissing the pending
       indictment and may then select the indictment under which to proceed at
       trial.

State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000) (internal citations and footnote
omitted).

       When the trial court granted Defendant’s motion, the judgments from the first trial
were vacated, and Defendant returned to the pretrial stage of the criminal proceeding,
with the exception of the jury’s acquittal of aggravated rape in count four. Essentially, it
was as if Defendant’s first trial never happened. Thus, because Defendant’s case had not
proceeded to trial, the State had the discretion to seek a superseding indictment. See id.

       In any event, excluding count four, which we will discuss in depth later in this
opinion, the original and superseding indictments charged the same offenses. The
Tennessee Supreme Court has previously held that “specific reference to a statute within
the indictment may be sufficient to place the accused on notice of the charged offense.”
State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000); see also State v. Carter, 988 S.W.2d 145,
149 (Tenn. 1999), Ruff v. State, 978 S.W.2d 95, 100 (Tenn. 1998). Here, the original
indictment did not list the aggravating factor of the aggravated rape and aggravated
sexual battery counts, but the indictment did refer to the appropriate section of Tennessee
Code Annotated for those offenses. Thus, the original indictment was still sufficient to
put Defendant on notice of the offenses for which he was charged. Additionally, because
the original and the superseding indictment both charged Defendant with committing
aggravated rape and aggravated sexual battery, the State did not improperly amend the
offenses by obtaining a superseding indictment.

       Because the State had the discretion to seek a superseding indictment after the trial
court ordered a new trial and because the original and superseding indictment both
charged Defendant with aggravated rape and aggravated sexual battery, the State did not
place Defendant in jeopardy twice for the same offense by seeking the superseding
indictment.

                            (B) Mandatory joinder of offenses

       Under Tennessee Rule of Criminal Procedure 8(a), “[t]wo or more offenses shall
be joined in the same indictment, presentment, or information, with each offense stated in
a separate count, or the offenses consolidated pursuant to Rule 13,” if the offenses are
                                           - 41 -
“based on the same conduct or arise from the same criminal episode”; are “within the
jurisdiction of a single court”; and are “known to the appropriate prosecuting official at
the time of the return of the indictment(s), presentment(s), or information(s).” Tenn. R.
Crim. P. 8(a)(1). “A defendant shall not be subject to separate trials for multiple offenses
falling within Rule 8(a)(1) unless they are severed pursuant to Rule 14.” Tenn. R. Crim.
P. 8(a)(2). All three of the criteria listed in Rule 8(a)(1) must exist before multiple
offenses are required to be joined.

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

       We have previously concluded that the original indictment and the superseding
indictment charged Defendant with the same offenses: aggravated rape, aggravated
sexual battery, and unlawful photography. Because the indictments charged the same
offenses, the State did not “save back” any offenses that arose from the same conduct or
the same criminal episode. See Tenn. R. Crim. P. 8(a), Advisory Comm’n Cmts. Thus,
we conclude that Rule 8 is not implicated in Defendant’s case. Additionally, because
Defendant sought and received a new trial, the State’s superseding indictment did not
cause Defendant to endure unnecessary court proceedings. The trial court properly
concluded that the State was not required to join the offenses alleged in the superseding
indictment with the offenses alleged in the original indictment.

                       (C) Plain error in the superseding indictment

       In our review of this case, we note that the jury acquitted Defendant of aggravated
rape and convicted Defendant of attempted aggravated rape in count four at the
conclusion of the first trial. Once a jury acquits a defendant of a charge, the State may
not pursue a conviction for that offense after the trial court has ordered a new trial. Thus,
the State should not have sought a superseding indictment for aggravated rape in count
five. Instead, the State should have sought a superseding indictment for attempted
aggravated rape. Because Defendant was subjected to jeopardy for aggravated rape in
count four during the original trial and the jury acquitted him of that offense, the
prosecution for aggravated rape in count five in the second trial was plain error. Thus,
we vacate Defendant’s conviction for aggravated rape in count five. Because the original
jury found Defendant guilty of the lesser included offense of attempted aggravated rape
and the second jury found Defendant guilty of the greater offense of aggravated rape, we
                                           - 42 -
conclude that the trial court should modify Defendant’s conviction in count five to
attempted aggravated rape. We will address the sufficiency of this conviction later in this
opinion. Additionally, on remand, the trial court should enter an amended judgment
reflecting the imposition of the minimum sentence within the applicable range for count
five.

                              (2) Prosecutorial vindictiveness

       Defendant asserts that “[t]he State’s election to file a superseding indictment and
include charges in the second indictment that it failed to include on the original
indictment creates a ‘realistic likelihood’ of prosecutorial retaliation.” Defendant argues
that because the original indictment only charged him with assault and the superseding
indictment charged him with aggravated rape and aggravated sexual battery, the
superseding indictment greatly increased his punishment exposure, creating a rebuttable
presumption of prosecutorial vindictiveness. The State does not specifically address this
argument. Because Defendant raises this issue for the first time on appeal, we conclude
that he has waived plenary review of this issue and we will review only for plain error.

       Rule 36(a) of the Tennessee Rules of Appellate Procedure states that “[n]othing in
this rule shall be construed as requiring relief be granted to a party responsible for an
error or who failed to take whatever action was reasonably available to prevent or nullify
the harmful effect of an error.” Tenn. R. App. P. 36(a). “The failure to make a
contemporaneous objection constituted waiver of the issue on appeal.” State v. Gilley,
297 S.W.3d 739, 762 (Tenn. Crim. App. 2008). However, “[w]hen necessary to do
substantial justice,” this court may “consider an error that has affected the substantial
rights of a party” even if the issue was waived. Tenn. R. App. P. 36(b). Such issues are
reviewed under plain error analysis. State v. Hatcher, 310 S.W.3d 788, 808 (Tenn.
2010).

        Plain error relief is “limited to errors that had an unfair prejudicial impact which
undermined the fundamental fairness of the trial.” State v. Adkisson, 899 S.W.2d 626,
642 (Tenn. Crim. App. 1994). In order to be granted plain error relief, five criteria must
be met: (1) the record must clearly establish what occurred in the trial court; (2) a clear
and unequivocal rule of law must have been breached; (3) a substantial right of the
accused must have been adversely affected; (4) the accused did not waive the issue for
tactical reasons; and (5) consideration of the error is “necessary to do substantial justice.”
Adkisson, 899 S.W.2d at 641-42 (quoting Tenn. R. App. P. 36(b)); see also State v. Smith,
24 S.W.3d 274, 282-83 (Tenn. 2000) (formally adopting the Adkisson standard for plain
error relief). When it is clear from the record that at least one of the factors cannot be
established, this court need not consider the remaining factors. Smith, 24 S.W.3d at 283.

                                            - 43 -
The defendant bears the burden of persuasion to show that he is entitled to plain error
relief. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).

        It is a violation of basic due process to punish a person for choosing to exercise his
or her constitutional rights. North Carolina v. Pearce, 395 U.S. 711, 724-25 (1969). The
Tennessee Supreme Court has held that, even in the absence of proof of actual bad faith
or malice, there is a rebuttable presumption of prosecutorial vindictiveness that may arise
if the circumstances pose a “realistic likelihood” of prosecutorial retaliation. State v.
Phipps, 959 S.W.2d 538, 546 (Tenn. 1997). Our supreme court established the following
criteria for assessing whether a “realistic likelihood” of prosecutorial retaliation exists:
(1) “[w]hether the right asserted by the defendant would result in duplicable expenditures
of prosecutorial resources”; (2) “whether the prosecution would be required to do over
again what it thought it had already done correctly once”; (3) “whether the prosecutor has
a personal stake or an interest in self vindication”; (4) “whether institutional biases
militated against retrial of a decided question”; and (5) “whether the prosecutorial
decision to increase the charge or sentence was made after the initial trial was completed
rather than in a pre-trial context.” Id. If the circumstances in a particular case “give rise
to a realistic likelihood of prosecutorial retaliation[,]” the State must establish, by clear
and convincing evidence, that a legitimate purpose motivated the challenged decision.
Id.

       If proven, allegations of prosecutorial vindictiveness or selective prosecution in
the institution of a prosecution may warrant dismissal of the indictment based on
constitutional concerns. State v. Skidmore, 15 S.W.3d 502, 508 (Tenn. Crim. App. 1999)
(citing Blackledge v. Perry, 417 U.S. 21, 27 (1974)). However, if a prosecutor has
probable cause to believe the accused committed the underlying offense, the decision to
prosecute the accused rests entirely within the prosecutor’s discretion, subject to certain
constitutional limitations. Id. (citing State v. Superior Oil, Inc., 875 S.W.2d 658, 660
(Tenn. 1994); Quillen v. Crockett, 928 S.W.2d 47, 51 (Tenn. Crim. App. 1995)).

        Here, we conclude that the facts before us do not create a rebuttable presumption
of prosecutorial vindictiveness because there is no “reasonable likelihood” of
prosecutorial retaliation. See Phipps, 959 S.W.2d at 546. Defendant has not presented
any evidence that the prosecutors involved in his trials had “a personal stake or an
interest in self[-]vindication[.]” See id. The State has consistently asserted that it sought
a superseding indictment to “clarify” that it intended to prosecute Defendant for
aggravated rape and aggravated sexual battery on the theory that the victim, E.L., was
mentally incapacitated during the offenses. Further, there is no evidence that any
“institutional biases militate[] against retrial” because the trial court ordered a new trial
prior to when the State sought a superseding indictment. See State v. Frank Michael
Vukelich, No. M1999-00618-CCA-R3-CD, 2001 WL 1044617, at *8 (Tenn. Crim. App.
                                            - 44 -
Sept. 11, 2001) (concluding that “no institutional biases militated against retrial of a
decided question, because the Defendant was to be tried again anyway”), perm. app.
denied (Tenn. Apr. 1, 2002).

        Further, Defendant has not established that the State acted with actual malice
when it sought a superseding indictment prior to Defendant’s second trial. See United
States v. Goodwin, 457 U.S. 368, 384 (1982). As we have previously concluded, the
original indictment and the superseding indictment both charged Defendant with
aggravated rape, aggravated sexual battery, and unlawful photography. Because
Defendant has not established a presumption of prosecutorial vindictiveness or the
presence of actual vindictiveness, we conclude that no substantial right was affected by
the State’s decision to obtain a superseding indictment. Therefore, Defendant is not
entitled to plain error relief on this ground.

                    (3) Exclusion of Defendant’s intoxication expert

       Defendant contends that the trial court erred in excluding the testimony of a
defense witness, Dr. Sidney Alexander. He asserts that a major part of his trial strategy
was arguing that “he was so intoxicated from alcohol at the time of the alleged offenses
that he did not have the capacity to form the intent necessary to be criminally responsible
for the offenses committed by his co-defendants.” Defendant argues that the trial court’s
decision prejudiced him and violated his right to due process and a fair trial. The State
responds that “the trial court acted within its discretion in excluding the testimony based
on the defendant’s untimely notice and the expert’s lack of qualifications.”

       On September 15, 2014, prior to his first trial, Defendant filed a notice of intent to
offer expert testimony on his mental state. The notice stated that Defendant intended to
call Dr. Stephanie Stolinsky at trial. The record reveals that the State received Dr.
Stolinsky’s report on October 13, 2014. On October 17, 2014, the State filed a motion to
exclude Dr. Stolinsky’s testimony on the ground that her testimony would not be
admissible under Tennessee Rules of Evidence 401 and 702. Dr. Stolinsky’s report was
not included in the record on appeal as an exhibit, but it was attached to the State’s
motion. Dr. Stolinsky did not testify at Defendant’s first trial.

       On September 25, 2015, Defendant filed a “Motion for Leave of Court to Tender
Motion on Experts[.]” The Motion stated that, on September 11, 2015, the trial court
held a scheduling conference and set a date for filing of notice of experts. Defendant
asked for an extension of thirty days to file a notice of expert testimony. Defendant
attached an email to this motion from the Criminal Court Clerk to all prosecutors and
defense attorneys involved in the case. The email referred to a meeting in the trial
judge’s chambers that was held that morning and stated that September 25, 2015, was the
                                           - 45 -
deadline for filing motions on experts. The trial court granted this motion on September
25, 2015, according to a minute entry from that date. On October 12, 2015, Defendant
filed a “Motion for Leave of Court to File Pretrial Motions[.]” This motion stated that
Defendant had “identified and retained particular experts” and asked the trial court to
extend its original deadline for the filing of pretrial motions on October 9, 2015. At a
motion hearing on October 19, 2015, the trial court set a deadline of December 1, 2015,
for Defendant to file a notice of expert testimony.

        On May 6, 2016, the State filed a motion to exclude Defendant’s experts, Jim
Kempvanee and Dr. Alexander. The State noted that, at the October 19, 2015 motion
hearing, the trial court set December 1, 2015, as the deadline for Defendant to file a
notice of expert witnesses. The State’s motion also alleged that Defendant had failed to
provide any reports from his experts. On May 10, 2016, Defendant filed a reply to the
State’s motion, in which he asserted that, on October 9, 2015, he filed a motion to renew
all motions previously filed in the first trial, which included motions “related to the use of
expert testimony[.]” The reply also noted that Defendant gave the State notice on April
28, 2016, that he intended to call Dr. Alexander at trial to testify regarding Defendant’s
mental condition and Mr. Kempvanee to testify on “digital forensic analysis and
technology.” Defendant argued that the State would not suffer any prejudice by the
testimony of these two experts at trial because the State had been aware since the first
trial that Defendant might introduce expert testimony. Defendant also argued that Dr.
Alexander and Mr. Kempvanee were defense rebuttal witnesses and, therefore, not
subject to disclosure under Tennessee Rule of Criminal Procedure 16(b)(1)(B)(i)-(iii).

        The trial court granted the State’s motion to exclude the testimony of Dr.
Alexander and denied the State’s motion to exclude the testimony of Mr. Kempvanee on
May 18, 2016. The order stated that the trial court “specifically set a deadline for the
defense to give notice of an expert and provide a report of that expert’s findings and that
was not done.” On May 31, 2016, Defendant filed a motion asking the trial court to
reconsider its grant of the State’s motion to exclude the testimony of Dr. Alexander. The
motion to reconsider reiterated many of Defendant’s previous arguments regarding the
admission of Dr. Alexander’s testimony. Notably, Defendant attached Dr. Alexander’s
report, dated May 27, 2016, to the motion to reconsider.

       On May 31, 2016, Defendant filed an “Application for Rule 10 Extraordinary
Appeal and Stay of the Trial Proceedings” with this court.13 Defendant asserted in the
application that “[t]he actions of the trial court in precluding the defense from presenting
        13
         Defendant’s application and this court’s order denying the application were not included in the
record on appeal. To assist in resolution of Defendant’s case, we take judicial notice of these prior
proceedings. See Tenn. R. App. P 13(c); State v. Lawson, 291 S.W.3d 864, 869 (Tenn. 2009); State ex rel
Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964).
                                                - 46 -
evidence regarding [Defendant]’s mental condition bearing on the issue of guilt has so far
departed from the accepted and usual course of judicial proceedings as to require
immediate review[.]” Defendant argued that the trial court’s decision to exclude Dr.
Alexander’s testimony violated his right to present a defense and was an abuse of
discretion because the State would not be actually prejudiced if Dr. Alexander testified.

       On June 1, 2016, this court denied Defendant’s Rule 10 appeal. This court
concluded that Defendant did “not satisf[y] the ‘narrowly circumscribed’ requirements
for an extraordinary appeal.” This court determined that “[t]he trial court’s order reflects
that the trial court followed the accepted and usual course of judicial proceedings prior to
ruling on the four motions at issue.”

      On June 7, 2016, the trial court ruled that it would hold a jury-out hearing to
determine whether the testimony of Dr. Alexander was admissible. The court minutes
from June 13, 2016, reflect that the trial court denied Defendant’s motion to reconsider.
In a written order filed on June 14, the trial court set out its reasoning for denying
Defendant’s motion after the hearing. The trial court found that,

       1) although each party has had ample time to conduct an evaluation of
       [D]efendant . . . , neither party has secured an evaluation of the defendant;
       (2) although Dr. J. Sid Alexander testified regarding his psychiatric
       expertise, Dr. Alexander did not demonstrate any specialized expert
       opinion knowledge or training regarding toxicology; and (3) Dr. Alexander
       relied on information supplied via email by defense counsel and did not
       base any opinion on data, documentation or scientific evidence. Further,
       the Court finds that the underlying facts indicate a lack of trustworthiness
       of Dr. Alexander’s testimony.

        On June 10, 2016, prior to the commencement of the second day of voir dire, the
trial court held a hearing on Defendant’s motion to allow Dr. Alexander to testify
regarding Defendant’s mental state and intoxication during the offenses. The trial court
heard arguments from both Defendant and the State and asked to hear from Dr.
Alexander on the first day of trial. On June 13, 2016, the trial court held a jury-out
hearing on the admissibility of Dr. Alexander’s testimony. The State and Defendant
stipulated that Dr. Alexander was a board-certified psychiatrist. Dr. Alexander testified
that, to prepare the letter that Defendant submitted to the trial court, he examined data
given to him by defense counsel. This data was Defendant’s “best recollection” of the
alcohol that he consumed prior to the offenses. Dr. Alexander explained that he was
retained by Defendant to calculate Defendant’s blood alcohol content (“BAC”) during the
offenses. He looked at “many different tables” and “many different sources of
information” but focused on a formula for calculating BAC based on “Widmark’s
                                           - 47 -
principle[.]”14 Dr. Alexander noted that the number of drinks that he used to calculate
Defendant’s BAC was “the most conservative number” because Defendant stated that he
consumed more alcoholic drinks than he could specifically remember. Dr. Alexander
also calculated how Defendant’s body metabolized alcohol by multiplying the fourteen
hours during which Defendant consumed alcohol with 0.015; this number represented
“the blood alcohol that was metabolized and no longer present.” Finally, Dr. Alexander
subtracted the first blood alcohol figure from the second to arrive at “what the blood
alcohol level most likely was at 2 a.m.” Dr. Alexander testified that the most reliable
estimate of Defendant’s BAC during the offenses was 0.22. He estimated that
Defendant’s BAC was between 0.25 and 0.27 immediately after Defendant left Tin Roof.

       Dr. Alexander stated the following about his professional experience with the
effect of alcohol on individuals:

               Alcohol use is very widespread in our country, and alcohol abuse is
        also widespread. And, with that, the interface with psychiatry and alcohol
        occurs in every phase of practice that I’ve ever had. So whether it’s an
        outpatient private practice, outpatient in a drug and alcohol clinic, which
        I’ve worked there. I’ve worked in patient drug and alcohol units. For
        twelve years, I was the medical director of a very large state psychiatric
        hospital. We had many, many people that were admitted to the hospital
        with different levels of intoxication. And I also served as the night call
        physician one night a week for a number of years. So, I would see the
        people as they were brought in by the police and see the effects directly of
        what level of alcohol.

               Also, in the last ten or eleven years, I’ve worked in two different
        general hospitals. So, we don’t have any psychiatric unit, but we see
        people that overdose on alcohol or get ill enough medically to come in for
        alcohol withdrawal. And we see people with blood alcohol levels at just
        about any range, but even as high as .5, .6.

Dr. Alexander stated that he had treated “many thousands” of patients whose cases
“involve[d] alcohol and the effects of all alcohol[.]”


        14
            Dr. Alexander explained that Widmark’s principle “involves forming the volume of alcohol
that is taken . . . in grams” and then “plug[ging] those numbers into the equation, convert[ing] it to
milliliters and then multiply[ing] it by .789, which is the specific gravity of alcohol.” Next, Dr.
Alexander divided the specific gravity of alcohol by Defendant’s weight in kilograms and multiplied the
result by “a standard conversion factor of 0.68.” The result “represents a male individual’s distribution of
alcohol in their body[.]” Dr. Alexander next converted the number to liters to obtain the BAC.
                                                  - 48 -
        Dr. Alexander also learned that Defendant had sustained concussions in high
school as well as his freshman year of college. Additionally, Defendant suffered another
possible concussion shortly before the offenses during a motor vehicle accident. Dr.
Alexander testified that, although he did not have any of Defendant’s medical records on
these concussions, head injuries were “a factor that would have to be considered in this
situation.” He explained that the symptoms of alcohol consumption would be
“exacerbated or worsened” in a person with a previous head injury. Further, Dr.
Alexander stated that Defendant was “a new drinker” who would have likely displayed
the following symptoms at a BAC of 0.22: “being uncoordinated, unbalanced, slurred
speech, difficulty making decisions, difficulty perceiving the environment, difficulty
assessing situations, [and] basically dysfunction of the brain.” Dr. Alexander testified
that, in his professional opinion and to a reasonable degree of medical certainty, the
Defendant’s decision-making ability was impaired at the time of the offenses. More
specifically, Dr. Alexander explained that Defendant “would not have been cognizant
enough to be able to form intent or to have more than first order thinking.”

       On cross-examination, Dr. Alexander stated that Defendant retained his services in
early- to mid-April 2016. Dr. Alexander testified that he was not board-certified in
toxicology or neuropharmacology. He could not specifically describe any training he had
received in toxicology after medical school. He stated that he did not normally prepare
reports like the one he prepared for Defendant. Dr. Alexander agreed that he based his
opinion and report on information given to him by defense counsel, namely, an email
with “a series of questions” and Defendant’s answers to the questions; he did not
interview Defendant. Dr. Alexander testified that he did not have enough information to
determine whether Defendant was malingering. He also stated that he did not review
video surveillance of Defendant’s actions on the night of the offenses prior to composing
his report.

        The trial court noted that the State did not have an opportunity to retain an expert
to rebut Dr. Alexander’s findings. The trial court also noted that neither the State nor the
defense asked an expert to evaluate Defendant. Further, the trial court found that Dr.
Alexander was an expert in psychiatry and “did not demonstrate any particular expertise
in the field of toxicology,” which the trial court found to be “extremely important.”
Additionally, the trial court found that Dr. Alexander’s “conclusions and opinions were
based upon information supplied by defense counsel as admitted in the form of an e-mail
and not based upon any scientific information or documented information or any
particular evaluation that he had provided.” Therefore, the trial court concluded that “the
underlying facts indicate[d] a lack of trustworthiness in this particular case[,]” and the
trial court held that Dr. Alexander’s testimony should be excluded.



                                           - 49 -
                      (A) Tennessee Rules of Evidence 702 and 703

        “In Tennessee the qualifications, admissibility, relevancy and competency of
expert testimony are matters which largely rest within the sound discretion of the trial
court.” State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). “If scientific, technical, or
other specialized knowledge will substantially assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form of an opinion or
otherwise.” Tenn. R. Evid. 702.

             The facts or data in the particular case upon which an expert bases
      an opinion or inference may be those perceived by or made known to the
      expert at or before the hearing. If of a type reasonably relied upon by
      experts in the particular field in forming opinions or inferences upon the
      subject, the facts or data need not be admissible in evidence. Facts or data
      that are otherwise inadmissible shall not be disclosed to the jury by the
      proponent of the opinion or inference unless the court determines that their
      probative value in assisting the jury to evaluate the expert’s opinion
      substantially outweighs their prejudicial effect. The court shall disallow
      testimony in the form of an opinion or inference if the underlying facts or
      data indicate lack of trustworthiness.

Tenn. R. Evid. 703.

        In McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997), the
Tennessee Supreme Court adopted the following non-exclusive list of factors to assist
courts in determining whether scientific evidence is reliable: (1) “whether scientific
evidence has been tested and the methodology with which it has been tested”; (2)
“whether the evidence has been subjected to peer review or publication”; (3) “whether a
potential rate of error is known”; (4) “whether, as formerly required by [Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923)], the evidence is generally accepted in the scientific
community”; and (5) “whether the expert’s research in the field has been conducted
independent of litigation.” Additionally, the supreme court has considered “the expert’s
qualifications for testifying on the subject at issue[,]” see Brown v. Crown Equipment
Corp., 181 S.W.3d 268, 274 (Tenn. 2005), which particularly applies “where the expert’s
personal experience is essential to the methodology or analysis underlying his or her
opinion.” Id. Another factor to consider is “the connection between the expert’s
knowledge and the basis for the expert’s opinion[,]” which particularly applies when “the
expert’s opinions are based upon experience or observations as these areas are not easily
verifiable.” Id. at 275. Consideration of this factor “ensure[s] that an ‘analytical gap’
does not exist between the data relied upon and the opinion offered.” Id.
                                          - 50 -
       As noted above, the trial court excluded Dr. Alexander’s testimony because “the
underlying facts indicate[d] a lack of trustworthiness in this particular case[.]”
Additionally, the trial court found that Dr. Alexander did not examine Defendant, “did
not demonstrate any specialized expert opinion knowledge or training regarding
toxicology[,]” and “relied on information supplied via email by defense counsel and did
not base any opinion on data, documentation or scientific evidence.” The trial court’s
findings are supported by Dr. Alexander’s testimony that, to prepare the letter that
Defendant submitted to the trial court, he examined data given to him by defense counsel.
This data was Defendant’s “best recollection” of the amount of alcohol that he consumed
prior to the offenses. Dr. Alexander was not board-certified in toxicology or
neuropharmacology, did not receive specific training in toxicology after medical school,
and did not normally prepare reports such as the one that he prepared for Defendant.

       We conclude that the trial court properly exercised its discretion by excluding Dr.
Alexander’s testimony. See State v. Lowe, 552 S.W.3d 842, 865-66 (Tenn. 2018)
(concluding that an expert’s testimony would not have substantially assisted the trial
court in determining whether the defendant’s statement to police was voluntary because
the expert did not review the interview between the defendant and police); see also State
v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994) (affirming the trial court’s exclusion of
expert testimony as “not sufficiently trustworthy” because the expert did not review the
complete interrogation).

                              (B) Right to present a defense

        A defendant’s right to present his own witnesses to establish a defense constitutes
a fundamental element of due process and is protected by the Compulsory Process Clause
of the Sixth Amendment. Washington v. Texas, 388 U.S. 14, 19 (1967). “. . .
Washington v. Texas clearly established that, under the Sixth Amendment, a state may
not arbitrarily deny a defendant the right to call a witness whose testimony is relevant and
material to the defense.” Davis v. Straub, 430 F.3d 281, 290 (6th Cir. 2005) (citing
Washington, 388 U.S. at 23). Government conduct that rises to the level of “substantial
interference” with a witness’s “free and unhampered determination to testify” violates
this right. United States v. Foster, 128 F.3d 949, 953 (6th Cir. 1997); see, e.g., Webb v.
Texas, 409 U.S. 95, 98 (1972) (per curiam) (reversing the defendant’s conviction when
the trial court severely admonished the sole witness proffered by the defense who
declined to testify as a result); United States v. Thomas, 488 F.2d 334, 336 (6th Cir.
1973) (reversing a conviction obtained after a Secret Service agent, in an ex parte
communication, advised a defense witness of possible prosecution if he testified). Even
when such interference occurs, however, a violation of a defendant’s right to call
witnesses in his defense is subject to harmless error analysis. United States v.
Emuegbunam, 268 F.3d 377, 400 (6th Cir. 2001); Foster, 128 F.3d at 953 & n. 4.
                                           - 51 -
      However, a defendant’s right to present witnesses is not absolute:

      In appropriate cases, the right must yield to other legitimate interests in the
      criminal trial process. Specifically, [i]n the exercise of this right, the
      accused, as is required of the State, must comply with established rules of
      procedure and evidence designed to assure both fairness and reliability in
      the ascertainment of guilt and innocence. However, these procedural and
      evidentiary rules of exclusion may not be applied mechanistically to defeat
      the ends of justice. Such rules do not abridge an accused’s right to present
      a defense so long as they are not arbitrary or disproportionate to the
      purposes they are designed to serve.

State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000) (internal citations and quotation marks
omitted) (alteration in original). In determining whether a defendant’s right to present a
defense has been violated by the exclusion of evidence, courts should consider whether
“(1) the excluded evidence is critical to the defense; (2) the evidence bears sufficient
indicia of reliability; and (3) the interest supporting exclusion of the evidence is
substantially important.” Id. at 433-34 (citing Chambers v. Mississippi, 410 U.S. 284,
298-301 (1973)).

      The United States Supreme Court has recognized that an exclusion of evidence is
unconstitutional when it “significantly undermine[s] fundamental elements of the
accused’s defense.” United States v. Scheffer, 523 U.S. 303, 315 (1998). The question of
whether excluded evidence is critical to a defense is a fact-specific inquiry. See
Chambers, 410 U.S. at 303.

                           1. Evidence critical to the defense

       In this case, Dr. Alexander’s testimony on Defendant’s approximate BAC at the
time of the offenses would have assisted in establishing Defendant’s theory of the case—
that his high level of intoxication prevented him from knowingly participating in the
offenses and thus being criminally responsible. Dr. Alexander testified that, in his
professional opinion and to a reasonable degree of medical certainty, the Defendant’s
decision-making ability was impaired at the time of the offenses. More specifically, Dr.
Alexander explained that Defendant “would not have been cognizant enough to be able to
form intent or to have more than first order thinking.” Thus, we conclude that Dr.
Alexander’s testimony was critical to Defendant’s trial strategy. However, even though
Dr. Alexander’s testimony was critical to the defense, we must examine the other factors
relevant to the consideration of whether the exclusion of Dr. Alexander’s testimony
violated Defendant’s right to present a defense.

                                          - 52 -
                            2. Sufficient indicia of reliability

       As stated previously in this opinion, the trial court excluded Dr. Alexander’s
testimony because “the underlying facts indicate[d] a lack of trustworthiness” and
because Dr. Alexander did not examine Defendant, “did not demonstrate any specialized
expert opinion[,] knowledge[,] or training regarding toxicology[,]” “relied on information
supplied via email by defense counsel[,]” and “did not base any opinion on data,
documentation or scientific evidence.” Dr. Alexander relied on self-serving and
uncorroborated statements from Defendant to calculate Defendant’s approximate BAC
during the offenses. Thus, we agree with the trial court that Dr. Alexander’s proposed
testimony and conclusions were unreliable, and we give this factor considerable weight.

                            3. Interest supporting exclusion

       In this case, the interests supporting exclusion are the interests behind Tennessee
Rule of Evidence 703, which was discussed previously in this opinion. Further, we have
previously determined that the trial court properly exercised its discretion under Rule 703
to exclude Dr. Alexander’s testimony. Thus, the interests behind Rule 703 support the
exclusion of Dr. Alexander’s testimony. Because we have previously concluded that Dr.
Alexander’s testimony was unreliable, we also conclude that Defendant has not
established that the trial court’s exclusion of Dr. Alexander’s testimony violated his Sixth
Amendment right to present witnesses. See State v. Joshua Hunter Bargery, No. W2016-
00893-CCA-R3-CD, 2017 WL 4466559, at *42-44 (Tenn. Crim. App. Oct. 6, 2017), no
perm. app. filed.

                                    (4) Jury selection

        Defendant asserts that the trial court violated Tennessee Rule of Criminal
Procedure 24(b)(2) by denying Defendant’s request to question prospective jurors about
other college rape cases that had recently occurred in the United States. He argues that
he was unable to “effectively challenge for cause or to peremptorily challenge jurors
based on their attitudes about those cases.” Defendant also contends that the trial court
failed to timely give the prospective jurors the admonitions required by Tennessee Rule
of Criminal Procedure 24(g). He asserts that the trial court’s failure to admonish the
prospective jurors at the beginning of jury selection made it virtually impossible to select
a fair and impartial jury, preventing him from receiving a fair trial.

       The State argues that the trial court properly denied Defendant’s motion to strike
the venire because Defendant “failed to establish that any of the jurors who served on his
trial were prejudiced by any outside influence.” More specifically, the State notes that
“only [two] of the [twenty-five] prospective jurors mentioned in . . . [D]efendant’s brief
                                           - 53 -
ultimately served on the jury[,]” and those two jurors “indicated that they could be fair
and impartial.” The State also contends that the trial court did not err by waiting to
admonish the prospective jurors until the second day of voir dire because “the trial court
explained that, due to information that some prospective jurors had obtained extraneous
information about the case, they had elected to question them further during individual
voir dire.”

        On June 9, 2016, after the first day of jury selection, Defendant filed a motion to
strike the venire or to conduct individual voir dire. In the motion, Defendant asserted
that, during individual voir dire, several prospective jurors stated that members of the
panel had been discussing the case with each other. Other prospective jurors stated that
they had some prior knowledge of the case from hearing about it on local news or from
friends or family members. The trial court stated that the “problem can be resolved in the
voir dire process.” Defense counsel asked the trial court to allow individual voir dire.
The trial court stated that it would “ask a couple of questions” of the next group of forty
prospective jurors. The trial court also stated that the State and Defendant could discuss
sensitive issues with individual jurors. Defense counsel also noted that the trial court did
not admonish the venire to refrain from finding extrajudicial information about the case
under Tennessee Rule of Criminal Procedure 24(g) and consequently, prospective jurors
searched for information on Defendant’s case and previous trials on the Internet and
discussed it amongst themselves. The trial court stated that voir dire would proceed as
planned. As the voir dire process progressed, the trial court asked the prospective jurors
if they “have had any discussion about this particular case, or heard someone discuss this
particular case[.]” The trial court took jurors who responded affirmatively to the jury
deliberation room where the State and Defendant conducted individual voir dire.

       J.M.15 indicated during group voir dire that he heard prospective jurors discussing
Defendant’s case on June 8. During individual voir dire in the jury deliberation room,
J.M. stated that he heard “that it happened three years ago, and one of his [co-
]defendants[] . . . had a trial already.” He explained that he first heard about Defendant’s
case on the morning of June 8 and that he did not form an opinion regarding Defendant’s
guilt or innocence. He affirmed that he could decide the case solely based on the
evidence admitted at trial. J.M. was later selected to serve on Defendant’s jury.



        15
             Defendant’s primary brief and reply brief discuss the voir dire of several prospective jurors;
however, we will only address Defendant’s arguments on this issue as they relate to individuals who were
selected to serve on Defendant’s jury because we must determine whether the jury who deliberated on
Defendant’s case was fair and impartial. See State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993); see also
State v. Thompson, 768 S.W.2d 239, 246 (Tenn. 1989). Additionally, we will refer to these jurors by their
initials to protect their privacy. No disrespect is intended.
                                                  - 54 -
        During individual voir dire in the courtroom, M.N. affirmed that, if selected to
serve on Defendant’s jury, she would decide the case based on the evidence introduced at
trial and would be fair and impartial. M.N. stated that one of her daughter’s friends had
been molested as a child; she stated on the jury questionnaire that this was a “life-lasting
experience.” M.N. stated that the molestation of her daughter’s friend would not have
any effect on her ability to deliberate fairly and impartially on Defendant’s case. M.N.
was later selected to serve on Defendant’s jury.

       Later in the day of June 9, Defendant renewed his motion to strike the venire. He
also requested that the trial court give him two more peremptory challenges. Defendant
asserted that he had used two peremptory challenges on prospective jurors who should
have been struck for cause. The trial court denied both requests.

       The Sixth Amendment to the United States Constitution and article I, section 9 of
the Tennessee Constitution both guarantee the accused the right to trial “by an impartial
jury.” U.S. Const. amend. VI; Tenn. Const. art. I, § 9. The Tennessee Constitution has
been interpreted to guarantee a jury free from “disqualification on account of some bias
or partiality toward one side or the other of the litigation.” Carruthers v. State, 145
S.W.3d 85, 94 (Tenn. Crim. App. 2003) (quoting State v. Akins, 867 S.W.2d 350, 354
(Tenn. Crim. App. 1993)). Bias is “a leaning of the mind; propensity or prepossession
towards an object or view, not leaving the mind indifferent; a bent; for inclination.” Id.
“The ultimate goal of voir dire is to see that jurors are competent, unbiased, and
impartial, and the decision of how to conduct voir dire of prospective jurors rests within
the sound discretion of the trial court.” Howell, 868 S.W.2d at 247 (citing State v.
Harris, 839 S.W.2d 54, 65 (Tenn. 1992); State v. Simon, 635 S.W.2d 498, 508 (Tenn.
1982)).

       A trial court’s decisions regarding juror qualifications are reviewed for an abuse of
discretion. State v. Hugueley, 185 S.W.3d 356, 378 (Tenn. 2006); State v. Mickens, 123
S.W.3d 355, 375 (Tenn. Crim. App. 2003). The trial court’s decision will not be reversed
absent “manifest error.” Howell, 868 S.W.2d at 248. On appeal, this court must
determine “whether the jury that tried the case was fair and impartial.” State v. Davidson,
509 S.W.3d 156, 193 (Tenn. 2016).

                (A) Questioning prospective jurors about other rape cases

       Peremptory challenges are intended to exclude jurors “suspected of bias or
prejudice,” while the challenge for cause should be used to exclude potential jurors
“whose bias or prejudice rendered them unfit.” State v. Pamplin, 138 S.W.3d 283, 285-
86 (Tenn. Crim. App. 2003) (quoting Manning v. State, 292 S.W. 451, 455 (Tenn. 1927))
(internal quotation marks omitted). Tennessee Rule of Criminal Procedure 24(b)
                                           - 55 -
provides that the trial court “may ask potential jurors appropriate questions regarding
their qualifications to serve as jurors in the case” and “shall permit the parties to ask
questions for the purpose of discovering bases for challenge for cause and intelligently
exercising peremptory challenges.” Tenn. R. Crim. P. 24(b)(1). Additionally, “[o]n
motion of a party or its own initiative, the court may direct that any portion of the
questioning of a prospective juror be conducted out of the presence of the tentatively
selected jurors and other prospective jurors.” Tenn. R. Crim. P. 24(b)(2).

       The Tennessee Rules of Criminal Procedure also set out the following procedure
for challenges for cause:

              After examination of any juror, the judge shall excuse that juror
       from the trial of the case if the court is of the opinion that there are grounds
       for challenge for cause. After the court has tentatively determined that the
       jury meets the prescribed qualifications, counsel may conduct further
       examination and, alternately, may exercise challenges for cause.

Tenn. R. Crim. P. 24(c)(1). “Any party may challenge a prospective juror for cause if: . .
. [t]here exists any ground for challenge for cause provided by law” or “[t]he prospective
juror’s exposure to potentially prejudicial information makes the person unacceptable as
a juror.” Tenn. R. Crim. P. 24(c)(2)(A)-(B). In determining whether a prospective juror
has been exposed to potentially prejudicial information, the trial court “shall consider
both the degree of exposure and the prospective juror’s testimony as to his or her state of
mind.” Tenn. R. Crim. P. 24(c)(2)(B). “A prospective juror who states that he or she
will be unable to overcome preconceptions is subject to challenge for cause no matter
how slight the exposure.” Id.

       If the prospective juror has seen or heard and remembers information that
       will be developed in the course of trial, or that may be inadmissible but is
       not so prejudicial as to create a substantial risk that his or her judgment will
       be affected, the prospective juror’s acceptability depends on whether the
       court believes the testimony as to impartiality. A prospective juror who
       admits to having formed an opinion about the case is subject to challenge
       for cause unless the examination shows unequivocally that the prospective
       juror can be impartial.

Id. “Jurors need not be totally ignorant of the facts of the case on which they sit [and]
[e]ven the formation of an opinion on the merits will not disqualify a juror if [he] can lay
aside [his] opinion and render a verdict based on the evidence presented in court.”
Howell, 868 S.W.2d at 249 (quoting State v. Sammons, 656 S.W.2d 862, 869 (Tenn.
Crim. App. 1982)). “An individual examined during voir dire is not required to have a
                                            - 56 -
complete lack of knowledge of the facts and issues to be selected as a juror.” State v.
Davidson, 121 S.W.3d 600, 612 (Tenn. 2003). “It is sufficient if the juror can lay aside
his impression or opinion and render a verdict based on the evidence presented in court.”
Irvin v. Dowd, 366 U.S. 717, 723 (1961); see also State v. Mann, 959 S.W.2d 503, 531
(Tenn. 1997).

        We conclude that the trial court properly exercised its discretion in denying
Defendant’s request to question prospective jurors about other college rape cases that had
been discussed recently in the national news. As this opinion has previously noted, the
trial court “shall permit the parties to ask questions [of prospective jurors] for the purpose
of discovering bases for challenge for cause and intelligently exercising peremptory
challenges.” Tenn. R. Crim. P. 24(b)(1). “[T]he scope and extent of voir dire is entrusted
to the discretion of the trial court, and the trial court’s rulings will not be reversed on
appeal absent an abuse of discretion.” State v. Schemeiderer, 319 S.W.3d 607, 626
(Tenn. 2010); see also State v. Irick, 762 S.W.2d 121, 125 (Tenn. 1988); State v. Poe,
755 S.W.2d 41, 45 (Tenn. 1988). Here, allowing Defendant to question the prospective
jurors about their knowledge of or opinions on other criminal cases unrelated to the
charges against Defendant would have inappropriately exposed the prospective jurors to
facts and issues outside the scope of the trial. Defendant is not entitled to relief on this
ground. See Poe, 755 S.W.2d at 45 (affirming the trial court’s denial of the defendant’s
request to question jurors regarding their “feelings” about the death penalty); see also
State v. Reid, 91 S.W.3d 247, 291-92 (Tenn. 2002) (affirming the trial court’s limitation
on group voir dire regarding questions about mental health issues).

        Further, Defendant has not presented any evidence that the jury was not fair and
impartial in its deliberations. Juror Morris and Juror Newberry both clearly stated that
they could be impartial if they were selected to serve on the jury for Defendant’s case.
Thus, the trial court properly denied Defendant’s motion to strike the venire on the
ground that prospective jurors had been exposed to information about Defendant’s case.
See State v. Sexton, 368 S.W.3d 371, 396 (Tenn. 2012); see also State v. Robert G.
Thornton, Jr., No. M2015-01895-CCA-R3-CD, 2017 WL 2704123, at *7-9 (Tenn. Crim.
App. June 22, 2017) (holding that the trial court did not err by failing to strike a juror for
cause who, although a victim of rape as a child, indicated that she would be impartial if
she served on the jury for the defendant’s trial for rape), no perm. app. filed; State v.
Todd Joseph Sweet, No. E2010-00729-CCA-R3-CD, 2011 WL 6813180, at *9-12 (Tenn.
Crim. App. Dec. 22, 2011) (holding that the trial court did not abuse its discretion by
failing to excuse a juror for cause who had prior knowledge of the offenses but affirmed
that she would be impartial), perm. app. denied (Tenn. Apr. 11, 2012); State v. Alejandro
Rivera, No. E2002-00491-CCA-R3-CD, 2003 WL 22843170, at *14-18 (Tenn. Crim.
App. Dec. 1, 2003) (holding that the trial court did not abuse its discretion by failing to
excuse two jurors for cause who had previously read about the offenses but stated that
                                            - 57 -
they could be impartial if selected to serve on the jury), perm. app. denied (Tenn. Mar.
16, 2009); State v. David Scarbrough, No. E1998-00931-CCA-R3-CD, 2001 WL
775603, at *8-10 (Tenn. Crim. App. July 11, 2001) (holding that the trial court did not
abuse its discretion by failing to excuse a juror for cause who had previously read about
the case but affirmed that she could be impartial), perm. app. denied (Tenn. Jan. 7, 2002);
State v. Letivias Prince, No. M1998-00005-CCA-R3-CD, 2000 WL 1133572, at *3-4
(Tenn. Crim. App. Aug. 10, 2000) (holding that the trial court did not abuse its discretion
by approving the jury panel when some jurors had previous knowledge about the case but
all confirmed that they could be impartial), perm. app. denied (Tenn. Mar. 5, 2001).

              (B) Trial court’s failure to timely admonish prospective jurors

        Tennessee Rule of Criminal Procedure 24(g) states that the trial court “shall give
the prospective jurors appropriate admonitions regarding their conduct during the
selection process.” Tenn. R. Crim. P. 24(g). “After jurors are sworn, the court shall also
give them appropriate admonitions regarding their conduct during the case.” Id. At both
times, the trial court shall give the venire or the jurors the following admonitions: (1) “not
to communicate with other jurors or anyone else regarding any subject connected with
the trial”; (2) “not to form or express any opinion about the case until it is finally
submitted to the jury”; (3) “to report promptly to the court[] . . . any incident involving an
attempt by any person improperly to influence any jury member” or “a juror’s violation
of any of the court’s admonitions”; (4) “not to read, hear, or view any news reports
concerning the case”; and (5) “to decide the case solely on the evidence introduced in the
trial.” Tenn. R. Crim. P. 24(g)(1)-(5).

        The plain language of Rule 24(g) does not clarify when the trial court must
admonish the prospective jurors during the voir dire process. While the better practice
for the trial court would have been to admonish the prospective jurors when they arrived
at the courthouse and jury selection began, as we have previously noted, Defendant has
not presented any evidence that any of the jurors who deliberated on his case were biased
or unfair. Further, Defendant had the opportunity to conduct individual voir dire of
prospective jurors who indicated that they had previous knowledge of the case. Thus, we
conclude that the trial court did not abuse its discretion by denying Defendant’s motion to
strike the venire on this ground. See State v. Vann, 976 S.W.2d 93, 115 (Tenn. 1998)
(citing State v. Garland, 617 S.W.2d 176, 187 (Tenn. Crim. App. 1981); State v. Kyger,
787 S.W.2d 13, 18-19 (Tenn. Crim. App. 1989)) (concluding that the trial court did not
abuse its discretion by admonishing the jury once, after it was selected and sworn,
because the defendant failed to show that “any of the jurors who actually sat on the case
were prejudiced by any publicity”).



                                            - 58 -
             (5) Denial of motion to suppress June 27, 2013 interrogation

       Defendant argues that the MNPD performed an unlawful interrogation when they
interviewed him at VPD headquarters without informing him of his Miranda rights or
giving him access to an attorney. He asserts that, based on the totality of the
circumstances, he was in police custody during the interview, and the MNPD officers
lacked probable cause to detain him. Defendant contends that Mr. Colon and two VPD
officers verbally coerced him to participate in the interview, and MNPD officers were
armed and blocked the door during the interview, factors which created a custodial
environment. Defendant further argues that “the initial possession and inspection of
[Defendant]’s cell phone and the subsequent issuance of a search warrant for the same
were derived directly from the involuntary statement given by [Defendant] and were each
therefore inadmissible.” The State contends in response that the trial court properly
denied Defendant’s motion to suppress because Defendant was not in custody when he
gave his statement and because Defendant voluntarily gave a statement to Detective
Mayo.

       On September 15, 2014, Defendant filed a motion to suppress “any and all items
collected by police pursuant to or under color of search warrants issued by the General
Sessions Court of Davidson County and executed on June 28, 2013 and/or thereafter and
items subsequently collected pursuant to search warrants issued by California courts.”
He argued that “all the search warrants issued in this matter subsequent to June 27,
2013[,] are the direct or indirect fruits of an unlawful investigative detention without
probable cause and/or coerced statement elicited from [Defendant] by police at the [VPD]
Headquarters on June 27, 2013.”

       On October 8, 2014, the trial court held a hearing on Defendant’s motion to
suppress. Gerald Leroy Black testified that he worked as the Assistant Dean of Students
and the Director of the Office of Student Accountability, Community Standards, and
Academic Integrity at Vanderbilt University in June 2013. Mr. Black explained that his
office “review[ed], investigate[d], and resolve[d] incidents of misconduct that violate[d]
[Vanderbilt’s] policies and standards.” On June 25, 2013, Mr. Black interviewed
Defendant “[t]o determine whether any university policies or community standards had
been violated[.]” He explained that the Vanderbilt Department of Athletics arranged for
Defendant to meet with Mr. Black in the Zerfoss Student Health Center on the Vanderbilt
campus. Mr. Black testified that he had no contact with the MNPD prior to the interview.
He also stated that he did not know whether a criminal act had been committed when he
interviewed Defendant.

       On cross-examination, Mr. Black stated that he received an email on the evening
of June 25 from a VPD officer and that he met with the officer on June 26. Additionally,
                                          - 59 -
he gave Defendant’s statement to VPD on June 26. Mr. Black agreed that some VPD
officers are armed, wear uniforms, and drive patrol cars. He explained that the Office of
Student Accountability, Community Standards, and Academic Integrity has the authority
to expel students who are “charged with and found responsible for violations of
university policy.” Mr. Black stated that, prior to beginning the interview with
Defendant, he informed Defendant that no charges had been brought and that the
interview was for a preliminary inquiry.

       James Franklin, who worked as the head coach of the Vanderbilt Football Team in
2013, testified that he learned about the offenses while he was on vacation in June 2013.
Mr. Franklin informed the football team that “there was a problem.” He stated that
Defendant and Co-defendants Batey, Banks, and McKenzie came to his office, but he
informed them that he could not discuss the case with them. He explained that Defendant
was suspended from the football team at the time Defendant came to his office, and
Defendant was later dismissed from the team.

       Defendant testified that, in 2013, he attended Vanderbilt University on a football
scholarship. On the evening of June 25, 2013, Defendant met with Mr. Franklin after Mr.
Franklin addressed the football team about the offenses involving E.L. Mr. Franklin met
with Defendant individually in his office with the door closed and informed Defendant
that he “needed to cooperate with police, answer every one of their questions, or [he]
would lose [his] scholarship.” On the evening of June 26, 2013, Defendant received a
phone call from Kevin Colon, the Associate Director of Athletics at Vanderbilt
University. Mr. Colon stated that Defendant “must meet with him the next morning at
seven a.m. to talk with the police; and, that if [Defendant] did not meet with him[,]
[Defendant] could lose [his] scholarship.” On the morning of June 27, Defendant met
with Mr. Colon at the Athletic Department building on the Vanderbilt University campus,
and Mr. Colon again informed Defendant that he could lose his scholarship if he did not
speak with the police. Mr. Colon told Defendant that he had been in constant contact
with the police. While Mr. Colon escorted Defendant to the VPD headquarters, he said
that Defendant could return to the football team if he answered all of the VPD’s
questions.

       Once they arrived at the VPD headquarters, Mr. Colon left Defendant with a VPD
sergeant. The sergeant escorted Defendant through a large room with armed, uniformed
police officers. Defendant stated that he felt intimidated by the uniformed, armed
officers. The sergeant took Defendant to a smaller room and closed the door, leaving
Defendant alone. Later, two armed, uniformed police officers entered the small room and
informed Defendant that he needed to speak to two men; the officers told Defendant that
he had to answer all the questions asked of him before he could leave and that his
scholarship was at risk. Defendant stated that he felt “uncomfortable” and “confined” by
                                         - 60 -
the officers’ statements regarding his scholarship. Defendant testified that the VPD
officers sat between Defendant and the door of the small room; their body language was
“intimidating[,]” “authoritative,” and “somewhat aggressive[,]” which scared Defendant.

       Defendant walked back through the room with the large group of armed,
uniformed VPD officers and met with Detective Mayo and Sergeant Shreeve in another
small room. The detectives sat between Defendant and the door to the small room; the
detectives were armed, and their police badges were visible on their street clothing.
Defendant testified that the detectives’ tone of voice was nice, but their body language
during the interview was aggressive. He explained that the detectives would move in
front of the door or rest their hand on their gun. Detective Mayo informed Defendant that
the door was unlocked, that Defendant could decline to answer their questions and leave
at any time, and that he was not under arrest. However, Defendant observed that the door
appeared to be locked when Detective Mayo attempted to leave to use the restroom
during the interview. Neither Detective Mayo nor Sergeant Shreeve informed Defendant
of his Miranda rights. When Defendant asked about an attorney during the interview, the
detectives informed him that they would let him know if he needed one. Defendant did
not feel like he could leave the interview.

       During the interview, the detectives informed Defendant that they needed his cell
phone. Defendant consented to retrieve his phone from his dorm room because he
believed that he would lose his scholarship if he did not comply. Detective Mayo and a
VPD officer drove Defendant back to his dorm room. The VPD officer accompanied
Defendant into Gillette Hall and took possession of Defendant’s phone. When Defendant
and the VPD officer returned to the vehicle, the officer gave Defendant’s phone to
Detective Mayo, who accessed the files and data on the phone. Once Defendant,
Detective Mayo, and the VPD officer returned to the VPD headquarters, Detective Mayo
and Detective Shreeve continued their interview with Defendant. Additionally, the
detectives asked for Defendant’s consent to search the contents of his phone and for a
saliva sample. Defendant stated that he spent approximately five hours at the VPD
station, including the trip to retrieve his phone. During this time, he felt like he could not
leave the VPD headquarters or decline to answer questions because if he did, he would
lose his scholarship.

       On cross-examination, Defendant estimated that there were at least twenty police
officers in the VPD headquarters. Defendant agreed that he consented to allow Detective
Mayo and Sergeant Shreeve to examine the contents of his cell phone, but he asserted
that he consented against his will. Defendant also agreed that he gave Detective Mayo
the password to unlock his phone during the interview. Defendant agreed that he was
never physically restrained with handcuffs.

                                            - 61 -
        Sergeant Shreeve testified that he supervised the sex crimes unit at the MNPD.
Sergeant Shreeve assisted Detective Mayo with the interview of Defendant on June 27,
2013, at the VPD headquarters. Sergeant Shreeve explained that the investigation into
the offenses against E.L. was in an early stage on June 27 because the MNPD first
learned of the surveillance video showing E.L. unconscious on the floor of Gillette Hall
on June 26 when Major Greg Robinson of the VPD called Sergeant Shreeve. After
viewing the surveillance video, the MNPD “determined that [the video] warranted more
additional investigation[,]” and the detectives “decided to identify the people that were in
that surveillance video and interview them.” Sergeant Shreeve explained that the VPD
identified E.L. as the unconscious female in the video, and the detectives interviewed
E.L. on the evening of June 26. He also stated that he did not have probable cause to
arrest Defendant based on the information available to the MNPD on the morning of June
27.

       On cross-examination, Sergeant Shreeve testified that, while he was in the VPD
headquarters with Detective Mayo and Defendant, there were only two or three
uniformed VPD officers in the building. Sergeant Shreeve also testified that the VPD
officers did not threaten Defendant verbally or through mannerisms or body language.
He stated that, during the interview, he sat to Defendant’s left and Detective Mayo sat on
Defendant’s right. He explained that he and Detective Mayo did not sit between
Defendant and the door of the interview room because the officers sat in front of
Defendant and to the side. Sergeant Shreeve and Detective Mayo were not in uniform,
but they were armed. Sergeant Shreeve explained that, per MNPD policy, he and
Detective Mayo kept their weapons covered during the interview because it was a public
setting. He denied that he or Detective Mayo made any threatening gestures towards
Defendant during the interview. Defendant never asked Sergeant Shreeve or Detective
Mayo why VPD officers told him he had to give a statement and answer questions, but
Detective Mayo stated that he could decline to answer questions and leave.

       Detective Mayo testified that he worked in the sex crimes unit of the MNPD. He
explained that the interview with Defendant occurred in Captain Harville’s office at the
VPD headquarters. He noted that the door was not locked because Sergeant Shreeve had
exited and reentered the room during the interview. During the interview, Detective
Mayo sat behind the desk in Captain Harville’s office, Sergeant Shreeve sat “in the front
corner of the room[,]” and Defendant sat “where the door was located.” Both Detective
Mayo and Sergeant Shreeve identified themselves to Defendant as officers of the MNPD.

       On cross-examination, Detective Mayo testified that he was not in uniform during
the interview with Defendant. He did not recall seeing any uniformed VPD officers
when he arrived at the VPD headquarters. During the interview, Defendant was not
physically restrained with handcuffs and “[a]ppeared fine, maybe a little nervous.”
                                           - 62 -
Defendant did not appear to be under the influence of any drug or intoxicating substance.
Detective Mayo did not instruct any VPD officers to threaten or coerce Defendant into
answering questions. Additionally, Detective Mayo did not observe that any VPD
officers threatened or coerced Defendant, and Defendant did not inform Detective Mayo
that he had been threatened or coerced. Detective Mayo began the interview with the
following statements:

              . . . [Defendant], I am Detective Jason Mayo. I work for the Metro
      Nashville Police Department. Okay? This is my sergeant, Mike Shreeve.
      Obviously we’re here to talk to you. Okay? You need to understand a
      couple of things before we talk. Okay? Number one, you are not under
      arrest. Okay? I want to make that perfectly clear. Okay? You are not
      under arrest and you do not have to speak to me. It is well within your right
      to tell me I don’t want to talk to you, okay, and you’ll get up and you’ll
      leave. Okay? You’re not being -- you know, the door’s closed for privacy
      only. It’s not locked. Okay? Matter of fact, if you want, you can reach
      over and check it. You don’t have to sit here and talk to us. But obviously,
      we’re here to get your side of a situation. And obviously you understand
      what situation we’re talking about. Okay?

               And I’ve kind of -- I’ve got some opinions on some things. Okay?
      And this could or could not be a way to help yourself. Okay? And if you
      want to cooperate and, you know, talk to us, great. We’ll sit here. We’ll
      talk to you all day long if we need to. Okay? I’m in no hurry. He’s in no
      hurry. I’m getting paid. Okay. So, but, obviously there’s -- there’s two
      sides to every story. Right? Right now I’ve got part of one, but I need to
      fill in a lot of blanks. Make sense? Okay.

               [Defendant], you understand everything I just said, right, that you
      don’t have to sit in here, right? You don’t have to talk to me. All right.
      With all that in mind, you’re willing to sit here and kind of talk to us for a
      little bit?

       Defendant agreed to speak with Detective Mayo and Sergeant Shreeve as long as
he felt comfortable. Later during the interview, Detective Mayo asked Defendant if he
consumed alcohol while at Tin Roof. Defendant stated that he did not “feel comfortable
answering that question.” Detective Mayo reminded Defendant that he was an MNPD
officer and did not work for Vanderbilt. Defendant responded that he did not believe that
the question was relevant. Detective Mayo stated that the question could be relevant but
that he was “not going to pressure [Defendant] to answer it.” Detective Mayo and
Sergeant Shreeve spoke in normal tones during the interview with Defendant.
                                          - 63 -
Additionally, neither officer displayed their weapon during the interview. Detective
Mayo agreed that Defendant never asked to leave the interview.

        Detective Mayo testified that, during the interview, he asked Defendant if he could
inspect Defendant’s cell phone. Defendant agreed to allow Detective Mayo to access the
contents of the phone. Detective Mayo asserted that he did not access the contents of the
cell phone before Defendant signed a consent form. He explained that he stayed at the
VPD headquarters while Defendant retrieved the phone. On redirect examination,
Detective Mayo stated that Defendant never asked for the advice of counsel during the
interview. Defendant asked to know if he needed to get a lawyer, and Detective Mayo
stated that he would give Defendant a “head’s up.”

       Kevin Colon testified that he worked as the Associate Athletic Director for
Vanderbilt University. He stated that on June 25, 2013, he took Defendant and other
student athletes to Mr. Black’s office. Mr. Colon stated that he made general
conversation with the group of students but did not speak individually with Defendant.
On June 27, Mr. Colon escorted Defendant to the VPD headquarters at Captain Harville’s
request. During the trip, Defendant asked Mr. Colon why he needed to go to the VPD
headquarters. Mr. Colon stated that he was unsure, but he assumed it was related to “the
previous weekend activities.” Mr. Colon testified that he did not threaten Defendant with
the potential of losing his scholarship, and he did not overhear anyone else threaten
Defendant with the loss of his scholarship.

        During cross-examination, Mr. Colon testified that he did not have any decision-
making authority over athletic scholarships. He explained that, when he asks students to
accompany him to Mr. Black’s office, students have the option to decline and have done
so in the past. He was unaware of any ongoing criminal investigation when he asked
Defendant to accompany him to the VPD headquarters, and he did not know that
Defendant would be meeting with Detective Mayo and Sergeant Shreeve at the
headquarters. He explained that he spoke with a member of the football staff about
escorting students to meet with Mr. Black and that the member gathered the students.
Mr. Colon waited with the remaining students while the students were interviewed one at
a time. Mr. Colon stated that the students “were told to place their phones on top of the
desk” in front of each student while they were waiting to be interviewed. Mr. Colon
observed Defendant use his phone while waiting to be interviewed. Mr. Colon agreed
that the students were told not to speak to one another while waiting to be interviewed.

      Captain Harville testified that he worked in the Criminal Investigation Division of
the VPD. He stated that he asked Mr. Colon to escort Defendant to the VPD
headquarters. After Defendant arrived with Mr. Colon, Captain Harville brought
Defendant into the headquarters and into his office to meet with Detective Mayo and
                                          - 64 -
Sergeant Shreeve. Captain Harville testified that there were no uniformed VPD officers
that displayed threatening body language towards Defendant. He explained that only
detectives and administrative staff work in the VPD headquarters, and he was dressed in
street clothes. He additionally stated that, while he carried a weapon, the weapon was
concealed under a vest. Captain Harville introduced himself to Defendant and informed
Defendant that Detective Mayo and Sergeant Shreeve wanted to speak with Defendant.
He did not threaten Defendant with any consequences if Defendant did not speak to
Detective Mayo and Sergeant Shreeve. During cross-examination, Captain Harville
agreed that there was an ongoing criminal investigation when he escorted Defendant to
meet with Detective Mayo and Sergeant Shreeve. However, he stated that Defendant was
not a target of the investigation at that point.

       On October 20, 2014, the trial court entered an order that denied Defendant’s
motion to suppress. The trial court found that Defendant “was not in custody [or] under
arrest and was not compelled to speak with the detective” when Sergeant Shreeve and
Detective Mayo interviewed Defendant at the VPD headquarters. The trial court
concluded that Detective Mayo and Sergeant Shreeve were not required to inform
Defendant of his Miranda rights. Additionally, the trial court found that “a valid search
warrant was issued and executed” on Defendant.16

        The applicable standard of review for suppression issues is well-established. A
trial court’s findings of fact are binding on this court unless the evidence in the record
preponderates against them. State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012) (citing
State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). “Questions of credibility of the
witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact.” Id. The prevailing
party is entitled to the strongest legitimate view of the evidence adduced at the
suppression hearing and all reasonable and legitimate inferences that may be drawn
therefrom. Id. The trial court’s application of law to the facts is reviewed under a de
novo standard with no presumption of correctness. Id. (citing State v. Walton, 41 S.W.3d
75, 81 (Tenn. 2001)). When reviewing a trial court’s ruling on a motion to suppress, this
court may consider the entire record, including the proof presented at the suppression
hearing as well as at trial. State v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005); v.
Walton, 41 S.W.3d at 81; State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998).


       16
            On December 15, 2014, Defendant filed a motion to reopen the suppression hearing. The
motion alleged that Defendant learned of new evidence that he was unable to include in his original
motion to suppress. Defendant asserted that the newly discovered evidence contradicted several aspects
of Detective Mayo’s testimony at the suppression hearing. A minute entry from January 9, 2015, reflects
that the trial court took this motion under advisement. On January 13, 2015, the trial court denied the
motion from the bench.
                                                - 65 -
       Both the United States and Tennessee Constitutions protect against compelled
self-incrimination. U.S. Const. amend. V; Tenn. Const. art. I, § 9. In order to protect
criminal defendants from self-incrimination, the United States Supreme Court has ruled
that “the prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of a defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.”
Miranda v. Arizona, 384 U.S. 436, 444 (1966); Walton, 41 S.W.3d at 82. As part of
those safeguards, police are required to inform persons who are subjected to custodial
interrogation: (1) that they have the right to remain silent; (2) that any statement made
may be used as evidence against them; (3) that they have the right to the presence of an
attorney during questioning; and (4) that if they cannot afford an attorney, one will be
appointed for them prior to questioning, if so desired. See Miranda, 384 U.S. at 444.

       Our supreme court has stated that the test to determine whether a defendant was in
custody is “whether, under the totality of the circumstances, a reasonable person in the
suspect’s position would consider himself or herself deprived of freedom of movement to
a degree associated with a formal arrest.” State v. Anderson, 937 S.W.2d 851, 855 (Tenn.
1996). Our supreme court set out the following non-exclusive factors to assist in this
determination:

      the time and location of the interrogation; the duration and character of the
      questioning; the officer’s tone of voice and general demeanor; the suspect’s
      method of transportation to the place of questioning; the number of police
      officers present; any limitation on movement or other form of restraint
      imposed on the suspect during the interrogation; any interactions between
      the officer and the suspect, including the words spoken by the officer to the
      suspect, and the suspect’s verbal or nonverbal responses; the extent to
      which the suspect is confronted with the law enforcement officer’s
      suspicions of guilt or evidence of guilt; and finally, the extent to which the
      suspect is made aware that he or she is free to refrain from answering
      questions or to end the interview at will.

Id. (internal citations omitted). The Supreme Court of the United States has recognized
that “Miranda warnings are not required ‘simply because the questioning takes place in
the station house, or because the questioned person is one whom the police suspect.’”
California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429
U.S. 492, 495 (1977)).

       After reviewing the record on appeal, we conclude that the trial court properly
denied Defendant’s motion to suppress because a reasonable person would not have felt
“deprived of freedom of movement to a degree associated with a formal arrest.” See
                                          - 66 -
Anderson, 937 S.W.2d at 855. Here, Mr. Colon escorted Defendant to meet with
Detective Mayo and Sergeant Shreeve on the Vanderbilt campus at the VPD
headquarters, which housed non-uniformed detectives and administrative personnel. Mr.
Colon did not threaten Defendant that he would lose his scholarship if he did not speak
with Detective Mayo and Sergeant Shreeve. When Defendant arrived at the VPD
headquarters, he met with Detective Mayo and Sergeant Shreeve in Captain Harville’s
unlocked office. Detective Mayo began the recorded interview by stating that Defendant
could refuse to answer any questions and could leave at any time. The recording reflects
that Detective Mayo and Sergeant Shreeve used a normal tone of voice when
interviewing Defendant. Further, it is clear that Defendant understood that he could
decline to answer questions because he refused to answer Detective Mayo’s question
about drinking at Tin Roof. During the interview, Detective Mayo asked for access to
Defendant’s cell phone, and Defendant agreed. Defendant also consented to give a DNA
sample to the MNPD officers and to conduct a controlled phone call to Co-defendant
Batey. Although the trial court did not make specific credibility findings in its order
denying the motion to suppress, the trial court impliedly discredited Defendant’s
testimony and credited the testimony of Captain Harville, Detective Mayo, Mr. Colon,
and Sergeant Shreeve. The evidence does not preponderate against the trial court’s
findings that Defendant “was not in custody [or] under arrest and was not compelled to
speak” during his interview at the VPD headquarters.

        When we consider the totality of the circumstances that surrounded Defendant’s
interview with Detective Mayo and Sergeant Shreeve, we conclude that Defendant was
not in custody. See State v. Eric Foster, No. E2018-01205-CCA-R3-CD, 2019 WL
1546996, *13-14 (Tenn. Crim. App. Apr. 9, 2019) (concluding that an interview between
the defendant and law enforcement were non-custodial when the detective’s demeanor
was “nonconfrontational[,]” the interviews occurred in locations convenient for the
defendant, and the defendant was not restrained in any way), no perm. app. filed. Thus,
Detective Mayo and Sergeant Shreeve were not required to inform Defendant of his
rights under Miranda prior to speaking with him. Defendant is not entitled to relief on
this ground.

                        (6) Exclusion of Defendant’s voicemail

       Defendant argues that the trial court erred in excluding Defendant’s voicemail on
Mr. Quinzio’s cell phone from evidence on the basis that it was self-serving hearsay
under Hall v. State, 552 S.W.2d 417 (Tenn. Crim. App. 1977). He asserts that the
message was not exculpatory and that he sought to introduce the statement to
“corroborate [Mr.] Quinzio’s interpretation of the message.” Thus, he argues that he was
not introducing the voicemail to prove the truth of the matter asserted but “to show the
basis upon which [Mr.] Quinzio believed [Defendant] was intoxicated.” Further,
                                         - 67 -
Defendant contends that the trial court’s exclusion of the voicemail violated his right to
present a defense.

         The State responds that the trial court properly acted within its discretion by
excluding Defendant’s self-serving hearsay statement because Defendant did not testify
and the statement was offered “to show that the defendant was not engaged in the acts
against the victim.” Additionally, the State argues that, even if the trial court erred in
excluding the statement, the error was harmless because of the overwhelming evidence of
Defendant’s guilt and because “evidence of the defendant’s intoxication was admitted at
trial[.]”

        During Defendant’s cross-examination of Mr. Quinzio, defense counsel asked the
trial court to play a recording of a voicemail that Defendant left on Mr. Quinzio’s phone.
The State objected, and the following exchange occurred:

              THE [TRIAL] COURT: Well, you know, statements of a defendant,
      self-serving statements, unless he testifies, they -- and is under Hall. You
      wanted to come back to say what?

            [DEFENSE COUNSEL]: We don’t have any way to play the
      statement, unfortunately. But Mr. Quinzio testified when this call was
      made [Defendant] was speaking gibberish, that he can barely understand.
      This is not a self-serving statement. What [Defendant] says in the
      statement is --

              [THE STATE]: We’re talking about two different statements, then.
      It’s the one that was given, when he called him during the incident. The
      other one he called him after the incident, according to the timeline.

      ....

             [THE STATE]: So, there’s two. The one where he’s talking
      gibberish is when he called him the first time.

             You could understand the one you’re talking about.           It’s not
      gibberish.

             [DEFENSE COUNSEL]: But, at any rate, actually, the one I wanted
      to play was the voicemail. I apologize if I wasn’t --

             THE [TRIAL] COURT: And what’s the content of it?
                                          - 68 -
       [DEFENSE COUNSEL]: The content of the voicemail -- and, again,
I apologize to the ladies that are present -- but, [Defendant] says: “They’re
pissing on her p[***]y. They’re pissing on her p[***]y.” He says that,
“Joey, please, you’ve got to call me, I’m in deep s[**]t.” And he sounds
very intoxicated in that phone call, and that’s the purpose of playing the
phone call. He’s not on there saying: “I didn’t do anything, I didn’t have
anything to do with this.” It’s not self-serving. It’s actually an admission
that he was present.

       [THE STATE]: It’s still a violation of Hall.

      [DEFENSE COUNSEL]: And it, also, forms a foundation for Mr.
Quinzio’s opinion that he was drunk. . . .

        THE [TRIAL] COURT: Well, it appears to be self-serving to me, if
it is a statement demonstrating that . . . somebody else is doing something
to her, which is causing me trouble, that is sort of self-serving.

       [DEFENSE COUNSEL]: But, Your Honor, in the first trial, the State
was allowed to play the last half of that statement, where he says: “Call me
I am in deep s[**]t.”

       [THE STATE]: Yeah, the State has the right to play it any time we
want to.

....

       [DEFENSE COUNSEL]: The first part of it wasn’t played, because
it was being tried with [Co-defendant] Batey. My point is, it’s not a self-
serving statement. It is a statement that Mr. Quinzio heard, can identify his
voice, and that is part of what he based his opinion on that he was
intoxicated.

      [THE STATE]: It makes no difference. The statement by a party
opponent can only be put in by us.

       THE [TRIAL] COURT: And that is so very, very true.

      [THE STATE]: I mean, he can testify he received two calls, and
based on those he had an opinion he was drunk, without having to get into
what was said.
                                   - 69 -
             THE [TRIAL] COURT: That is, also, true. But, any statements he
       made -- the State has a right to play it. You really don’t.

       On redirect examination, Mr. Quinzio agreed that he could understand the words
that Defendant said during the voicemail he left on Mr. Quinzio’s phone. On recross-
examination, defense counsel asked Mr. Quinzio if he remembered the words that
Defendant stated on the voicemail. The State objected on the ground that the content of
the voicemail was precluded under Hall. The trial court sustained the objection. A CD
of the voicemail recording was later admitted as Exhibit 62 for identification.

       The CD recording of the voicemail that Defendant left on Mr. Quinzio’s phone
contains the following message: “First of all, he was pissing on her p[***]y. He was
pissing on her. Hold on, hold on. [muffled noise/unintelligible] Dude, you gotta call me
back bro. I’m in deep s[**]t. You gotta call me back. [muffled noise/unintelligible]”

                                        (A) Hearsay

       Under the Tennessee Rules of Evidence, “hearsay” is any statement, other than
one made by the declarant while testifying at trial or in a hearing, offered into evidence to
prove the truth of the matter asserted. Tenn. R. Evid. 801. Hearsay statements are not
admissible unless they fall within one of the evidentiary exceptions or some other law
renders them admissible. Tenn. R. Evid. 802.

       Our supreme court has addressed the standard of review applicable to the review
of hearsay statements:

              The standard of review for rulings on hearsay evidence has multiple
       layers. Initially, the trial court must determine whether the statement is
       hearsay. If the statement is hearsay, then the trial court must then
       determine whether the hearsay statement fits within one of the exceptions.
       To answer these questions, the trial court may need to receive evidence and
       hear testimony. When the trial court makes factual findings and credibility
       determinations in the course of ruling on an evidentiary motion, these
       factual and credibility findings are binding on a reviewing court unless the
       evidence in the record preponderates against them. Once the trial court has
       made its factual findings, the next questions—whether the facts prove that
       the statement (1) was hearsay and (2) fits under one the exceptions to the
       hearsay rule—are questions of law subject to de novo review.

Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015) (internal citations omitted).
                                           - 70 -
      In Hall, this court stated the following about the admission of self-serving hearsay:

              A declaration made by a defendant in his own favor, unless part of
      the res gestae or of a confession offered by the prosecution, is not
      admissible for the defense. A self-serving declaration is excluded because
      there is nothing to guarantee its testimonial trustworthiness. If such
      evidence were admissible, the door would be thrown open to obvious
      abuse: an accused could create evidence for himself by making statements
      in his favor for subsequent use at his trial to show his innocence.

552 S.W.2d at 418 (quoting Wharton’s Criminal Evidence, 13th Edition, § 303); see also
State v. Brooks, 909 S.W.2d 854, 862-63 (Tenn. Crim. App. 1995) (affirming the
exclusion of the defendant’s statement as self-serving hearsay); State v. Turnmire, 762
S.W.2d 893, 897 (Tenn. Crim. App. 1988) (affirming the exclusion of the defendant’s
statement as self-serving hearsay); State v. King, 694 S.W.2d 941, 945 (Tenn. 1985)
(determining that defense counsel was prohibited from reading the defendant’s statement
into the record). “To determine whether a statement is predominately self-serving or
disserving, we look to the totality of the circumstances in which the statement was
made.” State v. Dotson, 254 S.W.3d 378, 393-94 (Tenn. 2008).

        As Defendant notes, this court has also previously noted that “no general rule of
evidence excludes statements merely because they are self[-]serving. Instead, most self-
serving statements are excluded not solely because they are self-serving but instead
because they constitute inadmissible hearsay.” Tony A. Phipps v. State, No. E2008-
01784-CCA-R3-PC, 2010 WL 3947496, at *8 (Tenn. Crim. App. Oct. 11, 2010) (internal
citations omitted), no perm. app. filed. The “self-serving hearsay” rule “simply
acknowledges that such statements constitute hearsay if offered to prove the truth of the
matter asserted therein and, like other hearsay evidence, are unreliable.” State v. George
Glenn Faulkner, No. M1998-00066-CCA-R3-CD, 2000 WL 711144, at *10 (Tenn. Crim.
App. June 2, 2000) (citing Neil P. Cohen, et al., Tennessee Law of Evidence § 803(1.2).2,
at 514 (3d ed.1995)), perm. app denied (Tenn. Jan. 16, 2001). “Thus, if a defendant’s
self-serving statement is offered for a purpose other than proving the truth of the matter
asserted therein, the statement does not constitute hearsay and will be admissible unless
excluded pursuant to some other rule of evidence.” Id. (citing State v. John Parker Roe,
No. 02C01-9702-CR-00054, 1998 WL 7107, at *11 (Tenn. Crim. App. Jan. 12, 1998),
perm. app. denied, (Tenn. Jan. 12, 1998), cert. denied, 526 U.S. 1159 (1999)).

       At trial, Defendant sought to admit the voicemail to show that he was too
intoxicated to be criminally responsible for the conduct of the Co-defendants. Even
though the voicemail reinforces Defendant’s theory because Defendant slurs his words
and sounds intoxicated, the trial court implicitly rejected Defendant’s proposed non-
                                          - 71 -
hearsay purpose for admitting the voicemail by concluding that the voicemail was self-
serving hearsay. As Defendant notes, the voicemail inculpates him by placing him at the
scene while the offenses were being committed. Additionally, it is reasonable to interpret
Defendant’s statement that he was in “deep s[**]t” as an acknowledgement that he has
violated either Vanderbilt’s code of student conduct or a criminal law. Defendant never
states that he was intoxicated or mentions alcohol or drugs. We conclude that the trial
court erred in excluding the voicemail as hearsay because the statements in the voicemail
were not offered for the truth of the matter asserted. In any event, based on the
overwhelming evidence, the exclusion of the voicemail was harmless error. Defendant
is not entitled to relief on this ground.

                               (B) Right to present a defense

        We additionally conclude that the trial court’s exclusion of the voicemail did not
violate Defendant’s right to present a defense. As noted in our summary of the evidence,
Mr. Quinzio testified that Defendant called him early in the morning of June 23 and that,
during the phone call, Defendant sounded intoxicated. Mr. Quinzio told Detective Mayo
that he had never seen Defendant that intoxicated and that Defendant was not a big
consumer of alcohol. He also told Detective Mayo that he knew “what was going on[,]”
that it “was wrong[,]” but that Defendant did not. Thus, Defendant clearly presented
evidence through Mr. Quinzio’s testimony that he was intoxicated during the offenses.
Defendant is not entitled to relief on this ground.

                                   (7) Jury instructions

       Defendant argues that the trial court erred in its instruction of the jury on criminal
responsibility. The instruction given by the trial court is set out below, with the portions
that Defendant challenges in bold font:

              Criminal Responsibility. The defendant is criminally responsible as
       a party to the offenses of aggravated rape and aggravated sexual battery if
       the offenses were committed by the defendant’s own conduct, by the
       conduct of another for which the defendant is criminally responsible, or
       both. Each part[y] to the offense may be charged with the commission of
       the offense.

              The defendant is criminally responsible for an offense committed by
       the conduct of another if, acting with the intent to promote or assist the
       commission of the offense, or to benefit in the proceeds or results of the
       offense, the defendant solicits, directs, aids or attempts to aid another
       person to commit the offense.
                                           - 72 -
             A defendant who is criminally responsible for an offense may be
      found guilty not only of that offense, but also for any other offense or
      offenses committed by another, if you find beyond a reasonable doubt that
      the other offense or offenses committed were natural and probable
      consequences of the original offense for which the defendant is found
      criminally responsible, and that the elements of the other offense or
      offenses that accompanied the original offense have been proven beyond a
      reasonable doubt.

             In deciding the criminal responsibility of the defendant, the jury may
      also take into consideration any evidence offered that the defendant
      attempted to thwart or withdraw from any of the offenses that followed
      from the original offense.

             To find a defendant criminally responsible for the acts of another, it
      is not necessary that you find the defendant was present or that the
      defendant took a physical part in the crime; encouragement of the principal
      offender is sufficient. However, mere presence during the commission of
      the offense is not sufficient to support a conviction.

             Presence and companionship with the perpetrator of a felony
      before and after the commission of the offense are circumstances from
      which one’s participation in the crime may be inferred. No particular
      act need be shown. The requisite criminal intent may be inferred from
      the defendant’s presence, companionship and conduct before and after
      the offense.

             Before you find the defendant guilty of being criminally responsible
      for said offenses committed by the conduct of another, you must find that
      all the essential elements of said offenses have been proven by the State
      beyond a reasonable doubt.

      ....

             The required culpable mental state for criminal responsibility
      for conduct of another for any charged or included offense contained
      in these instructions is knowingly.

      The United States Constitution and the Tennessee state constitution guarantee
criminal defendants the right to trial by jury. U.S. Const. amend. VI; Tenn. Const. art. I,
                                          - 73 -
§ 6 (providing “that the right of trial by jury shall remain inviolate”). This right includes
an entitlement to a correct and complete charge of the law. State v. Page, 184 S.W.3d
223, 229 (Tenn. 2006) (citing State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)).
Moreover, it is well-established that the right to a correct and complete charge of the law
includes the right to jury instructions “on each and every lesser[-]included offense
embraced within the charged offense(s) and supported by the proof [.]” State v. Davis,
266 S.W.3d 896, 902 (Tenn. 2008) (citing State v. Ely, 48 S.W.3d 710, 727 (Tenn.
2001)). “Any omission in the instructions in reference to an element of the offense which
might lessen the burden of proof placed upon the state is constitutional error and requires
a new trial unless the error is harmless beyond a reasonable doubt.” State v. Hill, 118
S.W.3d 380, 385 (Tenn. Crim. App. 2002) (citing State v. Walker, 29 S.W.3d 885, 893-
94 (Tenn. Crim. App. 1999)). “Jury instructions must be reviewed in their entirety.”
State v. Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008) (citing State v. Guy, 165 S.W.3d 651,
659 (Tenn. Crim. App. 2004)). Whether the trial court properly instructed the jury on a
certain offense is a mixed question of law and fact, which this court reviews de novo with
no presumption of correctness. State v. Howard, 504 S.W.3d 260, 267 (Tenn. 2016)
(citing State v. Thorpe, 463 S.W.3d 851, 859 (Tenn. 2015)).

         “A person is criminally responsible as a party to an offense, if the offense is
committed by the person’s own conduct, by the conduct of another for which the person
is criminally responsible, or by both.” Tenn. Code Ann. § 39-11-401(a) (2013). “A
person is criminally responsible for an offense committed by the conduct of another, if[] .
. . [a]cting with intent to promote or assist the commission of the offense, or to benefit in
the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid
another person to commit the offense[.]” Tenn. Code Ann. 39-11-402(2) (2013).

                  (A) Instruction on mens rea for criminal responsibility

        Defendant argues that the trial court erred by instructing the jury that the “required
culpable mental state for criminal responsibility for conduct of another for any charged or
included offense contained in these instructions is ‘knowingly.’” He asserts that this
language is not included in the Tennessee Pattern Jury Instructions for criminal
responsibility and that this instruction “lessened the burden of proof on the State and
created constitutional error requiring a new trial.” Defendant argues that the trial court
should have instructed the jury that the culpable mental state was intentional. Defendant
concedes in his appellate brief that he did not lodge a contemporaneous objection when
the trial court gave the instruction and did not include the issue in his motion for new trial




                                            - 74 -
and, therefore, is not entitled to plenary review.17 He argues that this instruction rises to
the level of plain error.

        The State responds that Defendant is not entitled to plain error relief because he
has not established that the instruction breached a clear and unequivocal rule of law. The
State contends that the instruction, “when read as a whole, accurately reflected the law”
because the criminal responsibility instruction “provides that the defendant must have
knowingly and with the intent to promote or assist the commission of the offense,
solicited, directed, aided, or attempted to aid another person to commit the offense.” The
State also argues that Defendant has not established that, if the trial court erred by issuing
the instruction, consideration of the error is necessary to do substantial justice because the
remainder of the jury instruction was accurate and because “the evidence presented at
trial overwhelmingly established that . . . [D]efendant actively promoted and assisted in
the offenses in this case.”

        Defendant is correct that the pattern jury instruction for criminal responsibility
does not contain the word “knowing.” See 7 Comm. on Pattern Jury Instructions
(Criminal) of the Tenn. Judicial Conference, Tennessee Pattern Jury Instructions
Criminal 3.01 (19th ed. 2015). However, the Tennessee Supreme Court previously stated
that “the pattern instructions are not mandatory but merely suggestions, and a trial court
is not required to use them in instructing a jury.” Harris, 839 S.W.2d at 74 (citing State
v. Martin, 702 S.W.2d 560, 564, n.5 (Tenn. 1985)). Additionally, “pattern jury
instructions are only suggestions for a trial court because they are ‘not officially approved
by [the Tennessee Supreme Court] or by the General Assembly and should be used only
after careful analysis.’” Rimmer, 250 S.W.3d at 30 (quoting State v. Hodges, 944 S.W.2d
346, 354 (Tenn. 1997)). “Thus, pattern jury instructions are not entitled to any particular
deference on review.” Id.; see also State v. Clark, 452 S.W.3d 268, 295 (Tenn. 2014)
(pattern jury instructions are not given greater deference than the trial court’s actual
instructions).

       In State v. Maxey, the defendant argued that the State failed to establish beyond a
reasonable doubt that she intended for the co-defendant to rape the victim. 898 S.W.2d
756, 757 (Tenn. Crim. App. 1994). This court stated the following about the mens rea
required to establish a defendant’s guilt under a theory of criminal responsibility:



        17
           “An erroneous or inaccurate jury charge, as opposed to an incomplete jury charge, may be
raised for the first time in a motion for a new trial and is not waived by the failure to make a
contemporaneous objection.” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005). Defendant argues that
the instruction was erroneous, but this issue is waived because he failed to include it in his motion for
new trial.
                                                 - 75 -
       [Tennessee Code Annotated section] 39-11-402(2) requires proof of intent
       to promote or assist the commission of the offense. . . . [Tennessee Code
       Annotated section] 39-11-302(a) (1991) states that a person acts
       intentionally with respect to the nature of conduct or to a result of conduct
       when it is a person’s conscious objective or desire to engage in the conduct
       or cause the result. The Sentencing Commission Comments to this
       definition explain that “[i]ntentional conduct or an intentional result occurs
       when the defendant wants to do the act or achieve the criminal objective. A
       defendant acts knowingly, on the other hand, when he or she is aware of the
       conduct or is practically certain that the conduct will cause the result,
       irrespective of his or her desire that the conduct or result will occur.” The
       plain terms of [Tennessee Code Annotated section] 39-11-402(2) . . .
       indicate that proof of negligence or recklessness does not suffice to make a
       person criminally liable. The intent required by these subsections is
       demanding. It is necessary that the defendant “in some way associate
       himself with the venture, act with knowledge that an offense is to be
       committed, and share in the criminal intent of the principal in the first
       degree.” Hembree v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976).
       The defendant must “knowingly, voluntarily and with common intent unite
       with the principal offenders in the commission of the crime.” State v.
       Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988).

Id.; see also State v. Pope, 427 S.W.3d 363, 369 (Tenn. 2013), State v. Dorantes, 331
S.W.3d 370, 386 (Tenn. 2011), State v. Sherman, 266 S.W.3d 395, 408 (Tenn. 2008),
State v. Carson, 950 S.W.2d 951, 954 (Tenn. 1997); State v. Antonio M. Crockett, No.
M2015-00566-CCA-R3-CD, 2016 WL 769890, at *13 (Tenn. Crim. App. Feb. 20, 2016)
(to be convicted under a theory of criminal responsibility, “the evidence must establish
that the defendant in some way knowingly and voluntarily shared in the criminal intent of
the crime and promoted its commission”), perm. app. denied (Tenn. June 23, 2016).

        Here, the record clearly establishes what occurred during trial. We conclude that
the trial court did not breach “a clear and unequivocal rule of law” by including the
definition of “knowing” in the jury instructions. See Adkisson, 899 S.W.2d at 641.
While section 39-11-402(2) only mentions “intent,” our case law surrounding the theory
of criminal responsibility requires that a defendant “act with knowledge that an offense is
to be committed[] and share in the criminal intent” of the principal. Hembree, 546
S.W.2d at 239. Thus, there is no “clear and unequivocal rule of law” that only the mens
rea of intent is applicable to the theory of criminal responsibility. Additionally, we note
that the trial court instructed the jury on the definition of “intentionally” at the beginning
of the jury charge. Defendant is not entitled to plain error relief on this ground.

                                            - 76 -
                    (B) Instruction on “presence and companionship”

       Defendant also avers that the trial court erred by granting the State’s request for a
special instruction that the jury could infer participation in offenses based on Defendant’s
presence and companionship with his co-defendants. He argues that “the addition of the
‘presence and companionship’ instruction was misleading and confusing to the jury.”
The State responds that Defendant is limited to the argument he made regarding this
instruction at trial—that the instruction was improper because the application of this
instruction is limited to “non-target offenses[.]” The State additionally notes that
Defendant did not provide any case law supporting this argument in his appellate brief.

     This court has previously addressed the application of the “presence and
companionship” aspect of criminal responsibility:

              While guilt by association is a doctrine that is thoroughly
       discredited, see Uphaus v. Wyman, 360 U.S. 72, 79[] . . . (1959), this court
       has noted that, under the theory of criminal responsibility, presence and
       companionship with the perpetrator of a felony before and after the
       commission of the crime are circumstances from which an individual’s
       participation may be inferred. See State v. Ball, 973 S.W.2d 288, 293
       (Tenn. Crim. App. 1998). No particular act need be shown, and the
       defendant need not have taken a physical part in the crime. See id. Mere
       encouragement of the principal will suffice. See State v. McBee, 644
       S.W.2d 425, 428 (Tenn. Crim. App. 1982).

State v. Phillips, 76 S.W.3d 1, 9 (Tenn. Crim. App. 2001); see also State v. Watson, 227
S.W.3d 622, 639 (Tenn. Crim. App. 2006) (citing Ball, 973 S.W.2d at 293).

       Defendant argued that the trial court should omit the “presence and
companionship” portion of the criminal responsibility instruction on the basis that the
phrase only applies to “non-target offenses.” The State correctly notes that Defendant is
limited to the argument that he raised at trial. See State v. Dobbins, 754 S.W.2d 637, 641
(Tenn. 1988); see also State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001). We
conclude that the trial court properly instructed the jury that it could infer Defendant’s
participation in the offenses against E.L. by his presence at the scene and companionship
with Co-defendants Banks, Batey, and McKenzie. It is well-settled that “presence and
companionship” with the principle offenders is a circumstance that the jury can consider
in determining whether the defendant is criminally responsible for the acts of another.
See, e.g, Phillips, 76 S.W.3d at 9. Here, “presence and companionship” between
Defendant and the Co-defendants was fairly raised by the proof; all four played on the
Vanderbilt football team, they were all present in Defendant’s dorm room during the
                                           - 77 -
offenses, and they spent time together after the offenses to discuss what they should
disclose to authorities. Additionally, after the Vanderbilt University Student Conduct
officials questioned Defendant and Co-defendants McKenzie, Batey, and Banks, the four
men met at a Popeye’s restaurant and discussed what each had told the Student Conduct
officials about the offenses. Thus, the trial court properly instructed the jury that it could
consider Defendant’s presence and companionship with the Co-defendants.

                           (8) Improper prosecutorial argument

       Closing argument “is a valuable privilege that should not be unduly restricted.”
State v. Smith, 527 S.W.2d 737, 739 (Tenn. 1975). Attorneys are given wide latitude
when arguing before the jury, and the trial court has broad discretion in controlling their
arguments, which will be reversed only upon an abuse of discretion. State v. Thomas,
158 S.W.3d 361, 412-13 (Tenn. 2005). “However, closing argument must be temperate,
must be predicated on evidence introduced during the trial of the case[,] and must be
pertinent to the issues being tried.” Id. at 413. This court has recognized five general
areas of improper prosecutorial argument in closing argument: (1) intentionally
misstating the evidence or misleading the jury as to the inferences it may draw; (2)
expressing personal beliefs or opinions as to the truth or falsity of any testimony or as to
the defendant’s guilt; (3) inflaming or attempting to inflame the passions or prejudices of
the jury; (4) injecting broader issues other than guilt or innocence of the defendant; and
(5) arguing or referring to facts outside the record unless such facts are matters of
common public knowledge. State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003).

       Improper argument constitutes reversible error if “the conduct was so improper or
the argument so inflammatory that it affected the verdict to the [defendant’s] detriment.”
Id. at 5. To determine the prejudicial impact of any improper prosecutorial argument,
this court should consider: (1) the facts and circumstances of the case; (2) any curative
measures undertaken by the court and the prosecutor; (3) the intent of the prosecution; (4)
the cumulative effect of the improper conduct and any other errors in the record; and (5)
the relative strength and weakness of the case. Id. at 5-6 (citing Judge v. State, 539
S.W.2d 340, 344 (Tenn. Crim. App. 1976).

           (A) Improper argument that defense counsel was misleading the jury

        Defendant argues that in the following statements, the State “engaged in improper
argument by denigrating defense counsel and arguing that defense counsel was
attempting to mislead the jury[.]” The State responds that Defendant has waived plenary
review of these comments because he failed to lodge a contemporaneous objection during
closing arguments. Further, the State argues that Defendant is not entitled to plain error
relief because he has not established that the comments breached a clear and unequivocal
                                            - 78 -
rule of law. We have set out large quoted portions of the closing arguments for context,
but the statements that Defendant specifically objects to are shown in bold font:

             And then [Detective Gish] talks about this preliminary report he did
      for [the State], that the times are wrong, and he explained that to you. That
      there was a bug in the software from Oxygen that caused the times to be off
      an hour. And it was fixed. They got new software. That was a preliminary
      report. And what does it show? It shows what you know from the
      evidence. From her receipt on her Gold Card. She got there right at
      midnight. You hear all the witnesses say she got there right at midnight.
      So what does that have to do with the case? Nothing. Another red
      herring to throw out there to attack the police.

             And he kept talking about all the photos weren’t date stamped.
      Well, you heard Det. Gish say yes, I can show from the computer when this
      photograph was taken. And he did. Because we heard so much from
      [defense counsel] about the computer being in the room when the police
      searched it. You saw photographs. And then you saw the photograph
      when it was recovered the next day. That was shown to you. So don’t be
      misle[d].

             Another thing was a big photo sequence that we had to go through
      an hour on that one photograph was moved before it went to the server.
      And he showed you what the photograph was. It was a picture of the front
      of Gillette Hall, which they moved up to the front of the photographs.
      That’s great police misconduct, wasn’t it? Another total red herring to
      distract you from the evidence.

      ....

             And then let’s attack the victim. Let’s attack her. You know. She
      gets up and does menial things like go to the restroom and get a drink.
      Doesn’t commit crimes. Do a lot of things. Things you might be able to do
      in a confused state from whatever was in her body at the time. She didn’t
      commit a crime. And he talks about her smiling when she walked out at
      noon, by the way. Several hours later. And she was looking at her phone.
      Just because she didn’t feel good, she felt horrible, doesn’t mean you can’t
      see something on your phone that might be funny.

             And he talked about the blue drink, whatever this was, this transcript
      today about Miss Martel trying to recall and said oh, yeah, I said that, but
                                         - 79 -
then right after it I said I’m not sure that’s what was said. And when I
questioned her, she said yeah, she could’ve said that she bought me a drink,
she could’ve said it was another drink, I don’t know, I really don’t know.
Does that impeach [E.L.]? And did she say he was buying her drinks like
they said? No. She said another woman was buying drinks and
[Defendant] was bringing them to me. She didn’t say that.

       Yes, let’s attack the victim. And then let’s attack Det. Mayo. What
did he not do? You know, all he had done when he talked to [Defendant]
was look at a few still shots. So, he listened to [Defendant]. He did what
police do. Tried to befriend him, tried to get him to keep talking. And he
kept saying well, he believed him, he believed him. Maybe he did at that
time. He didn’t know anything. He hadn’t seen those videos. He hadn’t
even seen the surveillance video. He hadn’t found out about the destruction
of evidence. They didn’t ask him on that witness stand do you believe
[Defendant] today. No. Another red herring.

....

        Nitpick the police. Don’t worry about the evidence. Let’s talk
about the police. Said [Defendant] cooperated with the police. He lied to
Vanderbilt. He lied to the police initially until he started sweating. And he
said I don’t trust those other guys, they’re liable to say something bad about
me. And then he told the police part of the truth. Only part. He didn’t tell
them about it was his condoms. He didn’t tell them about the porno. He
didn’t tell them about deleting everything. He didn’t tell them about a lot
of things. He gave them his phone. Yeah. That’s true, after it was deleted,
though. And even after calling the police, that’s when he went to
California and destroyed the cell phones, tried to destroy hard drives.

....

       And they want to say the police didn’t investigate [Mr. Prioleau’s]
bedding. Well, they heard from [Defendant]. He didn’t say he did
anything. You heard from [Co-defendant] McKenzie. He said he didn’t do
anything. You heard from Mr. Prioleau. He said he didn’t do anything.
And do you really think that they were going to come in and say hey, let’s
throw this victim up in the top bunk, that’ll be a good place, let’s all get up
there on the top bunk. Does that make any sense? No. It’s just another
red herring thrown out there for you to consider.

                                    - 80 -
        The record reflects that Defendant did not object during the above quoted portions
of the State’s closing argument. Thus, he is not entitled to plenary review of this issue,
and we will review only for plain error. “The prosecution is not permitted to reflect
unfavorably upon defense counsel or the trial tactics employed during the course of the
trial.” State v. Annette Reynolds, No. M2003-02991-CCA-R3-CD, 2005 WL 468318, at
*6 (Tenn. Crim. App. Feb. 28, 2005) (citing Dupree v. State, 410 S.W.2d 890 (Tenn.
1967); Moore v. State, 17 S.W.2d 30 (Tenn. 1929); Watkins v. State, 203 S.W. 344
(Tenn. 1918); McCracken v. State, 489 S.W.2d 48 (Tenn. Crim. App. 1972)), no perm.
app. filed. Tennessee courts have previously concluded that the State committed
harmless error by stating in closing argument that defense counsel was “blowing smoke
in the face of the jury[,]” see State v. West, 767 S.W.2d 387, 394-95 (Tenn. 1989), that
the defense used “smoke screens” to “divert” the jury’s attention away from “ugly facts”
that pointed to the defendant’s guilt, see State v. Leland Ray Reeves, No. 01C01-9711-
CR-00515, 1999 WL 155926, at *13-14 (Tenn. Crim. App. Mar. 23, 1999), perm. app
denied (Tenn. Oct. 25, 1999), pet. for rehearing denied (Tenn. Crim. App. Mar. 6, 2000),
overruled on other grounds by State v. Collier, 411 S.W.3d 886, 899-900 (Tenn. 2013),
or that defense counsel was “trying to muddy the waters[,]” see State v. Edward Lee
Mooney, Sr., No. 02C01-9508-CC-00216, 1998 WL 906477, at *5-6 (Tenn. Crim. App.
Dec. 30, 1998).

        In contrast, in State v. Lance Burton, this court concluded that the State did not err
when, in its rebuttal closing argument, it “characterized defense counsel’s closing
argument that the needle was not a deadly weapon as ‘defense attorney tricks, defense
attorney strategy.’” No. W2009-01875-CCA-R3-CD, 2010 WL 3244949, at *5 (Tenn.
Crim. App. Aug. 17, 2010), perm. app. denied (Tenn. Jan. 13, 2011). This court further
noted that, “in response to defense counsel’s argument that the victim’s credibility was
questionable because she did not appear to be hysterical during the incident, the
prosecutor further argued that ‘it’s offensive that [defense counsel] suggests that because
she’s a woman she should be hysterical, falling out.’” Id. (alteration in original). This
court concluded that the defendant failed to establish that the State’s comments breached
a clear and unequivocal rule of law because the statements “were in direct response to
defense counsel’s arguments concerning the credibility of the victim and the application
of the law to the facts of this case.” Id.

       Here, the previously quoted portions of the State’s closing argument occurred
during the State’s rebuttal argument. During Defendant’s closing argument, defense
counsel specifically argued that Detective Gish’s testimony was not credible and
discussed the time-stamp on the surveillance videos from Gillette Hall; that the
surveillance video showed E.L. moving around the second floor even though she testified
that she could not remember anything until she woke up around 8 a.m.; that Detective
Mayo told E.L. that he believed Defendant’s statement was truthful; and that Defendant
                                            - 81 -
assisted with the MNPD’s investigation. Defense counsel also discussed that Detective
Mayo “did not have Mr. Prioleau’s bedding taken by the CSI lab[.]” We conclude that
the State’s references to “red herrings” were not improper because the State was
responding to Defendant’s closing argument. See Lance Burton, 2010 WL 3244949, at
*5. Thus, Defendant has not shown that the State breached a clear and unequivocal rule
of law, see Adkisson, 899 S.W.2d at 642, and Defendant is not entitled to plain error
relief.

       (B) Statements calculated to inflame the passions or prejudices of the jury

       Defendant argues that the State made the following remarks during closing
argument to intentionally inflame the passions or prejudices of the jury. The State again
responds that Defendant has waived plenary review of these comments because he failed
to lodge a contemporaneous objection during closing arguments. Further, the State
argues that Defendant has not established that the comments below breached a clear and
unequivocal rule of law because the statements were accurate references to or inferences
based on the evidence introduced at trial.

             Now, that’s [E.L.] a little after midnight, June 23rd, 2013. And
      that’s her after meeting . . . [Defendant], the man she trusted, a few hours
      later. Dumped out there like throw away food. Dumped out in a public
      hallway where anybody can walk in and see her. Like a piece of trash.
      Experience she’ll have to carry with her the rest of her life.

            Here’s [Defendant] over at East Hall at four o’clock in the
      morning. Watch him. He’s having a good time. He’s laughing. Look
      at him. He’s really concerned about her, isn’t he? Laying over there
      unconscious. They’re having a big time.

             That’s the evidence in this case, ladies and gentlemen. [E.L.] had
      the courage to come in here and ask for justice for what was done do her
      that night. She had the courage to come in here and face [Defendant],
      the person she trusted.

              I’m just asking you to have the same courage, follow your oath,
      and apply the law to the evidence as [the trial court] tells you. And if
      you do that, follow your heart and your mind, you know what a just verdict
      is. If you do that, justice will be served.




                                         - 82 -
       At trial, Defendant argued that the previously-quoted statements violated the trial
court’s order to exclude references to date rape drugs.18 As we have previously noted,
Defendant cannot alter his grounds for objecting between trial and appeal. See Dobbins,
754 S.W.2d at 641; see also Alder, 71 S.W.3d at 303. We conclude that Defendant has
waived plenary review of this issue because he did not object to this portion of the State’s
rebuttal argument on the ground that the State intentionally sought to inflame the
passions or prejudices of the jury.

       We further conclude that Defendant has not established that the State’s comments
breached a clear and unequivocal rule of law. See Adkisson, 899 S.W.2d at 641. Here,
the comments that Defendant now objects to are inferences fairly based on evidence that
was introduced at trial. The State introduced surveillance video footage from the second
floor of Gillette Hall during the offenses, as well as video clips of the offenses that were
recovered from cell phones. These pieces of evidence depicted E.L. lying on the floor of
the hallway and the floor of Defendant’s dorm room unconscious. The State’s comment
that E.L. looked like a piece of trash or food that had been dumped was an argument
based on the previously discussed evidence. While the video surveillance footage of East
Hall does not appear to depict Defendant laughing, we conclude that the State’s comment
about Defendant’s jovial demeanor was an unintentional misstatement. A reasonable
observer could conclude that Defendant was laughing or joking with Co-defendants
Banks, Batey, and McKenzie while they were carrying E.L. into Gillette Hall and up to
the second floor. Additionally, Defendant can be heard laughing on the video recordings
of the offenses. Lastly, Ms. Miller, E.L.’s roommate, stated that she was not concerned
that E.L. stayed at Tin Roof with Defendant because “they had been hanging out for a
while, so [E.L. and Ms. Miller] trusted him.” Thus, the above quoted portions of the
State’s closing argument were arguments based on evidence introduced at trial.
Defendant has not established that he is entitled to plain error relief on this ground.

                                (C) Intentionally misleading the jury

       Defendant contends that the State intentionally mentioned evidence in closing
argument that the trial court excluded; specifically, Defendant alleges that the State
commented on evidence relating to date rape drugs and evidence of the alleged sexual
assault on “Jane Doe.”19 Additionally, Defendant argues that the State improperly

        18
           The record reflects that defense counsel waited until the State completed its rebuttal argument
and then asked for a bench conference in the trial court’s chambers. Then, defense counsel alleged that
the State “argued that the alleged victim was blacked out from whatever was in her body at the time.”
Defense counsel asserted that this statement “violated this Court’s order not to infer in any way to the fact
or any allegations a date rape drug was used in this case.”
        19
           Defendant sought to introduce evidence that Co-defendants McKenzie, Banks, and Batey
sexually assaulted a minor victim the day before the immediate offenses occurred. No charges were
                                                   - 83 -
suggested that Defendant testified at trial and that the trial court admitted a statement
from Defendant acknowledging that E.L. was unconscious during the offenses.

      The State again responds that Defendant has waived plenary review of these
comments because he failed to lodge a contemporaneous objection during closing
arguments. The State argues that Defendant is not entitled to plain error review because
he has not established that the comments breached a clear and unequivocal rule of law
because the comments did not specifically reference a date rape drug. The State also
contends that the comments appropriately referenced evidence introduced at trial. Again,
we have emphasized the specific quotes that Defendant argues were improper with bold
font:

              The evidence, and I submit to you that everything that you have seen
       is that she was completely unconscious. Every person that testified said
       that she was unconscious. You heard it from [Co-defendant] McKenzie,
       who is one of the people charged in the case. You heard it from Mr.
       Prioleau. You heard it from Dillon van der Wal. You heard it from every
       single person. Even [Defendant] admits that.

              Again, Count One, Aggravated Rape, it’s the anal penetration with
       an object. [Defendant] is criminally responsible for [Co-defendant]
       Banks’[s] conduct. He directed him. First of all, he’s already provided
       with criminal responsibility because he is the one that got [E.L.] there for
       these strangers to do this to her. [Co-defendant] Banks, [Co-defendant]
       Batey, [Co-defendant] McKenzie, they would have never gotten to her.
       They weren’t with her. I guess they could’ve gone out and tried to seek
       her out. But I think it’s fair to say that that’s not something they
       would’ve done. It was [Defendant] that brought her unconscious. He
       provided the victim and then he provided the room. It was gotta [sic] get
       her up to my room.

      Additionally, Defendant contends the following quote from the State’s rebuttal
argument was improper:

              And then let’s attack the victim. Let’s attack her. You know. She
       gets up and does menial things like go to the restroom and get a drink.
       Doesn’t commit crimes. Do a lot of things. Things you might be able to

brought against any Co-defendant and the trial court excluded this evidence. The portion of the record
concerning the alleged minor victim was sealed by the trial court. We will discuss the exclusion of the
evidence later in this opinion in “(13) Exclusion of evidence of prior bad acts.” We will refer to the
alleged minor victim as “Jane Doe.”
                                                - 84 -
      do in a confused state from whatever was in her body at the time. She
      didn’t commit a crime. And he talks about her smiling when she walked
      out at noon, by the way. Several hours later. And she was looking at her
      phone. Just because she didn’t feel good, she felt horrible, doesn’t mean
      you can’t see something on your phone that might be funny.

             And he talked about the blue drink, whatever this was, this
      transcript today about Miss Martel trying to recall and said oh, yeah, I
      said that, but then right after it I said I’m not sure that’s what was
      said. And when I questioned her, she said yeah, she could’ve said that she
      bought me a drink, she could’ve said it was another drink, I don’t know, I
      really don’t know. Does that impeach [E.L.]? And did she say he was
      buying her drinks like they said? No. She said another woman was buying
      drinks and [Defendant] was bringing them to me. She didn’t say that.

       The record reflects that Defendant did not object to the quoted portion of the
State’s initial closing argument or the portion of the State’s rebuttal closing argument.
Therefore, Defendant is not entitled to plenary review of this issue. We conclude that
Defendant has not established that the State’s comments breached a clear and
unequivocal rule of law. See Adkisson, 899 S.W.2d at 641. The comments quoted above
were fair inferences based on the evidence introduced at trial. Regarding the blue drink,
Ms. Martel testified that, prior to leaving Tin Roof, she spoke with E.L. and noticed that
E.L. was holding “a blue drink[.]” E.L. testified that her fourth drink was “blue and in a
clear cup.” E.L. stated that Defendant gave her the drink, that she felt intoxicated after
drinking a sip or two of the blue drink, and that she could not remember if she finished
the blue drink. Neither Ms. Martel nor E.L. mentioned the presence of any date rape drug
while discussing the blue drink, and the State did not discuss the presence of a date rape
drug in the blue drink in its closing arguments.

       Regarding the State’s argument that Co-defendants Banks, Batey, and McKenzie
would not have gone and sought out E.L. and thus would not have been involved in the
offenses without Defendant’s involvement, we conclude that this comment was not a
reference to the alleged offenses involving “Jane Doe,” evidence of which the trial court
excluded from this trial. The State did not mention any specific facts about the “Jane
Doe” allegations in its closing argument. This portion of the State’s closing argument
was not misleading to the jury.

       Regarding Defendant’s admission of E.L.’s unconscious state, as previously
mentioned, the surveillance video from Gillette Hall depicts Defendant carrying E.L.’s
limp body into the building, onto the elevator, and onto the second floor. In the videos
that Detective Gish found, E.L. lies on the floor of the hallway and in Defendant’s dorm
                                          - 85 -
room without moving. Co-defendant McKenzie testified that E.L. was “passed out” and
did not make any sounds while she was in Defendant’s room. When Mr. Black
interviewed Defendant, Defendant stated that both he and E.L. were intoxicated and that
E.L. was not very coherent but had not passed out during the drive from E.L.’s apartment
to Gillette Hall. However, later in the interview, Defendant explained that he covered up
the security camera on the second floor of Gillette Hall because he “wasn’t thinking
clearly” and “there was a girl passed out in [his] room.” Thus, the State based its
argument on evidence introduced at trial.

       Additionally, we conclude that the State’s comments in its rebuttal closing
argument were a response to evidence discussed in Defendant’s closing argument. We
note that during defense closing argument, defense counsel twice referenced Ms. Martel’s
testimony that E.L. told her that a woman “gave her the blue drink” and also referred to
E.L.’s testimony that Defendant “gave her the blue drink.” Thus, the State did not
intentionally seek to mislead the jury during its closing arguments by mentioning E.L.’s
unconscious state or the blue drink. Defendant is not entitled to relief on this ground.

            (D) Improper vouching for Co-defendant McKenzie’s credibility

       Defendant argues that the State improperly vouched for Co-defendant McKenzie’s
credibility and bolstered his testimony in the following statement:

              Let’s talk about [Co-defendant] McKenzie. Here’s [Co-defendant]
      McKenzie. Young man eighteen years old. Been out drinking with his two
      buds, his roommate. Little buzzed, comes back, gets in the middle of this.
      He doesn’t deserve any medals, that’s for sure. He’s not going to get any.
      But what did he really do? We know he didn’t touch her. At least there’s
      no testimony, no video, no photographs of him touching her. We didn’t
      hear his voice encouraging anybody to do anything. And he admits he took
      pictures with [Co-defendant] Batey’s phone, not his own phone. He didn’t
      use his own phone to take pictures for his own gratification or whatever it
      was. He took pictures for [Co-defendant] Batey. And he left the room a
      couple of times to look at his phone, to go to the bathroom. He was a lot
      less interested than the others, I submit. But what he did was not right. He
      was there laughing. He was there photographing. And he lied to cover it
      up. But you do have to give him some credit that he finally came
      forward to tell the truth. Yeah. He gave a first statement. He told us I
      lied.

       Defendant lodged a contemporaneous objection to this portion of the State’s
closing argument.
                                         - 86 -
       The State asserts that “the challenged comment in this case did not suggest any
personal belief by the prosecutor.” The State further contends that, even if this comment
was error, the error was harmless due to the overwhelming evidence of Defendant’s guilt.

      In State v. Jason Allen Cobb, this court stated the following about improper
vouching by the State during closing argument:

              “Expressions by the prosecutor are a form of unsworn, unchecked
      testimony and tend to exploit the influence of the prosecutor’s office and
      undermine the objective detachment which should separate a lawyer from
      the cause for which he argues.” Goltz, 111 S.W.3d at 6-7 (citation
      omitted). During closing arguments, prosecutors must not interject their
      personal beliefs or opinions, however, whether a prosecutor’s doing so
      qualifies as misconduct is often dependent upon the specific terminology
      used. [State v.] Gann, 251 S.W.3d [446,] 460 [(Tenn. Crim. App. 2007)].
      “For example, argument predicated by the words “I think” or “I submit”
      does not necessarily indicate an expression of personal opinion.” Id.
      (citing United States v. Stulga, 584 F.2d 142, 147 (6th Cir. 1978)).

No. W2011-02437-CCA-R3-CD, 2013 WL 1223386, at *20 (Tenn. Crim. App. Mar. 26,
2013), perm. app. denied (Tenn. Oct. 16, 2013). In Jason Allen Cobb, the court
concluded that “the prosecutor did not insert his personal beliefs or vouch for the
credibility of the witnesses during closing argument” by “attempt[ing] to discredit the
defense witnesses and expose inconsistencies in their testimonies[.]” Id.

      In State v. Tavares Dewayne Buchanan, aka Tavarea Dewayne Buchanan, the
defendant objected to the following portion of the State’s closing argument:

              [T]he most important part of this case, other than the elements, . . . is
      whether or not you believe [the victim], because if you believe [the victim],
      you must return verdicts of guilty because everything she testified to
      satisfies the elements of this crime. At the end of the day this all comes
      down to whether or not you believe [the victim], and she gave you no
      reason not to believe her. She’s assumed to be telling the truth. She has no
      reason to lie. There’s no motive here for her to come in here after this long
      process and lie. This is not a fun experience to sit there with [your] face
      buried in [your] hands while fourteen strangers watch videos of you naked
      and crying and humiliated, that’s not fun. She has no reason to put herself
      through this.



                                           - 87 -
No. M2017-02268-CCA-R3-CD, 2019 WL 852192, at *6 (Tenn. Crim. App. Feb. 21,
2019), perm. app. denied (Tenn. Apr. 11, 2019). This court concluded that the
prosecutor’s comments were not improper vouching because “[t]he prosecutor did not
express a personal belief or opinion as to the truth of the victim’s statements or her
credibility.” Id. at *7. The court stated that, when “[v]iewed in context of the
surrounding argument, it is clear that the prosecutor was explaining why the jury should
accredit the victim’s testimony, not ‘vouching’ for the victim based on personal belief in
her testimony.” Id.

        At trial, Co-defendant McKenzie admitted that he lied to the Student Conduct
officials when he spoke with the MNPD on June 27, 2013. He also admitted that, at his
first meeting with the MNPD and the District Attorney’s Office, his statement contained
some truthful information and some false information. He further testified that he was
truthful in his interview with the District Attorney’s Office after he was charged for the
current offenses.

      The prosecutor argued: “But you do have to give him some credit that he finally
came forward to tell the truth.” The part of the State’s comment that Co-defendant
McKenzie “finally came forward to tell the truth” was based on Co-defendant
McKenzie’s testimony at trial. The portion of the comment “[b]ut you do have to give
him some credit” was not and improperly expressed the personal opinion of the
prosecutor.

       In order to prevail on a claim of prosecutorial error, “[t]he general test to be
applied is whether the improper conduct could have affected the verdict to the prejudice
of the defendant.” Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965); see also State
v. Richardson, 995 S.W.2d 119, 127 (Tenn. Crim. App. 1998). In determining whether
the improper conduct could have affected the verdict, one factor this court should
consider is the relative strength or weakness of the case. Judge v. State, 539 S.W.2d 340,
344 (Tenn. Crim. App. 1976). Accordingly, in light of overwhelming evidence in this
case, we conclude that any error in the prosecutor’s closing argument was harmless
beyond a reasonable doubt and Defendant is not entitled to relief.


                              (9) Sufficiency of the evidence

        Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and the weight of the
                                           - 88 -
evidence are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997). This court will not reweigh the evidence. Id. Our 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)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

    (A) Criminal responsibility for aggravated rape, attempted aggravated rape, and
                                aggravated sexual battery

        Defendant argues that the evidence was insufficient for a rational juror to have
found him guilty of aggravated rape and aggravated sexual battery under the theory of
criminal responsibility beyond a reasonable doubt because he did not have “the requisite
intent necessary for criminal responsibility.” Defendant notes that he did not know Co-
defendants Batey, Banks, or McKenzie prior to the offenses at issue; thus, the State did
not establish that Defendant had “presence and companionship” with his co-defendants.
He further contends that he “was highly intoxicated at the time of these offenses” such
that he could not form the requisite intent. The State responds that the evidence was
sufficient to support a finding that Defendant had the requisite mental state when the
sexual offenses were committed because Defendant “actively encouraged and assisted in
the offenses.”

       “A person is criminally responsible as a party to an offense, if the offense is
committed by the person’s own conduct, by the conduct of another for which the person
is criminally responsible, or by both.” Tenn. Code Ann. § 39-11-401(a) (2013). As
pertinent here, a person is criminally responsible for the conduct of another when,
“[a]cting with intent to promote or assist the commission of the offense, or to benefit
in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to
aid another person to commit the offense[.]” Tenn. Code Ann. § 39-11-402(2) (2013)
(emphasis added). Criminal responsibility is not a separate crime but instead a theory by
which the State may prove the defendant’s guilt based upon another person’s conduct.
State v. Osborne, 251 S.W.3d 1, 16 (Tenn. Crim. App. 2007) (citing State v. Mickens,
123 S.W.3d 355, 389-90 (Tenn. Crim. App. 2003)).

                                           - 89 -
       As discussed previously in this opinion, “under the theory of criminal
responsibility, presence and companionship with the perpetrator of a felony before and
after the commission of the crime are circumstances from which an individual’s
participation may be inferred.” Phillips, 76 S.W.3d at 9. In order to be convicted of the
crime, the evidence must establish that the defendant in some way knowingly and
voluntarily shared in the criminal intent of the crime and promoted its commission.
Maxey, 898 S.W.2d at 757; see also State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim.
App. 1988).

      Defendant contends that the State failed to establish the requisite mens rea to be
convicted of aggravated rape and aggravated sexual battery under a theory of criminal
responsibility. He does not, however, dispute that his co-defendants committed these
crimes. In fact, the State presented photographic, video, and testimonial evidence from
which a rational juror could find that Co-defendants Batey, Banks, and McKenzie
committed these crimes against the victim. Based on the foregoing analysis, and viewing
the evidence viewed in the light most favorable to the State, we conclude that the
evidence is sufficient to support a jury finding that Defendant acted “with intent to
promote or assist the commission of” aggravated rape and aggravated sexual battery.

                                   (1) Aggravated rape

       The Tennessee Code Annotated defines aggravated rape, as applicable here, as
“unlawful sexual penetration of a victim by the defendant or the defendant by a victim”
when “[t]he defendant is aided or abetted by one (1) or more other persons” and “[t]he
defendant knows or has reason to know that the victim is mentally defective, mentally
incapacitated or physically helpless.” Tenn. Code Ann. § 39-13-502(a)(3)(B) (2013).
“‘Physically helpless’ means that a person is unconscious, asleep or for any other reason
physically or verbally unable to communicate unwillingness to do an act[.]” Tenn. Code
Ann. § 39-13-501(5) (2013).           “‘Sexual penetration’” means sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part
of a person’s body or of any object into the genital or anal openings of the victim’s, the
defendant’s, or any other person’s body[.]” Tenn. Code Ann. § 39-13-501(7) (2013).

        In count one, the State elected to proceed under the allegation that Co-defendant
Banks penetrated E.L.’s anus with an object. At trial, Detective Gish testified that he
found photographs and video files depicting Co-defendant Banks penetrating the victim’s
anus with a bottle. In count two, the State elected to proceed under the allegation that
Co-defendant Batey digitally penetrated E.L.’s vagina; Detective Gish additionally found
thumbnail photographs of Co-defendant Batey digitally penetrating the victim’s vagina.
In count three, the State elected to proceed under the allegation that Co-defendant Batey
digitally penetrated E.L.’s anus. Detective Gish testified regarding the thumbnail
                                           - 90 -
photographs he retrieved that depicted Co-defendant Batey digitally penetrating the
victim’s anus. Further, Co-defendant McKenzie testified that he recalled each of the acts
alleged by the State in counts one, two, and three. Relevant to count four, in which the
State alleged that Co-defendant Batey forced E.L. to perform fellatio on him with her
mouth or lips, Co-defendant McKenzie testified that Co-defendant Batey inserted his
penis into the victim’s mouth. Because each of these acts constitutes sexual penetration
under the statute, a reasonable juror could infer from this evidence that Co-defendants
Banks and Batey sexually penetrated the victim. Each of these acts, therefore, satisfies
the first element of the offense for each count of aggravated rape.

      The second element requires that the commission was aided and abetted by one or
more other persons. Tenn. Code Ann. § 39-13-502(a)(3) (2013). Here, Defendant took
photographs and videos of Co-defendant Banks and Batey performing these acts, and
Defendant and the Co-defendants can be heard on the video evidence laughing and
encouraging each other in the commission of these acts. Thus, a rational juror could have
determined beyond a reasonable doubt that Co-defendant Banks and Batey were aided by
Defendant.

       Finally, the victim must have been “mentally deficient, mentally incapacitated or
physically helpless” for the crime to be aggravated. Tenn. Code Ann. § 39-13-
502(a)(3)(B) (2013). If the victim was unconscious during these acts, the statute
considers her physically helpless. See Tenn. Code Ann. § 39-13-501(5) (2013). The
State submitted copious evidence to support a finding that E.L. was unconscious during
the offenses. The victim herself testified that she did not remember anything that
occurred between taking a drink at the Tin Roof and waking up the next morning.
Surveillance footage from Gillette Hall depicted Defendant carrying the unconscious
victim from her vehicle into the dorm, onto the elevator, and then dropping her on the
floor of the second-floor hallway. Further, Co-defendant McKenzie observed that E.L.
was “passed out” when Defendant brought E.L. to Gillette Hall and that she did not make
any sounds while she was in Defendant’s dorm room. Captain Harville testified that
Defendant appeared to struggle to carry E.L. In each video retrieved, E.L. is lying still,
being carried, or being dragged. One video depicts E.L. mumbling incoherently on the
floor, although she is silent in the other videos. Co-defendant McKenzie also testified
that, when the group arrived at the dorm room, Co-defendant Batey slapped E.L five or
more times. She did not wake up. The only time E.L. is seen moving independently is
on surveillance footage from Gillette Hall beginning at 4:52 a.m., nearly two hours after
the offenses occurred. Based on this evidence, a reasonable juror could have inferred that
the victim was unconscious during the offenses, thereby satisfying the final element of
aggravated rape as charged in counts one through four.



                                          - 91 -
                             (2) Attempted aggravated rape

        We have previously concluded in this opinion that Defendant’s conviction for
aggravated rape in count five must be vacated because a jury previously acquitted
Defendant of this offense and Defendant cannot be placed under jeopardy twice for the
same offense. However, we concluded that the conviction should be modified to
attempted aggravated rape because the first jury found Defendant guilty of this lesser
included offense and the second jury found Defendant guilty of the greater offense of
aggravated rape. Thus, we will address whether the evidence was sufficient for a rational
juror to have found Defendant guilty of attempted aggravated rape in count five.

       We have previously set out the statutory definition of aggravated rape. “A person
commits criminal attempt who, acting with the kind of culpability otherwise required for
the offense” “[a]cts with intent to complete a course of action or cause a result that would
constitute the offense, under the circumstances surrounding the conduct as the person
believes them to be, and the conduct constitutes a substantial step toward the commission
of the offense.” Tenn. Code Annotated section 39-12-101(a)(3) (2013).

       In count five, the State elected to proceed under the theory that Co-defendant
Batey penetrated E.L.’s vagina with his penis. Here, Detective Gish recovered video files
that depicted Co-defendant Batey kneeling next to E.L.’s body with his pants and
underwear pulled down. Based on the files, a rational juror could have found beyond a
reasonable doubt that Co-defendant Batey attempted to penetrate E.L.’s vagina with his
penis. As we have previously noted, Defendant took photographs and videos of Co-
defendant Banks and Batey performing these acts, and Defendant and the co-defendants
can be heard on the video evidence laughing and encouraging each other in the
commission of these acts. Thus, a rational juror could have determined beyond a
reasonable doubt that Co-defendant Banks and Batey were aided by Defendant in count
five. Finally, we have previously concluded that the surveillance footage was sufficient
for a rational juror to have found that E.L. was unconscious during the offenses.
Defendant is not entitled to relief on this ground.

                             (3) Aggravated sexual battery

       “Aggravated sexual battery is unlawful sexual contact with a victim by the
defendant or the defendant by a victim” when “[t]he defendant is aided or abetted by one
(1) or more other persons” and “[t]he defendant knows or has reason to know that the
victim is mentally defective, mentally incapacitated or physically helpless[.]” Tenn.
Code Ann. § 39-13-504(a)(3)(B) (2013). Sexual contact is defined as “the intentional
touching of the victim’s, the defendant’s, or any other person’s intimate parts, or the
intentional touching of the clothing covering the immediate area of the victim’s, the
                                           - 92 -
defendant’s, or any other person’s intimate parts”; the statute requires that the intentional
touching “be reasonably construed as being for the purpose of sexual arousal or
gratification[.]” Tenn. Code Ann. § 39-13-501(6) (2013). “Intimate parts” includes “the
primary genital area, groin, inner thigh, buttock or breast of a human being[.]” Tenn.
Code Ann. § 39-13-501(2) (2013).

        As to the aggravated sexual battery convictions, the State submitted sufficient
evidence from which a rational juror could infer the criminal elements. The first element,
sexual contact, includes intentional touching of intimate parts for the purpose of sexual
gratification. Tenn. Code Ann. § 39-13-501(6) (2013). In count six of the indictment,
the State elected to proceed under the allegation that Co-defendant Banks touched E.L.’s
genitals. Detective Gish testified that several of the thumbnail photographs he recovered
depicted Co-defendant Banks spreading open the victim’s labia to take photographs of
her vagina. Detective Gish also testified that he recovered close-up photographs from
Co-defendant Banks’s phone of E.L.’s genitals and anus. In aggravated sexual battery
cases, the criminal actor need not actually become aroused for a jury to find that his
actions “can be reasonably construed as being for the purpose of sexual arousal or
gratification.” See Tenn. Code Ann. § 39-13-501(6) (2013); see also State v. Roy
Chisenhall, No. M2003-00956-CCA-R3-CD, 2004 WL 1217118, at *3 (Tenn. Crim.
App. June 3, 2004) (“The statute also does not require that the appellant become sexually
aroused or gratified by the sexual contact.”), no perm. app. filed. Further, the jury may
use their common knowledge to infer an actor’s intent. State v. Mahlon Johnson, No.
W2011-01786-CCA-R3-CD, 2013 WL 501779, at *10 (Tenn. Crim. App. Feb. 7, 2013),
perm. app. denied (Tenn. Aug. 14, 2013). In this case, Co-defendant Banks took a
condom from Defendant when they arrived at the dorm room. The photos on Co-
defendant Banks’s phone of E.L.’s genitals were later deleted, indicating that he had no
alternative intention for taking them other than for sexual gratification. Based on these
facts, a rational juror could rely on common knowledge to infer that Co-defendant
Banks’s conduct could “be reasonably construed as being for the purpose of sexual
arousal or gratification.” See Tenn. Code Ann. § 39-13-501(6) (2013).

        Relevant to count seven, the State alleged that Co-defendant Batey placed his
buttocks on E.L.’s face. Co-defendant McKenzie testified that Co-defendant Batey sat on
the victim’s face with his genitals exposed. Co-defendant McKenzie recalled that, prior
to sitting on E.L.’s face, Co-defendant Batey stated that “he had never had his a[**] ate
before,” which indicates that he intended to receive sexual gratification from the act. The
record therefore includes sufficient evidence to satisfy the first element of each count of
aggravated sexual battery.

        The second and third elements require that the defendant be aided and abetted by
at least one other person and that the victim be mentally defective, mentally incapacitated
                                           - 93 -
or physically helpless. Tenn. Code Ann. § 39-13-504(a)(3)(B) (2013). As we have
previously discussed, the State provided sufficient evidence to establish that Defendant
aided and abetted Co-defendants Banks and Batey in the commission of the offenses by
filming the offenses and by laughing and encouraging his co-defendants. Additionally, a
rational juror could have inferred from the evidence presented by the State that E.L. was
unconscious during the offenses based on the photographs and videos of her unmoving
body and witness testimony that she did not speak or move during the offenses. Thus, the
State’s evidence here supports that a rational juror could find each element of this crime.

                               (4) Criminal responsibility

       Defendant further contends that the State failed to establish criminal responsibility
because Defendant was too intoxicated during the commission of the crimes to form the
requisite specific intent. More specifically, Defendant argues that he did not have the
“conscious objective or desire to engage in the conduct[,]” see Tenn. Code Ann. § 39-11-
302(a) (2013), and that “proof of negligence or recklessness does not suffice to make a
person criminally liable.” The evidence supports that Defendant was intoxicated on the
night in question. Co-defendant McKenzie described Defendant as “kind of” drunk. Mr.
Quinzio told Detective Mayo that he had never seen Defendant as intoxicated as he was
that night, and he agreed on cross-examination that, because of this, Defendant could not
cognize “what was going on” or that his conduct “was wrong[.]” Co-defendant
McKenzie also testified that Defendant was not able to achieve an erection on the night
of the occurrences because “he had done to[o] much coke.”

        There is also sufficient evidence, however, that supports the jury’s finding that
Defendant was not too intoxicated to form the requisite intent. Co-defendant McKenzie
testified that Defendant was able to communicate and walk without assistance, despite his
intoxication. Mr. van der Wal corroborated this, observing that Defendant was
“intoxicated, but no more intoxicated than any other night.” Mr. van der Wal also stated
that he had conversed with Defendant, and that Defendant was walking and talking
without assistance. Moreover, Defendant was not too intoxicated to carry the victim to
his room, and he was cognizant enough to tell Mr. Quinzio and Mr. Finley to delete text
messages referring to rape. Because these accounts pose a question of fact, the jury was
charged with assessing the credibility of the claims and impliedly determined that
Defendant’s intoxication did not prevent him from forming the requisite intent. In
reviewing the evidence in the light most favorable to the State, we conclude that there is
sufficient evidence to support the jury’s finding.

        Under the theory of criminal responsibility, however, Defendant also must have
“solicit[ed], direct[ed], aid[ed], or attempt[ed] to aid another person to commit the
offense[.]” See Tenn. Code Ann. § 39-11-402(2) (2013). Here, Co-defendant McKenzie
                                           - 94 -
testified that Defendant brought E.L. to Gillette Hall and solicited Co-defendant
McKenzie, Banks, and Batey’s aid in carrying her upstairs. Co-defendant McKenzie
further testified that when they arrived at Defendant’s dorm room, Defendant passed
around a box of condoms and announced, “We have this b[***]h here,” and “We’re
going to f[**]k her.” Defendant also accessed pornography on his laptop during the
commission of the offenses in an attempt to achieve an erection and join his co-
defendants in the commission of the offenses.

       Viewing these facts in a light most favorable to the State, and without reweighing
the evidence, the evidence was sufficient for a rational juror to find beyond a reasonable
doubt that Defendant “[a]ct[ed] with intent to promote or assist the commission of the
offense” and “solicit[ed], direct[ed], aid[ed], or attempt[ed] to aid another person to
commit the offense[.]” See Tenn. Code Ann. § 39-11-402(2) (2013).

       Defendant further contends that, because he did not know his Co-defendants
before the night of the occurrences and because he did not have sex with the victim, he
did not participate in the crime and cannot be held criminally responsible for the actions
of his co-defendants. While Defendant informed MNPD officers that he did not know
Co-defendants Batey, Banks, or McKenzie prior to meeting them in front of Gillette Hall
on the night of the crimes, this fact alone does not eliminate the possibility that he shared
their intent to commit the crimes in question. The State presented evidence that
Defendant told Mr. Quinzio prior to the offenses that he would “make sure” that he had
sex that night. Despite Defendant’s assertion that he did not know his Co-defendants, he
made the initial contact with Co-defendants Banks, Batey, and McKenzie. Co-defendant
McKenzie testified that Defendant informed him outside Gillette Hall that “he had this
young lady in the car, and he needed [their] help to get her to his room.”

        Additionally, the video evidence presented by the State depicts Defendant actively
encouraging and participating in the offenses. Co-defendant McKenzie testified that
Defendant took a dominant role in the offenses and acted “amped,” “aggressive,” and
“bossy.” Co-defendant McKenzie also stated that when he, Defendant, and their Co-
defendants arrived at Defendant’s room with the victim, Defendant announced, “We have
this b[***]h here,” and “We’re going to f[**]k her.” Defendant then “grabbed condoms
out of the dresser drawer and passed the box around.” Co-defendant McKenzie also
identified Defendant as the videographer of some of the videos taken and testified that
Defendant slapped E.L. to assure him that she would not wake up. Defendant can be
heard laughing in the videos, commenting on what is happening, and encouraging his co-
defendants to continue. While a water bottle was penetrating the victim’s anus,
Defendant repeatedly told Co-defendant Batey to “squeeze that s[**]t.” He sent these
videos to friends and later asked Mr. Quinzio to send them back to him.

                                           - 95 -
        After the offenses, Defendant flushed condom wrappers down a toilet, asked Co-
defendants McKenzie and Banks to help him carry E.L. back to her vehicle, and placed a
towel on the hallway surveillance camera in an attempt to move E.L. without being seen.
The following day, Defendant met with Co-defendants McKenzie, Batey, and Banks and
discussed what had occurred the night before. Defendant agreed to invite the victim back
to his room, and later that day, he engaged in unprotected sex with the victim. Defendant
and Co-defendants McKenzie, Batey, and Banks later met to discuss what each of them
had told officials.

       The State need not show that the Defendant physically committed aggravated rape
and aggravated sexual battery against the victim to prove Defendant’s guilt of those
crimes under a criminal responsibility theory. See State v. Sherman, 266 S.W.3d 395
(Tenn. 2008) (“It is not . . . necessary for one to take a physical part in the crime;
encouragement of the principal is sufficient.”). As long as the evidence is sufficient to
establish that Defendant shared a criminal intent with the perpetrators and promoted the
commission of the offenses, Defendant can be convicted of the offenses. Taking the
above evidence in the light most favorable to the State, a rational juror could find beyond
a reasonable doubt that Defendant intended to participate in and promote the offenses
when he attempted to achieve an erection, filmed the criminal acts, provided condoms to
his Co-defendants, verbally encouraged his Co-defendants, and attempted to cover up the
offenses by flushing condom wrappers, covering the surveillance camera, and having
unprotected sex with E.L. Defendant is not entitled to relief on this ground.

                                (B) Unlawful photography

       Defendant argues that a rational juror could not have found him guilty of unlawful
photography beyond a reasonable doubt because E.L. “could not have had any reasonable
expectation of privacy in any of the locations where photographs were taken.” The State
responds that the evidence was sufficient for a rational juror to have found Defendant
guilty of unlawful photography because E.L. had “a reasonable expectation of privacy
regarding the photography of [her] intimate parts.”

       “It is an offense for a person to knowingly photograph, or cause to be
photographed an individual, when the individual has a reasonable expectation of privacy,
without the prior effective consent of the individual” if the photograph “[w]ould offend
or embarrass an ordinary person if such person appeared in the photograph” and the
photograph “[w]as taken for the purpose of sexual arousal or gratification of the
defendant.” Tenn. Code Ann. § 39-13-605(a)(1)-(2) (2013). Under this statute,
“‘photograph’ means any photograph or photographic reproduction, still or moving, or
any videotape.” Tenn. Code Ann. § 39-13-605(b) (2013). “‘Effective consent’ means
assent in fact, whether express or apparent,” and consent is not effective when “given by
                                          - 96 -
a person who, by reason of . . . intoxication[] is known by the defendant to be unable to
make reasonable decisions regarding the subject matter[.]” Tenn. Code Ann. § 39-11-
106 (2013). Further, “[i]f the defendant disseminates or permits the dissemination of the
photograph to any other person,” the offense is a Class E felony. Tenn. Code Ann. § 39-
13-605(d)(2) (2013). The jury convicted Defendant of a Class E felony in count eight,
unlawful photography.

       Detective Gish found evidence that Defendant’s phone had contained photographs
or videos related to the offenses, although they had been deleted after the offenses took
place. Examining a thumbnail database on Defendant’s phone, Detective Gish recovered
nine images depicting the victim on the night of the offenses. All of these images depict
the victim lying on the floor unconscious. Six images depict her with her skirt pulled up
and her underwear removed, and two of them depict her with her legs “spread apart.”
The images also depicted Co-defendant Batey in various positions next to the victim,
touching his genitals and digitally penetrating her. One of the images depicted the victim
lying on the floor with her skirt and top pulled up, exposing her lower body and her
breasts, and one image depicted a bottle penetrating the victim’s anus.

       A video recovered from Mr. Quinzio’s laptop computer depicted the victim lying
in the hallway of Gillette Hall with her skirt pulled up. This video had been recorded at
2:35 in the morning of the offenses, and the label corresponded to a file that had been
deleted from Defendant’s phone. Detective Gish noted that the angle of the video and the
timeframe matched Defendant’s actions seen on the surveillance video from Gillette Hall.
Another video on Mr. Quinzio’s laptop was recorded five minutes later in Defendant’s
dorm room and depicted Co-defendant Batey digitally penetrating E.L.’s anus while
Defendant laughed from behind the camera. This file also corresponded to a file that had
been deleted from Defendant’s phone. A third video sent to Mr. Quinzio from the same
time depicted Co-defendant Banks penetrating the victim’s anus with a plastic bottle. In
this video, Defendant pointed the camera downward, and his outfit, which is visible,
matched the outfit that he was wearing in the surveillance video. Based on these
photographs and videos, a rational juror could have found beyond a reasonable doubt that
Defendant had knowingly photographed E.L. without her prior effective consent due to
her intoxication and that the photographs would embarrass an ordinary person.

       Moreover, the jury may use their common knowledge to infer that Defendant took
these photographs for the purpose of his sexual arousal or gratification. Cf. Mahlon
Johnson, 2013 WL 501779, at *10 (explaining that a jury may draw upon their common
knowledge to infer that an accused forced intimate contact for the purpose of sexual
arousal or gratification). In this case, Defendant continued to photograph E.L. throughout
the commission of other sexual offenses, watched pornographic videos during the sexual
offenses, and attempted to achieve an erection. A rational juror, therefore, could find
                                          - 97 -
beyond a reasonable doubt that Defendant took photographs of her for the purpose of his
own sexual arousal or gratification.

       Defendant contends that the State provided insufficient evidence to convict him of
unlawful photography because the victim “could not have had a reasonable expectation of
privacy” in a co-ed dorm. The location where the photographs were taken, however, is
not dispositive. Instead, the statute simply prohibits nonconsensual photography of an
individual as long as that individual has “a reasonable expectation of privacy.” Tenn.
Code Ann. § 39-13-605(a) (2013). In each of these photos, E.L. is lying unconscious in
an unnatural state; her clothing had been removed or moved to reveal her naked body.
Some of the photos depict the co-defendants touching and penetrating E.L. with their
own body parts or other objects while she is unconscious. Based on the circumstances in
which these photos were taken and the subject matter depicted in the photos, a rational
juror could find that an individual has a reasonable expectation of privacy against
someone taking photographs of her naked body and genitals while she is unconscious.

       Finally, because the jury convicted Defendant of a Class E felony under count
eight, the jury must have found that Defendant disseminated or permitted the
dissemination of the photographs in question to another person. See Tenn. Code Ann. §
39-13-605(d)(2) (2013). In this case, Detective Gish recovered two videos of the
unconscious victim from Mr. Quinzio’s laptop which corresponded to files that had been
deleted from Defendant’s phone.20 This circumstantial evidence indicates that Defendant
had transferred the videos from his phone to Mr. Quinzio. Detective Gish also recovered
a text message exchange between Defendant and Mr. Quinzio from three days after the
offenses occurred, asking Mr. Quinzio to “[s]end” “[a]ll 3[.]” Mr. Quinzio responded by
sending Defendant the three video files that Defendant had taken during the offenses.
Thus, a rational juror could have reasonably found that Defendant not only disseminated
videos of E.L. to Mr. Quinzio but also permitted the dissemination of the videos. In sum,
the State presented sufficient evidence to satisfy the elements of Class E felony unlawful
photography and to uphold the jury’s conviction.

             (10) Constitutionality of Tennessee Code Annotated section 39-13-605

      Defendant contends that Tennessee Code Annotated section 39-13-605 is
unconstitutionally void for vagueness. He argues that the statute’s standard for
“reasonable expectation of privacy” is not sufficiently defined. The State responds that
Defendant waived plenary consideration of this issue by failing to “challenge the statute
        20
           Detective Gish found a third video on Mr. Quinzio’s laptop which had been filmed by
Defendant, but it is unclear from the facts whether Detective Gish cross-referenced the file labels to
determine that Defendant was the sender. The existence of this third video does not affect the outcome of
the analysis.
                                                 - 98 -
in the trial court, either during trial or in his motion for new trial.” Further, the State
argues that Defendant has not established that conviction under this statute was a breach
of a clear and unequivocal rule of law because “the contested statutory provision provides
fair notice and does not lend itself to arbitrary and discriminatory treatment.” The State
asserts that, “[w]hile the phrase ‘reasonable expectation of privacy’ was not defined in
the statute at the time of the offense, its meaning can be reasonably ascertained from the
context and the common understanding of those words.” Although Defendant did not
raise this issue in his motion for new trial, we will address this issue on the merits
because of the gravity of constitutional issues.

      “When reviewing the constitutionality of a statute, we begin “with the
presumption that an act of the General Assembly is constitutional” and “must indulge
every presumption and resolve every doubt in favor of constitutionality.” Riggs v.
Burson, 941 S.W.2d 44, 51 (Tenn. 1997).

                               (A) Unconstitutionally vague

        “The primary purpose of the vagueness doctrine is to ensure that our statutes
provide fair warning as to the nature of forbidden conduct so that individuals are not
‘held criminally responsible for conduct which [they] could not reasonably understand to
be proscribed.’” State v. Crank, 468 S.W.3d 15, 22-23 (Tenn. 2015) (alteration in
original) (quoting United States v. Hariss, 347 U.S. 612, 617 (1954)). Where there is
ambiguity in a statute, the rule of lenity requires the ambiguity to be resolved in favor of
a defendant. State v. Smith, 436 S.W.3d 751, 768 (Tenn. 2014). The rule of lenity is
“rooted in fundamental principles of due process which mandate that no individual be
forced to speculate, at peril of indictment, whether his or her conduct is prohibited.”
State v. Marshall, 319 S.W.3d 558, 563 (Tenn. 2010) (internal quotation marks omitted)
(quoting Dunn v. United States, 442 U.S. 100, 112 (1979)). A statute is ambiguous if the
language “is susceptible [to] more than one reasonable interpretation[.]” Memphis Hous.
Auth. v. Thompson, 38 S.W.3d 504, 512 (Tenn. 2001). Nonetheless, a vague or
ambiguous statute may still provide fair warning of the prohibited conduct and not render
the statute unconstitutionally vague. See Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 527
(Tenn. 2010). “The vagueness doctrine does not invalidate every statute which a
reviewing court believes could have been drafted with greater precision, especially in
light of the inherent vagueness of many English words.” State v. Lyons, 802 S.W.2d 590,
592 (Tenn. 1990). “It is only when the wording of a statute is ‘so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its
application,’ that the statute is unconstitutional.” Estrin v. Moss, 430 S.W.2d 345, 351-52
(Tenn. 1968) (quoting Connally v. General Construction Co., 269 U.S. 385 (1925)).



                                           - 99 -
       The United States Supreme Court has established a two-part test for vagueness
challenges. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
494 (1982). The court must first determine whether the statute in question implicates
constitutionally protected conduct. Id. If it does not, the court “should uphold the
challenge only if the enactment is impermissibly vague in all of its applications.” Id. at
494-95. “[V]agueness challenges to statutes which do not involve First Amendment
freedoms must be examined in the light of the facts of the case at hand.” United States v.
Mazurie, 419 U.S. 544, 550 (1975). Stricter standards of permissible statutory vagueness
may be applied to a statute if it has the potential to inhibit an individual’s First
Amendment rights. Village of Hoffman Estates, 455 U.S. at 499; Grayned v. City of
Rockford, 408 U.S. 104, 108-09 (1972); Baggett v. Bullitt, 377 U.S. 360, 372 (1964);
Cramp v. Board of Public Instruction, 368 U.S. 278, 287 (1961); Smith v. California, 361
U.S. 147, 151 (1959). Moreover, “[a] plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the vagueness of the law as applied to the conduct
of others.” Village of Hoffman Estates, 455 U.S. at 495.

                                    (B) Fair Warning

       The principles of vagueness and fair warning are interrelated. A “vague statute is
vulnerable to a constitutional challenge because it (1) fails to provide fair notice that
certain activities are unlawful; and (2) fails to establish reasonably clear guidelines for
law enforcement officials and courts, which, in turn, invites arbitrary and discriminatory
enforcement.” State v. Pickett, 211 S.W.3d 696, 702 (Tenn. 2007). In regards to the
former, “[d]ue process requires that a statute provide ‘fair warning’ and prohibits holding
an individual criminally liable for conduct that a person of common intelligence would
not have understood to be proscribed.” State v. Burkhart, 58 S.W.3d 694, 697 (Tenn.
2001) (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). To avoid
constitutional infirmity, a criminal statute must be “sufficiently precise to put an
individual on notice of prohibited activities.” Id. (quoting State v. Wilkins, 655 S.W.2d
914, 915 (Tenn. 1983)).

      The United States Supreme Court characterized the fair warning principle as
follows:

             The constitutional requirement of definiteness is violated by a
      criminal statute that fails to give a person of ordinary intelligence fair
      notice that his contemplated conduct is forbidden by the statute. The
      underlying principle is that no man shall be held criminally responsible for
      conduct which he could not reasonably understand to be proscribed.

Harriss, 347 U.S. at 617.
                                          - 100 -
                              (C) Plain language of section 39-13-605

       At the time of Defendant’s offense in 2013, “reasonable expectation of privacy”
was not defined in the unlawful photography statute or anywhere in Title 39 of the
Tennessee Code Annotated.21 Prior to Defendant’s offense, section 39-13-605 prohibited
photography of an individual “when the individual is in a place where there is a
reasonable expectation of privacy, without the prior effective consent of the individual.”
Tenn. Code Ann. § 39-13-605 (2010) (emphasis added). Tennessee courts concluded that
the statute’s meaning was clear: whether an individual has an expectation of privacy
depends on his or her location at the time of the photography, and an expectation of
privacy is not typically reasonable in public places. See, e.g., State v. Jesse B. Gilliland,
No. M2008-02767-CCA-R3-CD, 2010 WL 2432014, at *4 (Tenn. Crim. App. June 17,
2010) (finding that although the defendant photographed underneath a woman’s skirt
without her consent, the victim did not have a reasonable expectation of privacy because
she was in a public shopping mall), no perm. app. filed; State v. Richard Alexander
Herrera, No. W2010-00937-CCA-R3-CD, 2011 WL 4432895, at *3 (Tenn. Crim. App.
Sept. 23, 2011) (finding that a woman did not have a reasonable expectation of privacy in
a shopping aisle at Walmart), no perm. app. filed. In 2010, the statute was amended to
eliminate the reference to location. It prohibited photography of an individual without
their consent “when the individual has a reasonable expectation of privacy.” Tenn. Code
Ann. § 39-13-605 (2013). This language applied when Defendant committed the
offenses in the current case.

        The first part of the vagueness test requires this court to determine whether the
statute implicates constitutionally protected conduct. In Village of Hoffman Estates, the
Village enacted an ordinance which required a business to obtain a license if it sold any
items that are “designed or marketed for use with illegal cannabis or drugs.” Village of
Hoffman Estates, 455 U.S. at 491 (quoting Village of Hoffman Estates Ordinance No.
969-1978). A local store, The Flipside, Hoffman Estates, Inc. (Flipside), which sold a
variety of merchandise including smoking accessories, challenged the ordinance in the
district court as being unconstitutionally vague and overbroad. Id. On review, the
Supreme Court first examined whether the ordinance infringed upon Flipside’s First

       21
            In 2018, the statute was amended to include a definition of “reasonable expectation of privacy”:

               As used in this section, an individual has a reasonable expectation of privacy,
       regardless of the location where a photograph is taken, if: (A) the photograph is taken in a
       manner that would offend or embarrass a reasonable person; and (B) The photograph
       depicts areas of the individual’s body, clothed or unclothed, that would not be visible to
       ordinary observation but for the offensive or embarrassing manner of photography.

Tenn. Code Ann. § 39-13-605 (2018).
                                                  - 101 -
Amendment Rights. Id. at 496. The Court decided that it did not, because the ordinance
simply regulated business behavior. Id.

        Here, the statute in question prohibits the photography of un-consenting subjects
when they have a reasonable expectation of privacy and for the purpose of sexual
gratification of the defendant. Tenn. Code Ann. § 39-13-605 (2013). Although
Defendant did not argue this on appeal, photographs are generally protected as artistic
expression under the First Amendment. As the Supreme Court has repeatedly noted,
however, there are certain classes of expression which may be controlled by statute
without offending the values of the First Amendment. See Chaplinsky v. New
Hampshire, 315 U.S. 568, 571 (1942).

      These include the lewd and obscene, the profane, the libelous, and the
      insulting or ‘fighting’ words—those which by their very utterances are no
      essential part of any exposition of ideas, and are of such slight social value
      as a step to truth that any benefit may be derived from them is clearly
      outweighed by the social interest in order and morality.

Id. at 572. The Tennessee Court of Appeals held in Purifoy v. Mafa that repeated videos
and social media postings of the defendant’s therapist were “clearly meant to harass,
degrade, intimidate, threaten, and humiliate” the subject of the photographs and were
therefore not protected speech. 556 S.W.3d 170, 192 (Tenn. Ct. App. 2017). Similarly,
here, Defendant took photos and videos of the victim while she was unconscious, in a
state of undress, and being raped and sexually battered. These photos and videos are
analogous to the postings in Purifoy and the language in Chaplinsky in that they
degraded, harassed, threatened, and humiliated the victim, and any benefit that Defendant
may have derived from them is clearly outweighed by the “social interest in order and
morality.” Chaplinsky, 315 U.S. 568 at 571. Defendant’s photographs and videos of the
victim are therefore not constitutionally protected by the First Amendment.

       “A law that does not reach constitutionally protected conduct . . . may nevertheless
be challenged on its face as unduly vague, in violation of due process.”22 Village of
Hoffman Estates, 455 U.S. at 497. To succeed with this claim, Defendant must
demonstrate that the law is impermissibly vague in all of its applications. Id.; Burkhart,
58 S.W.3d at 699. Further, “[a] plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the conduct of
others.” Village of Hoffman Estates, 455 U.S. at 495; Burkhart, 58 S.W.3d at 699. This
court must therefore examine Defendant’s conduct before analyzing hypothetical
applications of the law. Burkhart, 58 S.W.3d at 699.

      22
           This is the basis for Defendant’s challenge.
                                                  - 102 -
       In Burkhart, the defendant was charged with possession of a gambling device in
violation of Tennessee Code Annotated section 39-17-505 (1989). Id. at 696. She
moved to dismiss the charges on the grounds that “gambling devices” as used in the
statute was unconstitutionally vague. Id. The Tennessee Supreme Court held that the
statute was not unconstitutionally vague as applied to Ms. Burkhart because she had
engaged in conduct that is clearly proscribed by the statute. Id. at 698. The Tennessee
Supreme Court explained that a slot machine, which Burkhart was charged with
possessing, is designed for use in gambling and normally intended for use in gambling.
Id. The Tennessee Supreme Court followed Boyce Motor Lines v. United States in
concluding that “it is not ‘unfair to require that one who deliberately goes perilously close
to an area of proscribed conduct shall take the risk that he may cross the line.’” Burkhart,
58 S.W.3d at 698 (quoting Boyce Motor Lines v. United States, 342 U.S. 337, 340
(1952)).

       Here, Defendant’s conduct in violation of Tennessee Code Annotated section 39-
13-605 includes the photography of an unconscious victim in a state of undress while
being raped and sexually battered. As the State correctly notes, “[t]here can be no doubt
that the defendant should have been aware that taking videos [and photos] of the victim
while undressed, passed out, and being sexually assaulted was prohibited by law. In
other words, a person of common intelligence would have reasonably understood that
such conduct was proscribed.”

        Like Ms. Burkhart, Defendant perilously approached the line of proscribed
conduct and eventually crossed it. See id. Regardless of whether “reasonable
expectation of privacy” is defined in the Tennessee Code, a person of “common
intelligence” would understand that a person who is unconscious, undressed, and being
sexually assaulted has a reasonable expectation of privacy not to be photographed during
the assault and rape. See Estrin, 430 S.W.2d at 351-52. Defendant’s photography of the
victim, therefore, was “clearly proscribed” by section 39-13-605 (2013). See Village of
Hoffman Estates, 455 U.S. at 495. Because the statute is not vague as applied to
Defendant, he cannot successfully challenge the statute as facially vague. See Burkhart,
58 S.W.3d at 699.

       Further, this court can look to other sources that define “reasonable expectation of
privacy,” namely, the Fourth Amendment of the United States Constitution and case law
interpreting it. “The touchstone of unreasonable search and seizure analysis is whether a
person has a constitutionally protected reasonable expectation of privacy.” State v.
Bowling, 867 S.W.2d 338, 341 (Tenn. Crim. App. 1993) (quoting California v. Ciraolo,
476 U.S. 207, 211 (1986)) (internal quotation marks omitted). The United States
Supreme Court in United States v. Katz developed a two-prong test for determining
whether an individual has a reasonable expectation of privacy, see 389 U.S. 347, 361
                                           - 103 -
(1967) (Harlan, J., concurring). Courts must first analyze whether the victim had
“exhibited an actual (subjective) expectation of privacy,” and second, “whether that
expectation be one that society is prepared to recognize as ‘reasonable.’” Id. The United
States Supreme Court and Tennessee courts have applied these two questions repeatedly
to Fourth Amendment issues. See Ciraolo, 476 U.S. at 211; Smith v. Maryland, 442 U.S.
735, 740 (1979); Bowling, 867 S.W.2d at 341; State v. Roode, 643 S.W.2d 651, 652-53
(Tenn. 1982). Tennessee later applied this approach while accounting for the totality of
the circumstances. See State v. Talley, 307 S.W.3d 723, 734 (Tenn. 2010) (deciding that
the defendant did not have a reasonable expectation of privacy from searches and
seizures in a common hallway of his condominium complex because “each of the
residents . . . had the right to permit entry without restrictions. Neither the [d]efendant
nor any other residents could unilaterally exclude others rightfully within the hallway.”).

        The Sixth Circuit has since applied the totality of the circumstances test from
Talley to privacy questions dealing with Tennessee’s unlawful photography statute. See
Savoy v. United States, 604 F.3d 929, 935 (6th Cir. 2010) (explaining that whether an
individual had a reasonable expectation of privacy is a fact-intensive, totality-of-the-
circumstances inquiry). In Savoy, the defendant appealed the denial of his motion to
retrieve videotapes seized by police officers. Id. at 932. His motion was denied in part
because the videos were deemed unlawful. Id. Defendant argued that they were not
unlawful because the subjects of the videos (patrons at his bar engaging in sexual acts)
did not have a reasonable expectation of privacy in his bar. Id. The Sixth Circuit
remanded the issue, instructing the lower court to examine the totality of the
circumstances surrounding the videos to determine if the subjects of the videos had a
reasonable expectation of privacy. Id. at 937. They elaborated that the relevant factors to
consider are (1) whether the premises were open to the public for business purposes at the
time of the photography; (2) whether the specific locations were hidden from public
view; (3) and whether any steps were taken in an attempt to maintain the privacy of the
activities that occurred in each video. Id. at 937-38.

        We conclude that section 39-13-605 is not unconstitutionally vague because the
statute is not vague as applied to Defendant and because the phrase “reasonable
expectation of privacy” has been defined in other areas of criminal case law. Defendant
is not entitled to relief on this ground.

                                 (11) Excessive sentence

       Defendant avers that his sentence of seventeen years in the Tennessee Department
of Correction is “not in compliance with the ‘purposes and principles’ of the sentencing
statutes[.]” He contends that the trial court erred in applying several enhancement factors
to his case. He also argues that the disparity between his sentence and the fifteen-year
                                          - 104 -
sentences that Co-defendants Banks and Batey received is contrary to the Sentencing Act.
The State responds that Defendant is not entitled to relief on this ground because “the
trial court considered the relevant factors and imposed a sentence consistent with the
purposes and principles of the Sentencing Act[.]”

       When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s logic
and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

        In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made on the defendant’s own behalf
about sentencing. See Tenn. Code Ann. § 40-35-210 (2016); State v. Taylor, 63 S.W.3d
400, 411 (Tenn. Crim. App. 2001). The trial court must also consider the potential or
lack of potential for rehabilitation or treatment of the defendant in determining the
sentence alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-103(5)
(2016).

        To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2016); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401 (2016), Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

             (1) The minimum sentence within the range of punishment is the
       sentence that should be imposed, because the general assembly set the
                                           - 105 -
       minimum length of sentence for each felony class to reflect the relative
       seriousness of each criminal offense in the felony classifications; and

              (2) The sentence length within the range should be adjusted, as
       appropriate, by the presence or absence of mitigating and enhancement
       factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c) (2016).

        Although the trial court should also consider enhancement and mitigating factors,
such factors are advisory only. See Tenn. Code Ann. § 40-35-114 (2016); see also Bise,
380 S.W.3d at 698 n. 33, 704; State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). We
note that “a trial court’s weighing of various mitigating and enhancement factors [is] left
to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the
trial court is free to select any sentence within the applicable range so long as the length
of the sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’”
Id. at 343. 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.” Bise, 380 S.W.3d at 706. “[Appellate courts are] bound by a
trial court’s decision as to the length of the sentence imposed so long as it is imposed in a
manner consistent with the purposes and principles set out in sections -102 and -103 of
the Sentencing Act.” Carter, 254 S.W.3d at 346.

        The trial court ordered Defendant to serve seventeen years each for counts one
through five, aggravated rape, a Class A felony. See Tenn. Code Ann. § 39-13-502(b)
(2013). A Range I sentence for a Class A felony is between fifteen to twenty years.
Tenn. Code Ann. § 40-35-112(a)(1) (2016). The trial court ordered Defendant to serve
nine years each for counts six and seven, aggravated sexual battery, a Class B felony.
See Tenn. Code Ann. § 39-13-504(b) (2013). A Range I sentence for a Class B felony is
between eight to twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (2016). Lastly, the
trial court ordered Defendant to serve two years for count eight, unlawful photography, a
Class E felony when the defendant “disseminates or permits the dissemination of the
photograph to any other person[.]” See Tenn. Code Ann. § 39-13-605(d)(2) (2013). A
Range I sentence for a Class E felony is between one to two years. Tenn. Code Ann. §
40-35-112(a)(5) (2016). Thus, the trial court ordered Defendant to serve within-range
sentences and the sentence was consistent with the purposes and principles of the
Sentencing Act. We, therefore, presume that the trial court’s decisions on sentence
length are reasonable, and we will not reverse absent an abuse of discretion. See Bise,
380 S.W.3d at 707.



                                           - 106 -
       Here, the trial court found that several enhancement factors applied: that “the
victim was particularly vulnerable because of her physical incapacity[,]” “the victim
suffered psychological injuries as a result of this incident[,]” Defendant abused a position
of private trust because he “formally or informally stood in a relationship to the victim
that promoted confidence, reliability and faith[,]” and that Defendant was a leader in the
commission of the offenses because “he [wa]s the one that could have stopped this
incident.” The trial court found that several mitigating factors applied to Defendant’s
convictions, namely that Defendant “did not have any prior criminal convictions[,]” that
Defendant had “a lot of family and community support,” and that Defendant appeared
remorseful. The trial court concluded that “the enhancement factors outweigh[ed] the
mitigating factors in this particular case.”

       Defendant argues that the trial court erred in finding that Defendant was a leader
in the commission of the offenses under section 40-35-114(2) because the trial court’s
finding “was not based on planning or actual commission of an offense[.]” Defendant
argues that there was insufficient proof that he took some leadership action during the
offenses, citing State v. Buckmeir, 902 S.W.2d 418 (Tenn. Crim. App. 1995), and State v.
Freeman, 943 S.W.2d 25, 31 (Tenn. Crim. App. 1996). The State contends that the trial
court properly found that this factor applied because during the commission of the
offenses, Defendant “brought the passed[-]out victim back to his dorm, invited fellow
teammates into his room, and then encouraged the sexual assaults of the victim by those
teammates.” The evidence introduced at trial supports the trial court’s consideration of
this enhancement factor. Defendant left Tin Roof with E.L. in a cab and they
unsuccessfully attempted to enter E.L.’s apartment. After Defendant was unable to carry
E.L. into Gillette Hall by himself, he enlisted Co-defendants Banks, Batey, and
McKenzie to help him carry E.L. onto the elevator, up to the second floor, and into his
dorm room. Based on the digital files that Detective Gish found, Defendant took
photographic and video recordings of the offenses. Additionally, Co-defendant
McKenzie stated that Defendant was “bossy” and “in control” during the offenses
because Defendant pushed Co-defendants McKenzie and Batey off the elevator, handed
out condoms, and covered the camera. Thus, the trial court properly exercised its
discretion by applying this enhancement factor.

       Further, Defendant contends that the trial court erred in finding that “the victim
suffered psychological injuries as a result of this incident” because the trial court did not
specifically find that E.L.’s psychological injuries were “particularly great[,]” as required
by section 40-35-114(6). The State responds that the trial court properly applied this
factor because E.L. “suffered serious and long-term psychological injury as a result of the
defendant’s actions and the resulting criminal proceedings.”



                                           - 107 -
       The Tennessee Supreme Court stated the following about this enhancement factor
in State v. Kissinger:

       Every rape or sexual battery offense is physically and mentally injurious to
       the victim. Undoubtedly, the legislature considered the traumatizing nature
       of the offenses when it placed them in the two highest felony
       classifications. Before a court can enhance the otherwise applicable
       sentence, however, the record must support a finding that the personal
       injur[i]es were particularly great.

922 S.W.2d 482, 487-77 (Tenn. 1996).

       This court has previously “construed the legislative intent in the term ‘personal
injuries’ as broad enough to include not only physical harm, but also severe emotional
injuries and psychological scarring.” State v. Williams, 920 SW 2d 247, 259 (Tenn.
Crim. App. 1995) (citing State v. Smith, 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994)).
Additionally, this court has previously affirmed the trial court’s application of this factor
“in rape cases in which the victims suffered depression, anxiety, and other emotional
problems in addition to their physical injuries.” Id. (citing Smith, 891 S.W.2d at 930); see
also State v. Richard Cole, III, No. W2002-02826-CCA-R3-CD, 2003 WL 22309491, at
*4 (Tenn. Crim. App. Oct. 8, 2003) (rape victim’s psychological injuries were great
because she received counseling, was absent from work, lived in fear of contracting a
sexually transmitted disease, and could not return to the scene of the offense), perm. app.
denied (Tenn. Mar. 8, 2004); and State v. Arnett, 49 S.W.3d 250, 261 (Tenn. 2001)
(concluding that there was specific evidence of the victim’s psychological injury from the
rape because the victim received extensive counseling and took anti-depressant
medication), overruled on other grounds by State v. Winfield, 23 S.W.3d 279, 283 n.5
(Tenn. 2000). In Williams, as a consequence of her rape, the victim “experienced periods
of depression[,]” “suffered from low self-esteem[,]” “was often unable to work[,]” and
“missed five weeks of college[.]” Williams, 920 S.W. 2d at 259. Additionally, “her
schoolwork suffered[] and her scholarships were jeopardized.” Id. at 259-60. The victim
sought counseling and noted that “[h]er ability to maintain personal relationships has
been impaired.” Id. This court affirmed the application of the “particularly great” injury
enhancement factor to the defendant’s sentence in Williams. Id.

       In E.L.’s initial victim impact statement, she stated that it was hard to describe
“[]the humiliation, the pain, [and] the isolation [of] being reduced to nothing but a piece
of flesh right before your eyes[.]” E.L. stated that the offenses had an ongoing impact on
her because she relives the trauma of the offenses and “experience[s] additional attacks”
each time she attends a court proceeding related to this case. She noted that “[w]hat
happened to [her] that night has been compounded by the live-streaming, tweeting, and
                                           - 108 -
international dissemination of every detail of how [she] was degraded and humiliated for
all posterity.” Additionally, Dr. Cook stated that even after undergoing therapy, E.L.
“reported persistent and recurrent distressing recollections of the images and sounds, a
sense of powerlessness and hopelessness, irritability, difficulty concentrating and
hypervigilance.” Dr. Cook diagnosed E.L. with PTSD and explained that reliving the
trauma of the offenses “continually disrupt[ed] her academic planning and her emotional
sense of wholeness.” Based on this evidence, we conclude that the trial court properly
found that E.L. sustained “particularly great” psychological injuries from Defendant’s
criminal conduct. See Tenn. Code Ann. § 40-35-114(6) (2016); see State v. Jonathan D.
Rosenbalm, No. E2002-00324-CCA-R3-CD, 2002 WL 31746708, at *9 (Tenn. Crim.
App. Dec. 9, 2002) (rape victim suffered particularly great psychological injury from the
offense because she “became suicidal after the offense, experienced a dramatic weight
loss, and performed poorly in school”), perm. app. denied (Tenn. May 27, 2003).

        Defendant also argues that the trial court erred in finding that he abused a position
of private trust under section 40-35-114(14) because there is “extensive precedent for not
applying this factor to adults in a social/dating relationship.” The State asserts that the
trial court properly applied this factor because Defendant and E.L. were dating at the time
of the offenses and, in E.L.’s statement admitted at sentencing, she explained that she
trusted Defendant.

        Tennessee Code Annotated section 40-35-114(14) states that a trial court may
enhance a defendant’s sentence if the trial court finds that the defendant “abused a
position of . . . private trust . . . in a manner that significantly facilitated the commission
or fulfillment of the offense[.]” Tenn. Code Ann. § 40-35-114(14) (2016). The
Tennessee Supreme Court previously concluded that “[t]he position of parent, step-
parent, babysitter, teacher, coach are but a few obvious examples” of positions of public
or private trust. Kissinger, 922 S.W.2d at 488. The Tennessee Supreme Court further
stated:

              The determination of the existence of a position of trust does not
       depend on the length or formality of the relationship, but upon the nature of
       the relationship. Thus, the court should look to see whether the offender
       formally or informally stood in a relationship to the victim that promoted
       confidence, reliability, or faith. If the evidence supports that finding, then
       the court must determine whether the position occupied was abused by the
       commission of the offense.

Id. Additionally, the Tennessee Supreme Court previously observed that “adult victims
are generally held to have reasonable judgment and, unlike minors, can generally
function reasonably independently.” State v. Gutierrez, 5. S.W.3d 641, 645 (Tenn.
                                           - 109 -
1999). Thus, “to use the mere sharing of a household or the existence of a relationship to
determine whether a position of private trust exists between competent adults can result
in an overly-broad application of the enhancement factor.” Id.

       In State v. Jackson, 946 SW 2d 329, 334-35 (Tenn. Crim. App. 1996), this court
affirmed the trial court’s application of this enhancement factor when “[t]he defendant
made up his mind to kill the victim and then took advantage of his intimate relationship
with her to gain the opportunity to attack while she was alone in his home and acutely
vulnerable.” Prior to the offenses, the defendant and victim in Jackson were in an
exclusive romantic relationship. Id. at 330. The defendant in Jackson attacked the victim
with a knife after they spent the night together at his home. Id. at 330-31.

        It is unclear from the evidence admitted at trial and at the sentencing hearing
whether Defendant and E.L. were in a romantic relationship prior to the offenses. Ms.
Miller, E.L.’s roommate, stated that she was not concerned that E.L. stayed at Tin Roof
with Defendant because “they had been hanging out for a while, so [E.L. and Ms. Miller]
trusted him.” Additionally, in her second victim impact statement, E.L. described
Defendant’s conduct as “orchestrating a sustained thirty-minute gang rape against [E.L.],
a defenseless woman who trusted him.” However, this evidence does not rise to the level
of an exclusive dating relationship or marriage. See id. at 330-31. Regardless, even if the
trial court improperly applied this enhancement factor, Defendant is not entitled to relief
on this ground because the application of enhancement or mitigating factors is advisory
only, the trial court properly applied other enhancement factors, and there is no evidence
that the trial court “wholly departed” from the Sentencing Act. See Carter, 254 S.W.3d
at 345; see also Bise, 380 S.W.3d at 706.

        Defendant additionally argues that the trial court erred in finding that “the victim
was particularly vulnerable because of her physical incapacity” under Tennessee Code
Annotated section 40-35-114(4) because the enhancement factor is subsumed into
Defendant’s convictions as an essential element of aggravated rape and aggravated sexual
battery. The State concedes that the trial court erred in applying this factor to
Defendant’s sentence because vulnerability is essentially an element of aggravated rape
and aggravated sexual battery as charged in this case. See Tenn. Code Ann. § 39-13-
502(a)(3)(B) (2013); § 39-13-504(a)(3)(B) (2013). We agree that the trial court
improperly applied this factor to Defendant’s sentences for his convictions of aggravated
rape and aggravated sexual battery. Again, Defendant is not entitled to relief on this
ground because the application of enhancement or mitigating factors is advisory only, the
trial court properly applied other enhancement factors, and there is no evidence that the
trial court “wholly departed” from the Sentencing Act. See Carter, 254 S.W.3d at 345;
see also Bise, 380 S.W.3d at 706.

                                          - 110 -
        Lastly, Defendant asserts that the disparity between his total effective sentence of
seventeen years and the fifteen-year sentences that Co-defendant Batey and Banks
received is contrary to the purposes and principles of the Sentencing Act. As noted
above, the trial court determined that the enhancement factors outweighed the mitigating
factors in Defendant’s case and ordered Defendant to serve mid-range sentences.
Additionally, the trial court ordered all the sentences to run concurrently for a total
effective sentence of seventeen years. Because the trial court ordered within-range
sentences and properly exercised its discretion to apply several enhancement factors, we
conclude that the trial court did not abuse its discretion by ordering Defendant to serve a
total effective sentence of seventeen years.

                             (12) Denial of motion to recuse

       Defendant contends that the trial court erred in denying his motion to recuse based
on the trial court’s ex parte communications with the State “regarding video streaming of
court proceedings for viewing by E.L. as well as sequestration of witnesses.”
Additionally, Defendant refers to “other occasions” of ex parte communications and cites
to a motion that Defendant filed on June 27, 2014, to vacate the trial court’s ex parte
order filed on June 24, 2014. Defendant also argues that the possible criminal
investigation of the trial court’s bailiff created an appearance of impropriety in the first
trial. To support this allegation, Defendant cites to a document appended to his primary
brief.

        Regarding Defendant’s first ground for recusal, the State asserts that it is waived
because Defendant did not include it in his motion for new trial. Regarding Defendant’s
second ground for recusal, the State responds that Defendant waived plenary review of
this issue by failing to raise the issue in his motion for new trial or motion to recuse.
Additionally, the State argues that Defendant is not entitled to plain error relief on either
ground. A review of Defendant’s motion for new trial and amendments reflects that
Defendant did not discuss recusal in his motion for new trial. Defendant, as the
appellant, has the burden of preparing an adequate record for this court’s review. See
Ballard, 855 S.W.2d at 560. “When the record is incomplete, or does not contain the
proceedings relevant to an issue, this [c]ourt is precluded from considering the issue.”
State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). Likewise, “this [c]ourt
must conclusively presume that the ruling of the trial court was correct in all particulars.”
Id. (citing State v. Jones, 623 S.W.2d 129, 131 (Tenn. Crim. App. 1981); State v. Baron,
659 S.W.2d 811, 815 (Tenn. Crim. App. 1983); State v. Taylor, 669 S.W.2d 694, 699
(Tenn. Crim. App. 1983)). Thus, Defendant has waived plenary review of this issue, and
we will review only for plain error.



                                           - 111 -
        A trial judge should recuse him or herself whenever the judge “has any doubt as to
his ability to preside impartially in a criminal case or whenever his impartiality can
reasonably be questioned.” Pannel v. State, 71 S.W.3d 720, 725 (Tenn. Crim. App.
2001) (citing State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995)). Additionally, recusal is
appropriate “when a person of ordinary prudence in the judge’s position would find a
reasonable basis for questioning the judge’s impartiality.” Alley v. State, 882 S.W.2d
810, 820 (Tenn. Crim. App. 1994). The judge generally need not recuse him or herself if
the bias or perceived bias is “based upon actual observance of witnesses and evidence
during trial.” Id. However, if the judge’s bias is “so pervasive that it is sufficient to deny
the litigant a fair trial, it need not be extrajudicial.” Id. Whether to grant a motion to
recuse rests within the discretion of the trial court, and this court will not reverse the trial
judge’s decision absent an abuse of discretion. Hines, 919 S.W.2d at 578. A trial court
abuses its discretion “only when the trial court has applied an incorrect legal standard, or
has reached a decision which is illogical or unreasonable and causes an injustice to the
party complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v.
State, 185 S.W.3d 319, 337 (Tenn. 2006)).

                                (A) Ex parte communications

        Tennessee Supreme Court Rule 2.9 states that “[a] judge shall not initiate, permit,
or consider ex parte communications, or consider other communications made to the
judge outside the presence of the parties or their lawyers, concerning a pending or
impending matter,” except “[w]hen circumstances require it, ex parte communication for
scheduling, administrative, or emergency purposes, which does not address substantive
matters, is permitted.” Tenn. Sup. Court Rule. 2.9(A)(1). This exception only applies
when “the judge reasonably believes that no party will gain procedural, substantive, or
tactical advantage as a result of the ex parte communication” and “the judge makes
provision promptly to notify all other parties of the substance of the ex parte
communication, and gives the parties an opportunity to respond.” Tenn. Sup. Court Rule.
2.9(A)(1)(a)-(b).

       On October 28, 2014, Defendant filed a motion for the trial court to recuse. The
motion asserted that, at a motion hearing on October 24, the trial court “disclosed having
‘often’ entertained ex parte communications in this matter.” A transcript of this hearing
was not included in the record on appeal. Defendant argued that the trial court failed to
follow the procedures on ex parte communications set out in Tennessee Supreme Court
Rule 10. Defendant attached an affidavit of one of his defense counsel to the motion; in
the affidavit, defense counsel asserted that the trial court electronically streamed
evidentiary hearings on October 8 and 9 to the District Attorney’s Office for E.L.’s
viewing. Defense counsel argued that the streaming of the hearing violated the rule of
sequestration, which was invoked by Defendant, as well as procedures for ex parte
                                            - 112 -
communication because Defendant had no knowledge of the streaming prior to October
14, 2014.

       On October 30, 2014, the trial court denied Defendant’s motion to recuse in a
written order. The trial court found that “the communication regarding video streaming
of court proceedings for the alleged victim viewing was an administrative decision from
which ‘no party would gain a procedural or tactical advantage.’” The trial court also
found that E.L., as the victim of the current offenses, “had a right to view the
proceedings.” The trial court concluded that it could “be fair and impartial and that a
reasonable person of ordinary prudence in the judge’s position knowing all the facts
known would find no impartiality.”

        We conclude that plain error relief is not appropriate here because the record does
not clearly establish what occurred in the trial court. See Adkisson, 899 S.W.2d at 641.
The technical record includes a minute entry from October 29, 2014, that reflects that the
trial court held a hearing on Defendant’s motion to recuse. Because a transcript from this
hearing was not included in the appellate record, it is unclear if the trial court heard
witness testimony or only entertained arguments from the parties. Further, the transcript
of the motion hearing on October 24, 2014, where the trial court allegedly “disclosed
having ‘often’ entertained ex parte communications in this matter[,]” was not included in
the record on appeal. Thus, Defendant is not entitled to plain error relief on this issue.

                                (B) The trial court’s bailiff

      On January 16, 2015, during Defendant’s first trial, the trial court held a
conference in chambers after the jury and the parties returned from lunch. The following
exchange occurred:

              [CO-DEFENDANT BATEY’S COUNSEL]: [The State] indicated to
      you that [District Attorney] Glenn Funk had received a phone call about
      [the trial court’s bailiff] being in a bar and talking about the case. And he
      said that, I believe, he -- or, I don’t recall if it was exactly him -- but there
      were two other calls. And he mentioned that he hadn’t decided if they were
      going to open an investigation or not.

             [THE STATE]: We said we hadn’t -- we weren’t going to. We
      didn’t -- thought it rose to any level of anything like that.

             [CO-DEFENDANT BATEY’S COUNSEL]: Okay.



                                          - 113 -
       [THE STATE]: We just thought the Court ought to have notice that
there were people talking about it.

        [CO-DEFENDANT BATEY’S COUNSEL]: Which was a
concerning comment to me. We’re in the middle of a trial and had
comments made about one of your staff, and how Your Honor would take
that and accept that moving forward; and, what, if any, impact that might
have on you. I received an e-mail from somebody, I don’t know even -- it’s
supposed to be a video taken of [the trial court’s bailiff] sitting at a table,
looks like at a bar. I was trying to pull up the video on my phone, but it is
just a picture, and --

        [DEFENSE COUNSEL]: Really, Judge, our concern -- we discussed
this at lunch -- our concern is: Does this have any impact on the jury; have
there been any influences from outside the jury room on the jury; and, do
we need to ask for a mistrial, based on it, is what we’re concerned about.

       The [TRIAL] COURT: None that I have heard anything about. I
spoke with [the trial court’s bailiff] about what I was told. She said that she
was at the hospital yesterday. She may have gone to a bar at some point,
but she was at the hospital because her father had surgery. He was in
surgery, virtually, all day yesterday.

       Now -- and I expressed to her, I said, “Whatever you do, do not say
anything about any jurors anywhere.” And she assured me that she would
not do such. But, I don’t -- I mean, how has it affected any jurors in any
way?

        [DEFENSE COUNSEL]: I don’t know. That’s what I am asking. I
mean, and I -- you know, somebody -- I mean, this is a setup. Who in the
world would go to a bar with a recorder and record fifteen minutes of [the
trial court’s bailiff] at a bar? Who would even have a motive to do that?
So, what is going on?

      I would like to hear more about what was communicated to [District
Attorney] Funk exactly, if [the State] knows.

      [THE STATE]: The only thing advised to me was that she was at a
bar and she was making inappropriate comments. It might have included
comments about jurors, or somebody on the jury, you know, or someone --
I don’t know what she observed. You know, obviously, she observes
                                    - 114 -
everything in court. So, it may have just been comments on what she
observed in open court.

       Like I said, as far as I know, we have no information that there was
any criminal misconduct, or anything like that. I think it was just her
drinking and, probably, talking about stuff she shouldn’t have been talking
about.

       THE [TRIAL] COURT: Right.

        [THE STATE]: That’s the only information -- like I said, we don’t
know of anything that would be criminal in nature, or anything of her trying
to influence the case. We just thought we ought to bring this to the Court’s
attention and make sure --

        The [TRIAL] COURT: Yes. You did the right thing. And that is
why I spoke with her. And if there is anything that comes out of it, I am
sure it would come back to me. And, then, I would put it on the record, and
we could go from there. But, I don’t know if there is any kind of impact at
all. You know --

....

       [CO-DEFENDANT BATEY’S COUNSEL]: Your Honor, I guess, I
was, also, curious: If the State was contacted and we were contacted, I
didn’t know if anybody tried to reach out to this office.

       THE [TRIAL] COURT: No. No one has.

....

      THE [TRIAL] COURT: Well, I can see if I can find out a little bit
more. That’s --

       [CO-DEFENDANT BATEY’S COUNSEL]: Well, I don’t know that
we need to. I guess, I just wanted to verify on the record that Your Honor
didn’t feel any influence from any of this, one way or the other, or if there
was, there is -- we don’t know of any issues with the jury.




                                   - 115 -
             THE [TRIAL] COURT: And, as I said before, I didn’t accuse her of
      anything. I told her what I was relayed; and, for her not to make any
      comments, whatsoever, about anything regarding this trial or the jury.

             [DEFENSE COUNSEL]: Well, I am just glad to get cleared, about
      the prosecutorial decisions, because I don’t want to try the rest of this case
      in a courtroom where there is an impending decision on whether there is
      going to be a criminal investigation into the Judge’s staff. That wouldn’t be
      appropriate, and it might impact impartiality. So, didn’t want to do that.
      So, I wanted to clear up on the record that there is no impending --

               THE [TRIAL] COURT: My impartiality?

             [DEFENSE COUNSEL]: I would be afraid of the appearance. I am
      not worried about your impartiality, per se. I know you very well. But, I
      didn’t want there to be some lingering, or languishing, decision as to
      whether there is going to be some impending investigation. It’s on the
      record there is not, so there we are. That is all I wanted to do.

               THE [TRIAL] COURT: All right.

             [THE STATE]: I would suggest, maybe, out of abundance of
      caution, that she -- based on all this, that something else could come out,
      that she, probably, not have any contact with the jury, if you could work
      that out with your staff. I don’t know what your staffing situation is.

               THE [TRIAL] COURT: Oh, we can switch that out.

             [THE STATE]: I think that would be just out of a concern, that she
      not have contact with the jury, based on this allegation.

               THE [TRIAL] COURT: Yeah, yeah. I think that’s the cautious thing
      to do.

       Here, we agree with the State that Defendant has failed to establish that the trial
court breached a clear and unequivocal rule of law by not recusing itself on this ground.
After the State clarified that there was no open investigation into the bailiff’s actions,
Defendant did not ask the trial court to recuse or for any other relief. In contrast, the
State suggested that the trial court employ a different bailiff in the courtroom for the
remainder of the trial, which the trial court agreed to do. The evidence presented by the
State during the in-chambers conference reflected that the bailiff “was making
                                         - 116 -
inappropriate comments”; these comments may “have included comments about jurors”
or “may have just been comments on what she observed in open court.” The State
clarified that it had “no information that there was any criminal misconduct[.]” It appears
from the record that neither defense counsel nor the State could play the recording that
they received, and this recording was not admitted into the record and thus was not
included in the record on appeal. Based on the lack of evidence surrounding the
circumstances of the bailiff’s comments, the State’s declining to investigate the bailiff’s
actions, and the trial court’s agreement to employ a different bailiff for the remainder of
Defendant’s trial, we conclude that “a person of ordinary prudence in the judge’s
position” would not find “a reasonable basis for questioning the judge’s impartiality.”
See Alley, 882 S.W.2d at 820. Defendant is not entitled to plain error relief on this
ground.

                        (13) Exclusion of evidence of prior bad acts

       Defendant argues that the trial court erred in excluding evidence that Co-
defendants McKenzie, Banks, and Batey allegedly sexually assaulted a minor victim,
“Jane Doe,” the day before the immediate offenses occurred. On appeal, Defendant
argues the evidence was admissible under Tennessee Rules of Evidence 403, 404(b),
608(b), and 616 because the evidence was relevant to both parties’ theories of the case.
More specifically, he argues that the evidence would have shown similarities between the
co-defendant’s actions towards E.L. and Jane Doe and would have “directly refuted the
State’s allegations that [Defendant] was a ‘ringleader.’” Additionally, Defendant argues
that the exclusion of this evidence violated his constitutional right to present a defense
and to confront witnesses.

       The State initially argues that Defendant waived review of this issue by failing to
include Co-defendant McKenzie’s proffer23 and the trial court’s ruling on its
admissibility in the appellate record. The State also contends that Defendant “failed to
establish that the evidence was relevant or that, even if relevant, the probative value
outweighed the prejudicial effect.” The State asserts that Defendant “failed to show that
anything improper, much less illegal occurred on the night prior to the offenses.”

       At a pretrial motion hearing on October 9, 2014, Defendant asked to access the
incident report regarding an alleged incident of rape on June 22, 2013, that involved Co-
defendants Batey, Banks, and McKenzie. Defendant expressed his desire to cross-
examine Co-defendants Batey, Banks, and McKenzie on whether they were testifying for
the State in exchange for the State’s agreement to not prosecute them. The State

       23
         We presume that the “proffer” refers to Co-defendant McKenzie’s interview with police on
September 19, 2013, based on the parties’ arguments.
                                            - 117 -
disclosed that the MNPD investigated the incident but “determined [that] there was
insufficient evidence to go forward”; thus, the State did not enter into an agreement not to
prosecute any of the co-defendants because no criminal charges were brought. The State
explained that the father of a seventeen-year-old female reported to the MNPD that the
minor female, Jane Doe, alleged that she had been raped by one or more of the co-
defendants in this case. MNPD officers attempted to interview Jane Doe but were
unsuccessful. MNPD eventually closed the case without submitting it to the State. The
trial court stated that it would review the incident report and determine if the report
contained any exculpatory information. On October 21, 2014, the trial court entered an
order granting Defendant, in pertinent part, discovery of “the police reports, victim’s
statements and witness statements resulting from any Vanderbilt, [VPD] or [MNPD]
investigation regarding an alleged sexual assault that took place on the Vanderbilt
campus and involved a minor and members of the Vanderbilt University football team.”
The trial court later entered an amended order that granted Defendant access to
“documents from the [MNPD] investigative file regarding an incident which occurred on
June 22, 2013, if after an in camera review, the Court determines any such information is
relevant.”

       Prior to the direct examination of Co-defendant McKenzie during a jury-out
hearing in Defendant’s first trial, the following exchange occurred:

              [DEFENSE COUNSEL]: Your Honor, additionally, yesterday there
       was some discussion about the rape the night before with [Co-defendant]
       McKenzie and [Co-defendant] Banks. What I would like to do, because it
       is significantly covered in the proffers, that I need to go into some of it,
       because it is a benefit, in my opinion, that [Co-defendant] McKenzie and
       [Co-defendant] Banks raped a girl previously.

              [THE STATE]: Your Honor please, I’m going to object to that in
       open record. [Co-defendant] Banks didn’t do anything. He’s misstating
       the facts. And this has been done in chambers where it ought to be.

              THE COURT: Right. We have dealt with this issue. That’s why we
       dealt with it.

       While the jury was still outside the courtroom, the State conducted a proffer of
Co-defendant McKenzie’s testimony about his conversation with Defendant in the
restroom of the second floor of Gillette Hall after the offenses at issue. Later, after the
jury entered the courtroom, the following exchange occurred during an in-chambers
hearing:

                                          - 118 -
       [DEFENSE COUNSEL]: Yes, Your Honor. I didn’t want to do it in
front of -- do it outside, again, so that’s why I asked to come back here.

       My understanding about [Co-defendant] McKenzie, about cross-
examination about the night before: He was asked questions about the night
before on a proffer. I am not going to get into the events of the night
before. But, he gave a statement in between two other statements -- which,
I would like to say, were you questioned about some criminal conduct the
night before. Additionally, in his last proffer that we received on July of
2014, [Co-defendant] McKenzie is asked the question: “Mr. Vandenburg
was not present the night before,” and he says “No.”

     Those are the two questions I would like to ask [Co-defendant]
McKenzie.

        [THE STATE]: Your Honor, please, there wasn’t criminal activity
the night before. This is double hearsay reported to the police. They
investigated. That proffer wasn’t a proffer in this case. It was an interview
with [Co-defendant] McKenzie about what happened the night before. All
it was[,] was acknowledgment that he and [Co-defendant] Batey had sex
with a seventeen-year old and he was eighteen years old. So, it’s not a
crime. You know, there is no criminal -- further criminal investigation
going on. He was not charged with a crime. It is just asking him, did he
have sex the night before. And there’s just [n]o basis for it, Your Honor
please.

      Plus it implicates [Co-defendant] Batey. If we put on [Co-
defendant] Batey, yeah, he had sex with a girl that was a year younger than
him the night before.

       It is totally irrelevant, Your Honor, please. There is no relevance to
it. Your Honor reviewed that file. Nothing has come of it. There wasn’t
any criminal activity uncovered.

        [DEFENSE COUNSEL]: Your Honor, didn’t read the proffer. The
proffer was numerous individuals, D.A.’s there, detectives there; and, the
girl’s father made a complaint of rape. And they said [Co-defendant]
McKenzie did it, and [Co-defendant] Banks did it.

       [THE STATE]: No, he did not.

                                   - 119 -
          [DEFENSE COUNSEL]: I’ll get the proffer then. You want me to
get it?

        [THE STATE]: Get the file. It says she ID’d [Co-defendant] Batey,
but it’s totally irrelevant.

       [DEFENSE COUNSEL]: And I don’t want to bring that up, Your
Honor. All’s I want to do is bring up the fact that [Co-defendant]
McKenzie was interviewed on, I think, it was September 19th, 2013, on the
night before. Because in his proffer, the one that they’re going to use
today, they asked him that question was [Defendant] present on the night
before.

       THE [TRIAL] COURT: Yeah. But how is that relevant to what
happened on the 23rd? And, you know, you’re talking about prior bad acts,
or alleged prior bad acts, which is something --

      [DEFENSE COUNSEL]: Well, here’s where it comes in. I’m sorry,
Your Honor.

          THE [TRIAL] COURT: Go ahead.

       [DEFENSE COUNSEL]: Because the Government has solicited
some text messages from [Defendant] saying “I’m going to” -- it was from
the night before about, “I am going to f[**]k,” or “I’m going to do”
something like that. I don’t know the exact language. And this was from
the night before. They brought in some conduct from the night before.

          [THE STATE]: It was the same day, I think.

       [DEFENSE COUNSEL]: It is completely irrelevant. But, they have
created that scenario that [Defendant] was on a hunt from the night before.
And this is relevant to that.

       [THE STATE]: [Defense counsel], just to clarify: It was from the
night of. It was from several hours . . . before this happened. It wasn’t the
night before. It was Saturday night. That is when he made that statement,
right before he went out.

     [THE STATE]: Totally different issues. Totally different issue,
Your Honor, goes to the motive and intent[.] This other case -- there
                                    - 120 -
      wasn’t a case. There’s no criminal conduct. It doesn’t come in under any
      rule for impeachment purposes, whatsoever.

             THE [TRIAL] COURT: I don’t see how it comes in either. It is a
      separate event. It’s not a part of this particular trial. [Defendant] wasn’t
      involved in it. I don’t see how it could come in.

      ....

           [DEFENSE COUNSEL]: Your Honor, but I can ask [Co-defendant
      McKenzie] if he was interviewed on that day; correct?

             THE [TRIAL] COURT: On what date?

             [DEFENSE COUNSEL]: On the date of 9/19/2013.

             THE [TRIAL] COURT: Yeah. I mean, if he was interviewed he was
      interviewed.

             [DEFENSE COUNSEL]: Okay, okay.

             [THE STATE]: And not what it was about, or anything else.

             THE [TRIAL] COURT: Right.

             [THE STATE]: Not “a criminal investigation.” Just that he was
      interviewed by the police on that particular day. It was a totally different
      deal. It was a totally -- as far as I’m concerned --

             [DEFENSE COUNSEL]: We’ll see if you open the door. If you
      open the door, we’ll walk in it.

             THE [TRIAL] COURT: Okay. Let’s go.

       At a motion hearing on April 29, 2016, the State informed the trial court that
Defendant had issued a subpoena duces tecum for the police report on the incident
involving Jane Doe. The trial court again ruled that the evidence was “not relevant to this
case.” However, the trial court permitted Defendant to file a motion or brief regarding
the issue. On May 6, 2016, Defendant filed a “Motion to Allow Prior Bad Acts and
Conduct of [Co-defendants McKenzie, Banks, and Batey.]” Defendant argued that,
under Tennessee Rule of Evidence 608(b), he could cross-examine Co-defendants
                                          - 121 -
McKenzie, Banks, and Batey on a prior instance of conduct “to call into question their
credibility.” The specific instance of conduct at issue was the alleged rape of Jane Doe
by Co-defendants McKenzie, Banks, and Batey on the day prior to the instant offenses.
The Motion also cited to Tennessee Rule of Evidence 616 to support Defendant’s request
to cross-examine Co-defendants McKenzie, Banks, and Batey about this prior incident
because the co-defendants initially stated that Defendant was not involved in the offenses
against E.L., but they later changed their statements to implicate him. Defendant asserted
that he wanted to cross-examine Co-defendants McKenzie, Banks, and Batey about “their
character for truthfulness and credibility” by discussing their alleged prior bad acts.

        At an in camera conference on May 13, 2016, the trial court found that, regarding
the alleged incident of rape, Jane Doe “was not able to provide any information regarding
it.” The trial court stated that “without any substantive information regarding it, it’s hard
to see how [the trial court] could allow so-called prior bad acts when there’s really no
proved prior bad acts.” The trial court concluded that Defendant could cross-examine
Co-defendant McKenzie at trial on whether he had received any consideration from the
State in exchange for his testimony. On May 18, 2016, the trial court denied Defendant’s
Rule 608(b) motion in an order which stated that the trial court “previously ruled that
prior bad acts of the co-defendants were not admissible.”24

      Generally, “questions concerning the admissibility of evidence rest within the
sound discretion of the trial court, and this [c]ourt will not interfere in the absence of
abuse appearing on the face of the record.” State v. Plyant, 263 S.W.3d 854, 870 (Tenn.
2008). 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.’” Id. (citing Ruiz, 204 S.W.3d at 778 ).




        24
            On June 3, 2016, Defendant filed a motion asking the trial court to reconsider its order of May
18 that denied Defendant’s Rule 608(b) motion. The appellate record does not contain the trial court’s
order ruling on this motion to reconsider, if such order was entered. On May 31, 2016, Defendant filed an
application for permission to appeal to this court under Tennessee Rule of Appellate Procedure 10,
arguing in part that the trial court erred in prohibiting Defendant from cross-examining the co-defendants
about prior bad acts. On June 1, 2016, this court denied Defendant’s application for permission to appeal
under Tennessee Rule of Appellate Procedure 10. This court noted that Defendant’s application failed to
follow the requirements of Rule 10. This court also noted that Defendant filed his application on May 31,
2016, one week before jury selection for trial was scheduled to begin. In any event, this court considered
Defendant’s application and concluded that Defendant had “not satisfied the ‘narrowly circumscribed’
requirements for an extraordinary appeal.” This court determined that “[t]he trial court’s order reflects
that the trial court followed the accepted and usual course of judicial proceedings prior to ruling on the
four motions at issue.”
                                                 - 122 -
                                      (A) Relevance

       Under the Tennessee Rules of Evidence, evidence is relevant 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. Tennessee Rule of Evidence 403 states that relevant evidence “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 State argues that evidence relating to Jane Doe’s allegations of rape was not
relevant to Defendant’s trial strategy because the police report does not establish that any
Vanderbilt student had sex with Jane Doe, that Jane Doe was raped, or that Jane Doe was
unconscious while on Vanderbilt’s campus. In his brief, Defendant quotes portions of
interviews of Co-defendant McKenzie and Co-defendant Banks with MNPD and the
State. However, Defendant’s brief cites to his “Motion to Allow Prior Bad Acts and
Conduct of [Co-defendants McKenzie, Banks, and Batey,]” which merely includes
quotes from these interviews. Because these interviews were not admitted at trial and are
not in the record on appeal, we cannot consider this evidence. See Tenn. R. App. 24(g)
(“Nothing in this rule shall be construed as empowering the parties or any court to add to
or subtract from the record except insofar as may be necessary to convey a fair, accurate
and complete account of what transpired in the trial court with respect to those issues that
are the bases of appeal.”); see also State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim.
App. 1988) (“the recitation of facts contained in a brief, or a similar pleading, [is] not
evidence”).

       During Defendant’s first trial, the trial court found that Jane Doe’s allegations
pertained to “a separate event” and that “[Defendant] wasn’t involved in it.”
Additionally, the trial court found that Jane Doe “was not able to provide any information
regarding” the alleged incident of rape. We conclude that the trial court did not abuse its
discretion by excluding the police report and other evidence related to Jane Doe’s
allegations on the grounds that the evidence was not relevant to Defendant’s case. The
police report and other related documents in the appellate record do not mention that
Defendant was involved in Jane Doe’s allegations. Further, the MNPD closed the case
prior to submitting it to the State because Jane Doe would not give a statement to the
MNPD to explain what happened to her on Vanderbilt’s campus on the evening of June
22, 2013. Thus, evidence relating to Jane Doe’s allegations of rape is not relevant to any
issues that were raised at Defendant’s trial. Because we have concluded that evidence
relating to Jane Doe’s allegations is not relevant to Defendant’s case, we decline to
address Defendant’s arguments that the evidence is admissible under Tennessee Rules of
                                          - 123 -
Evidence 404(b), 608(b), or 616. See Tenn. R. Evid. 402 (“Evidence which is not
relevant is not admissible.”).

                              (B) Right to present a defense

        As noted above, Defendant also argues that the trial court’s exclusion of evidence
pertaining to Jane Doe’s allegations violated his right to present a defense. We have
previously set out in this opinion the case law that pertains to a defendant’s right to
present a defense. In determining whether a defendant’s right to present a defense has
been violated by the exclusion of evidence, courts should consider whether “(1) the
excluded evidence is critical to the defense; (2) the evidence bears sufficient indicia of
reliability; and (3) the interest supporting exclusion of the evidence is substantially
important.” Brown, 29 S.W.3d at 433-34 (citing Chambers, 410 U.S. at 298-301). Here,
the evidence in the appellate record that pertained to Jane Doe’s allegations, namely the
police report, did not establish that any of the co-defendants had sex with Jane Doe, that
Jane Doe was raped while on Vanderbilt’s campus, or that Jane Doe was unconscious
while on Vanderbilt’s campus. Because we have previously concluded that the evidence
was not relevant to the issues raised at Defendant’s trial, we must also conclude that the
evidence was not critical to Defendant’s theory of the case. Therefore, Defendant’s right
to present a defense was not violated by the trial court’s exclusion of evidence pertaining
to Jane Doe’s allegations.

                      (14) Denial of Defendant’s Rule 412 motion

       On September 15, 2014, Defendant filed a motion under Tennessee Rule of
Evidence 412, arguing that the trial court should admit evidence of E.L’s sexual behavior
with Defendant to explain the source of DNA found at the crime scene and to establish
E.L’s pattern of behavior and sexual consent. Specifically, Defendant alleged, in
pertinent part:

        Defendant met E.L. while he visited Vanderbilt University on a recruiting trip;
         Defendant and E.L. both attended a party where E.L. hugged and kissed
         Defendant and grabbed his penis.
        On June 15, 2013, Defendant’s twentieth birthday, E.L. initiated sex with
         Defendant in his dorm room. After E.L. and Defendant had sex, Mr. Boyd
         entered Defendant’s dorm room and E.L. invited Mr. Boyd to have sex with
         her while Defendant was still in the bed.
        On June 22, 2013, E.L. texted Defendant around 1 a.m. and invited Defendant
         to come to her apartment to have sex with her.
        After E.L. arrived at Tin Roof and met up with Defendant, she initiated sexual
         contact with him in a photo booth. Later, E.L. danced in a sexual manner
                                         - 124 -
          between Defendant and another football player. She told Defendant that she
          wanted to have sex with him and that she wanted him to take photographs of
          her so she could remember the evening.
         During the cab ride from Tin Roof to E.L.’s apartment, E.L. inserted
          Defendant’s fingers into her vagina.
         E.L. engaged in consensual sex with Defendant on the evening of June 23.
         On June 24, 2013, E.L. posted the following statement on her Twitter account:
          “‘So have you girls ever been in a hot tub with three brothas before?’
          Lollllll[.]”
         Analysis of the underwear that E.L. wore during the offenses showed the
          presence of DNA from two unidentified males.

        On October 8, 2014, the trial court held a hearing on Defendant’s Rule 412
motion. Regarding his previous sexual contact with E.L., Defendant testified that E.L.
twice asked Defendant to take nude photographs of her—once during sex on June 15 and
again on the evening of June 21. Defendant testified that around 1:00 a.m. on June 22,
2013, E.L. texted Defendant to ask him to come over to her apartment. After Defendant
arrived at E.L.’s apartment, they had consensual sex, during which E.L. told Defendant
that “she liked having nude photos of herself taken” and that “she liked having nude
photos of guys that she’s been with.” E.L. did not ask Defendant to take photos of her at
that time. However, Defendant stated that he and E.L. planned to take nude photographs
of each other to celebrate his birthday.

       While at Tin Roof on the evening of June 22, 2013, Defendant and E.L. discussed
having sexual intercourse later that night. Defendant stated that E.L. handed him a drink
and said, “You need to relax and get ready for tonight.” Defendant interpreted her
statement as meaning that she wanted him to return with her to her apartment to have sex.
He stated that E.L. later confirmed this interpretation because she said, “I can’t wait to
f[**]k you tonight. Your body is so sexy.” Defendant stated that E.L. grabbed his
buttocks and genital area, kissed him, and danced in a sexual manner with him and
another football player. Defendant stated that, shortly after dancing, E.L. indicated to
him that she wanted to return to her apartment and have sex with him. E.L. told
Defendant that she could not wait to have sex with him. Defendant and E.L. left Tin
Roof around 1:55 a.m. on June 23. In the cab on the way to E.L.’s apartment, she placed
Defendant’s hand on her genital area and again stated that she could not wait to have sex
with him. The cab driver dropped Defendant and E.L. off in front of her apartment at the
Village at Vanderbilt. While E.L. and Defendant walked up to her apartment, she again
grabbed his buttocks and genital area, kissed his ear, and whispered to him that she
wanted to have sex all night long.


                                         - 125 -
       During cross-examination, Defendant testified that E.L. last told him that she
wanted to have sex with him while they were driving from her apartment building to
Gillette Hall. He explained that he told Mr. Black that he did not take any photographs or
videos of E.L. on the morning of June 23 because he was intoxicated during the offenses
and did not recall taking videos and photographs. Defendant asserted that E.L. consented
to having sex with him less than thirty minutes before the offenses occurred.

        E.L. testified that she did not remember the total number of alcoholic beverages
that she consumed on the evening of June 22, 2013. She also did not recall riding in a
cab with Defendant from Tin Roof to her apartment that evening. E.L. stated that she
never gave consent to Defendant to take nude photographs of her or to disseminate nude
photographs of her. E.L. recalled sending a tweet to Ms. Miller on June 24, 2013, that
contained the quote “‘So have you girls ever been in a hot tub with three brothas before?’
Lollllll[.]” E.L. explained that on June 24, she was hanging out with Ms. Miller at
Madison Jenson’s apartment complex. The three women were in the hot tub at the
complex, and three strangers approached the women and asked, “So, have you girls ever
been in a hot tub with three brothers before?” E.L. and her friends thought that the
question was strange, so she tweeted the question to make fun of it. E.L. did not recall
having sex with anyone on June 22, and she did not have sex with anyone between the
time she left Defendant’s dorm room around 8:00 a.m. on June 23 and when she changed
her clothes later that day.25

       The DNA report prepared by the TBI that was admitted at the hearing showed that
the TBI tested two pairs of underwear from E.L. Examination of one pair “confirmed the
presence of a limited amount of spermatozoa.” The pairs of underwear were additionally
submitted to DNA testing by Cellmark Forensics, whose report concluded that “[t]he Y-
STR profile obtained from the underwear [non-sperm fraction] DNA extract [wa]s a
mixture of at least two males including a major unknown male donor.” Defendant, his
co-defendants, Mr. Woods, Mr. van der Wal, Mr. Retta, Mr. Boyd, and Mr. Prioleau were
excluded as major contributors to this DNA extract. Cellmark also tested “[t]he partial
Y-STR profile obtained from the underwear [sperm fraction] DNA extract” and found
that the DNA was “a mixture consistent with originating from two males.” Cellmark
excluded Mr. Woods, Mr. van der Wal, Defendant, and Co-defendant Batey as
contributors but was unable to make any determinations regarding whether Co-defendant
Banks or McKenzie were contributors.

        25
           At the hearing, the trial court ruled that E.L. could be asked whether she consented to having
photographs taken of her person on the night of the offenses, about her level of consciousness during the
offenses, specifically if she was conscious when she was depicted on surveillance video getting into a
vehicle with Defendant outside of her apartment complex, about the “hot tub” tweet, whether the
underwear the State collected was the underwear that E.L. was wearing during the offenses, and whether
E.L. had sexual contact with other individuals after she left Defendant’s dorm room.
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       On October 14, 2014, the trial court denied Defendant’s Rule 412 motion. In its
written order, the trial court concluded that Defendant “did not present any specific
evidence that related to the victim’s consent, therefore[,] any other evidence related to the
victim’s consensual sexual history is immaterial and protected by Rule 412.”
Additionally, the trial court determined that Defendant did not present sufficient evidence
to establish that E.L. had a distinctive pattern of behavior “to satisfy an exception to Rule
412.” The trial court stated that, “[s]ince none of the exceptions apply, the Court need
not make a determination of whether the probative value of the evidence outweighs the
unfair prejudice to the victim.” Lastly, the trial court found that, while Defendant argued
that the exclusion of evidence of E.L.’s prior sexual behavior violated his constitutional
right to present a defense, “no credible evidence was presented to support [his]
contention.”

       Prior to May 2016, the State filed a motion to redact Defendant’s statement by
omitting references to specific instances of sexual activity between Defendant and E.L.
Defendant filed a response to this motion and argued that redaction of his statement
would violate his due process rights to confront the witnesses against him and to present
a defense. Additionally, Defendant argued that specific instances of E.L’s sexual
behavior were admissible under Rule 412 to rebut the State’s theory of prosecution. On
May 18, 2016, the trial court granted the State’s motion to redact Defendant’s statement
by omitting references to E.L.’s previous sexual activity.

                           (A) Tennessee Rule of Evidence 412

       Tennessee Rule of Evidence 412 states that “in a criminal trial[] . . . in which a
person is accused of” aggravated rape and aggravated sexual battery, “[e]vidence of
specific instances of a victim’s sexual behavior is inadmissible unless admitted in
accordance with the procedures in subdivision (d) of this rule” and “[i]f the sexual
behavior was with the accused,” the evidence pertains to “the issue of consent[.]” Tenn.
R. Evid. 412(c)(3). Additionally, “[i]f the sexual behavior was with persons other than
the accused,” evidence of specific instances of the victim’s sexual behavior is admissible
“to rebut or explain scientific or medical evidence,” “to prove or explain the source of
semen, injury, disease, or knowledge of sexual matters,” or “to prove consent if the
evidence is of a pattern of sexual behavior so distinctive and so closely resembling the
accused’s version of the alleged encounter with the victim that it tends to prove that the
victim consented to the act charged or behaved in such a manner as to lead the defendant
reasonably to believe that the victim consented.” Tenn. R. Evid. 412(c)(4)(i)-(iii). Rule
412 defines “sexual behavior” as “sexual activity of the alleged victim other than the
sexual act at issue in the case.” Tenn. R. Evid. 412(a). “This broad definition deals with
sexual intercourse as well as every other variety of sexual expression.” State v. Wyrick,

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62 S.W.3d 751, 770-771 (Tenn. Crim. App. 2001) (quoting State v. Sheline, 955 S.W.2d
42, 47 n.6 (Tenn. 1997)) (internal quotation marks omitted).

        Regarding Rule 412(c)(4), the Tennessee Supreme Court has stated that “it is clear
that a ‘pattern’ of sexual conduct requires more than one act of sexual conduct.” Sheline,
955 S.W.2d at 46 (citing Cohen, Paine and Sheppeard, Tennessee Law of Evidence, §
412.4 at 236). The Sheline court also noted that “[t]he plain language of the rule speaks
of ‘specific instances’ of sexual conduct with ‘persons’ other than the defendant” and
cited approvingly to other jurisdictions that had concluded that a “pattern” of sexual
behavior “denotes repetitive or multiple acts and not just an isolated occurrence.” Id.
(citing State v. Ginyard, 468 S.E.2d 525 (N.C. Ct. App. 1996); State v. Woodfork, 454
N.W.2d 332 (S.D. 1990); Kaplan v. State, 451 So.2d 1386, 1387 (Fla. Dist. Ct. App.
1984); State v. Patnaude, 438 A.2d 402 (Vt. 1981); State v. Jones, 617 P.2d 1214 (Haw.
1980); Parks v. State, 249 S.E.2d 672 (Ga. Ct. App. 1978)). “Rule 412 is a rule of
relevance and is written as a rule of exclusion.” Brown, 29 S.W.3d at 430. Admissibility
of evidence under Rule 412 is a decision that is left to the discretion of the trial court.
Sheline, 955 S.W.2d at 46.

        Defendant asserts that his defense at trial was largely based on his argument that
he had a continuing sexual relationship with E.L. that began when he first visited
Vanderbilt’s campus and continued after he arrived as a student. Defendant argues that
introducing proof of his sexual relationship with E.L. and her sexual behavior towards
him as a part of that relationship would have established the fact that E.L. gave
Defendant consent to have sex with him on the night of the offenses. The State responds
that Defendant “failed to establish how his alleged prior sexual encounters with [E.L.]
were relevant to show that she consented to what occurred in Gillette Hall.” We agree
with the trial court’s conclusion that Defendant “did not present any specific evidence
that related to the victim’s consent” that would be admissible under Rule 412(c)(3). E.L.
testified that she did not give consent to Defendant to have sex with her or take nude
photographs of her on the night of the offenses. Even if E.L. did consent to having sex
with Defendant prior to the offenses, that consent cannot be expanded to apply when E.L.
was unconscious during the offenses and Defendant’s theory at trial was that he never
had sex with E.L. during the offenses. Defendant testified at the hearing that he did not
have sexual contact with E.L. and made similar statements to police. Further, Defendant
presented no evidence that E.L. consented while she was conscious to have Defendant
take nude photographs of her while she was unconscious. The trial court properly acted
within its discretion to deny admission of E.L.’s alleged previous sexual behavior with
Defendant to establish that she consented to Defendant’s actions under Rule 412(c)(3).

      Additionally, Defendant asserts that the evidence of semen in E.L.’s underwear
from two unidentified males should have been admitted under Rule 412(c)(4)(iii) because
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it was “indicative of the possibility that E.L. had engaged in group sex before” and was
“evidence . . . ‘of a pattern of sexual behavior so closely resembling the accused’s version
of the alleged encounter with the victim that it tends to prove that the victim consented to
the act charged or behaved in such a manner as to lead the defendant reasonably to
believe that the victim consented.’” The State responds that “[n]othing about [E.L.’s]
past behavior, even if true, would suggest that she consented or appeared to consent to
having sex with multiple men, whom she did not know, while she was passed out on a
dorm room floor.” We agree with the trial court that Defendant did not present sufficient
evidence to establish that E.L. had a distinctive pattern of behavior to satisfy Rule
412(c)(4). Defendant did not present any evidence at the hearing that E.L. had engaged
in group sex prior to the offenses at issue. Because Defendant failed to establish the
existence of any prior instances in which E.L. engaged in group sex, the DNA evidence
in E.L.’s underwear could not be admitted as evidence that E.L. consented to sexual
intercourse with the co-defendants on June 23. See Sheline, 955 S.W.2d at 46
(concluding that the defendant must offer evidence of multiple instances of sexual
conduct to establish a pattern).

                               (B) Right to present a defense

        Finally, Defendant contends that the exclusion of evidence of E.L.’s prior sexual
behavior deprived him of his constitutional right to present a defense. The State responds
that Defendant’s right to present a defense was not violated by the exclusion of this
evidence because “the evidence bears little indicia of reliability and the interest
supporting its exclusion is substantially important.” The State also argues that “[b]ecause
. . . [D]efendant did not claim that the victim consented to the acts, the evidence was not
critical to his defense[.]” In his reply brief, Defendant asserts that E.L.’s statements to
Defendant are “analogous to admissions by a party-opponent and would possess inherent
reliability.”

       In some situations, admission of evidence of a victim’s prior sexual behavior may
be “[r]equired by the Tennessee or United States Constitution[.]” Tenn. R. Evid.
412(c)(1).

              Although [t]he right to present witnesses is of critical importance . . .
       it is not absolute. In appropriate cases, the right must yield to other
       legitimate interests in the criminal trial process. Specifically, [i]n the
       exercise of this right, the accused, as is required of the State, must comply
       with established rules of procedure and evidence designed to assure both
       fairness and reliability in the ascertainment of guilt and innocence.
       However, these procedural and evidentiary rules of exclusion may not be
       applied mechanistically to defeat the ends of justice. Such rules do not
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       abridge an accused’s right to present a defense so long as they are not
       arbitrary or disproportionate to the purposes they are designed to serve.

Brown, 29 S.W.3d at 432-33 (internal citations and quotation marks omitted) (alterations
in original). “In determining whether a defendant’s right to present a defense has been
violated by the exclusion of evidence, courts should consider whether “(1) the excluded
evidence is critical to the defense; (2) the evidence bears sufficient indicia of reliability;
and (3) the interest supporting exclusion of the evidence is substantially important.” Id.
at 433-34 (citing Chambers, 410 U.S. at 298-301).

        We conclude that the trial court’s exclusion of evidence of E.L.’s prior sexual
behavior did not violate Defendant’s right to present a defense. The evidence proffered
by Defendant, that E.L. consented to having sexual intercourse with Defendant prior to
the offenses and DNA evidence from two unknown males found on E.L.’s underwear,
was not critical to Defendant’s defense. As stated earlier in this opinion, Defendant was
charged for aggravated rape under a theory of criminal responsibility and not for his
direct actions. Defendant stated numerous times to police and Vanderbilt officials that he
did not have sexual contact with E.L. on the night of the offenses. As stated in his
appellate briefs, Defendant’s main goal at trial was to rebut the State’s theory that he was
the “ringleader” or organizer of the offenses by asserting that he and E.L. had an ongoing
sexual relationship. Because the State charged Defendant under a theory of criminal
responsibility for the offenses, Defendant’s assertion that E.L. consented to have sexual
intercourse with him shortly before the offenses occurred was not critical to his defense
because it would not have rebutted any essential element of the crime of aggravated rape
as charged. Similarly, DNA evidence of two unidentified males on E.L.’s underwear
would not have exculpated Defendant from being criminally responsible for aggravated
rape. Further, Defendant’s testimony that E.L. said she wanted to have sex with him
would not have exculpated him for his actions of taking explicit photographs of E.L.
while she lay unconscious on the floor and of encouraging his co-defendants to rape and
sexually batter her. For these reasons, these pieces of evidence were not critical to
Defendant’s defense at trial.

        Second, Defendant’s hearsay assertion that E.L. consented to have sex with him
shortly before the offenses occurred does not bear “sufficient indicia of reliability[.]” See
id. at 433-34. Although Defendant asserts that E.L.’s comments consenting to have sex
with Defendant should be treated as party-opponent statements, see Tennessee Rule of
Evidence 803 (1.2), we decline to expand this exception to the hearsay rule to encompass
victims of sexual offenses. See State v. Flood, 219 S.W.3d 307, 314 (Tenn. 2007) (“[A]
victim in a criminal case does not meet the definition of a ‘party.’”); see also State v.
Howard, 504 S.W.3d 260, 277 n.6 (Tenn. 2016). Moreover, because Defendant’s
testimony that E.L. verbally consented to having sex with him multiple times throughout
                                           - 130 -
the evening of June 22 and early morning of June 23 is self-serving, this testimony is
unreliable hearsay that does not fall under any exception. See Dotson, 254 S.W.3d at
394. Consequently, we conclude that the exclusion of E.L.’s comments and DNA from
two unidentified males did not violate Defendant’s right to present a defense.

                                  (15) Cumulative error

       Lastly, Defendant argues that the cumulative effect of the errors he previously
alleged “collectively resulted in the trial below being fundamentally unfair to him and a
violation of due process.”

        The cumulative error doctrine recognizes that there may be many errors
committed in trial proceedings, each of which constitutes mere harmless error in
isolation, but “have a cumulative effect on the proceedings so great as to require reversal
in order to preserve a defendant’s right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76
(Tenn. 2010). To warrant review under the cumulative error doctrine, there must have
been more than one actual error during the trial proceedings. Id. at 77.

        We have previously discussed in this opinion how the trial court incorrectly
applied two enhancement factors to Defendant’s sentence. However, because the
application of enhancement factors is advisory only, see Carter, 254 S.W.3d at 345, and
we have otherwise affirmed the trial court’s sentencing determinations; Defendant is not
entitled to cumulative error relief.

                                     III. Conclusion

       After a thorough review of the facts and applicable case law, we affirm the trial
court’s judgments in counts one through four and six through eight. We vacate
Defendant’s conviction of aggravated rape in count five, modify the conviction to
attempted aggravated rape, and remand to the trial court for sentencing.


                                             ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




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