                                                                                         03/02/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 13, 2016

         STATE OF TENNESSEE v. ALLAN WAYNE BRADBERRY

                Appeal from the Circuit Court for Humphreys County
                  Nos. 12912, 12855 Suzanne Lockert-Mash, Judge
                      ___________________________________

                           No. M2016-00501-CCA-R3-CD
                       ___________________________________


The defendant, Allan Wayne Bradberry, was convicted of twenty-five counts of
especially aggravated sexual exploitation of a minor, Tenn. Code Ann. § 39-17-1005,
three counts of statutory rape by an authority figure, Tenn. Code Ann. § 39-13-532, one
count of sexual exploitation of a minor, Tenn. Code Ann. § 39-17-1003, one count of
rape, Tenn. Code Ann. § 39-13-503, and three counts of incest, Tenn. Code Ann. § 39-
15-302. On appeal, the defendant argues the trial court failed to require the State to elect
the offenses upon which it sought to convict the defendant. The defendant also argues
the trial court’s imposition of partial consecutive sentencing resulted in an excessive,
eighty-four-year sentence. Following our review, we affirm the judgments of the trial
court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR. and
CAMILLE R. MCMULLEN, JJ., joined.

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Allan Wayne Bradberry.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant
Attorney General; Ray Crouch, District Attorney General; and Joseph Hornick and
Jennifer Stribling, Assistant District Attorney Generals, for the appellee, State of
Tennessee.

                                        OPINION

                                         FACTS
       In July 2013, the defendant committed numerous sexual crimes against his
daughter, the minor victim. At trial, the State pursued twenty-five counts of especially
aggravated sexual exploitation of a minor, three counts of statutory rape by an authority
figure, three counts of incest, one count of sexual exploitation of a minor, and one count
of rape against the defendant.

        The evidence produced at trial revealed the sexual relationship between the
defendant and the victim began during a custodial visit in July 2013. At the time, the
victim was thirteen years old and the defendant lived in a trailer located in Humphreys
County. The victim testified that during the July visits, she began having sex with the
defendant, her father. Additionally, the defendant took sexually explicit pictures and
videos of her with his cell phone which he later downloaded onto his computer. The
victim identified twenty-four images and two videos depicting her engaged in sexual
activity either alone or with the defendant in his trailer. In reviewing each image, the
victim identified specific items that were familiar to her. These identifiers included her
fingernail polish, a pink tank top, a blue tank top, a pair of her underwear, a scar and
birthmark on her body, the defendant’s pillows and bedsheets which were “beige with,
like, green striping and diamonds on it,” and the defendant’s genitals.

       The victim also testified about a specific instance where the defendant forced her
into having anal intercourse during a July 2013 visit. She explained the defendant pushed
her against a wall in his trailer and penetrated her. Further, the victim explained, “I
screamed at him for him to stop, and he didn’t there for probably 30 seconds.”

       The victim disclosed her sexual relationship with the defendant to a friend, which
ultimately led to a criminal investigation by Captain Clay Anderson of the Humphreys
County Sheriff’s Department. During the investigation, Captain Anderson learned that
photographic evidence of the sexual allegations against the defendant might exist and,
based on this information, obtained a search warrant for the defendant’s trailer. The
search of the trailer uncovered two laptop computers, a tower computer, four cell phones,
nine DVDs, and a webcam.

       Subsequent to the search, Detective Scott Levasseur, an expert in computer
forensics, performed a forensic exam of the defendant’s computers. The forensic exam
revealed that one of the defendant’s laptops contained twenty-four sexual images and two
videos of the victim which were taken from an LG cell phone in July 2013 and
downloaded to the defendant’s computer in August 2013. Detective Levasseur explained
the LG cell phone that captured the images “would give the file name as a date stamp . . .
and then a sequential number.” Each image and video was also embedded with either



                                          -2-
metadata or EXIF data1 which further identified the date and time that each image was
taken and the device that captured the image. Relying on either EXIF or metadata,
Detective Levasseur identified twenty-four sexually explicit images and two videos of the
victim that were taken at different times on July 1, 2, 3, 7, 26, and 29, 2013.

        During the investigation the defendant signed a sworn statement in which he
admitted to having sex with the victim and to taking pictures of her. However, in his
statement, the defendant claimed all of the sexual activity was initiated by his daughter,
the thirteen-year-old victim.

       At the close of the State’s proof, the defendant made a motion to require the State
to elect the offenses charged against him. The trial court denied the motion and the
defense proceeded with its proof, including the testimony of the defendant. The
defendant denied all of the allegations against him and claimed the victim was lying.
Specifically, the defendant denied having sexual relations with the victim. He also
denied taking photographs of the victim and stated he did not know how the images got
on his computer. The defendant denied reading and signing the sworn statement, though
he admitted to giving a statement.

       Despite the defendant’s testimony, the jury convicted the defendant of twenty-five
counts of especially aggravated sexual exploitation of a minor and one count of rape,
Class B felonies, three counts of statutory rape by an authority figure and three counts of
incest, Class C felonies, and one count of sexual exploitation of a minor, a Class D
felony. The trial court sentenced the defendant as a Range I standard offender to twelve
years for each Class B felony conviction, six years for each Class C felony conviction,
and four years for the Class D felony conviction. The trial court grouped the convictions
for especially aggravated sexual exploitation of a minor by date and imposed concurrent
sentences within each group. The trial court then ran the sentences for each group of
especially aggravated sexual exploitation of a minor convictions consecutively to one
another. The trial court imposed partial consecutive sentencing to the remaining
convictions which resulted in an effective eighty-four-year sentence to be served in
confinement.

                                        ANALYSIS

       On appeal, the defendant argues the trial court erred in failing to require the State
to elect which offense it was prosecuting under each count of the indictment. The
defendant argues because several offenses were alleged to have occurred on the same

       1
        EXIF stands for Exchangeable Image File, a format that is used for storing interchange
information in digital photography image files.
                                            -3-
date, “there remains a potential for a non-unanimous verdict as to the acts occurring on
one date.” The defendant also argues the trial court’s imposition of partial consecutive
sentencing resulted in an eighty-four-year sentence that was “greater than deserved.” The
State contends it properly elected the offenses charged against the defendant and that no
error exists as to the trial court’s imposition of consecutive sentencing. After our review,
we affirm the judgments of the trial court.

        In Tennessee, a defendant is entitled to a unanimous jury verdict. State v. Brown,
992 S.W.2d 389, 391 (Tenn. 1999) (citing State v. Shelton, 851 S.W.2d 134, 137 (Tenn.
1993); Tidwell v. State, 922 S.W.2d 497, 501 (Tenn. 1996)). Therefore, “when the
evidence indicates the defendant has committed multiple offenses against a victim, the
prosecution must elect the particular offense as charged in the indictment for which the
conviction is sought.” Brown, 992 S.W.2d at 391 (citations omitted). “Although the
defendant may demand that the state elect between factual occurrences in an indictment,
the state is not required to elect between separate charges in the same indictment.” State
v. Porter, No. 02C01-9610-CC-00364, 1997 WL 630000, at *2 (Tenn. Crim. App. Oct.
14, 1997) (citing State v. Henley, 774 S.W.2d 908, 916 (Tenn. 1989); see also Raybin,
Criminal Practice and Procedure, § 26.82 (1985)). Rather, only where evidence of
unindicted offenses is introduced at trial is it the trial court’s duty “to require the State, at
the close of its proof-in-chief, to elect the particular offense . . . upon which it would rely
for conviction, and to properly instruct the jury so that the verdict of every juror would be
united on the one offense.” Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973). The
election requirement ensures that “jurors deliberate over and render a verdict based on the
same offense.” Brown, 992 S.W.2d at 391.

       Here, the record indicates there was no requirement for the State to make an
election despite the defendant’s motion at the close of the State’s proof requesting the
State do so. The record indicates the victim testified she had sex with the defendant
throughout July 2013 and that the defendant forced her to have anal intercourse with him
in July 2013. She identified twenty-four images and two videos showing her engaged in
sexual activity either alone or with the defendant in his trailer. The victim identified each
image by testifying to unique details seen in the images, such as her fingernail polish, her
clothing, a scar and birthmark on her body, the defendant’s green and beige bedsheets,
and the defendant’s genitals. Though the victim was unable to articulate the exact dates
the images and videos were taken, the State provided evidence from Detective Levasseur
who identified the missing information. Detective Levasseur provided the date, time, and
the device that captured each image upon which the jury relied in convicting the
defendant.

        In its closing argument, for each offense, the State specifically identified the count
in the indictment it was pursuing, the image it relied on for the conviction, the testimony
                                              -4-
of the victim identifying the image, and the expert testimony of Detective Levasseur
pinpointing the date and time each image was taken. For example, the State identified
that it sought a conviction of especially aggravated sexual exploitation of a minor for
Count 1 of Docket No. 12855. The State explained to the jury that Count 1 was
supported by evidence of a sexually explicit image of the victim labeled Exhibit 1,
testimony of the victim indicating the image was of her, and testimony from Detective
Levasseur noting the image was taken on the defendant’s cell phone on July 1, 2013.

       In total, the State reviewed twenty-six exhibits depicting sexually explicit images
of the victim which supported the defendant’s thirty-three convictions.2 Specifically, the
evidence supported convictions for eight counts of especially aggravated sexual
exploitation of a minor for acts that occurred on July 1, 2013. The evidence supported
convictions for two counts of especially aggravated sexual exploitation of a minor, one
count of statutory rape by an authority figure, and one count of incest for acts occurring
on July 2, 2013. Evidence of the defendant’s acts occurring on July 3, 2013 supported
convictions for three counts of especially aggravated sexual exploitation of a minor.
Based on evidence of his acts of July 7, 2013, the defendant was convicted of two counts
of especially aggravated sexual exploitation of a minor, one count of statutory rape by an
authority figure, and one count of incest. For the acts occurring on July 26, 2013, as seen
in the evidence, the defendant was convicted of seven counts of especially aggravated
sexual exploitation of a minor, one count of statutory rape by an authority figure, and one
count of incest. Finally, based upon the evidence the defendant was convicted of three
counts of especially aggravated sexual exploitation of a minor for acts that occurred on
July 29, 2013.

       As such, based upon our review of the record, we conclude no evidence of
unindicted offenses was offered at trial. The State offered proof of separate offenses
upon which it sought convictions against the defendant by connecting each indicted
offense to a sexually explicit image of the victim which was identified by testimonial
evidence from the victim and Detective Levasseur. Accordingly, this issue is without
merit and the defendant is not entitled to any relief.

       Furthermore, “[t]his Court has previously determined that a trial court’s failure to
properly instruct the jury about the State’s election may be harmless ‘where the
prosecutor provides during closing argument an effective substitute for the missing
instruction.’” State v. Watt, No. M2012-01487-CCA-R3CD, 2014 WL 97291, at *15
(Tenn. Crim. App. Jan. 10, 2014) (citing State v. Adrain Keith Washington, No. M2008–

        2
         In Counts 28 and 29 of Docket No. 12912, the defendant was charged with and convicted of one
count of sexual exploitation of a minor and one count of rape. Accordingly, these convictions are not at
issue on appeal.
                                                 -5-
01870–CCA–R3–CD, 2010 WL 653008, at *6 (Tenn. Crim. App. Feb. 24, 2010)
(quoting State v. William Darryn Busby, No. M2004–00925–CCA–R3–CD, 2005 WL
711904, at *6 (Tenn. Crim. App., Mar. 29, 2005)); see also State v. James Arthur
Kimbrell, No. M2000–02925–CCA–R3–CD, 2003 WL 1877094, at *23 (Tenn. Crim.
App., Apr. 15, 2003)); State v. Michael J. McCann, No. M2000–2990–CCA–R3–CD,
2001 WL 1246383, at *5 (Tenn. Crim. App., Oct. 17, 2001), perm. app. denied (Tenn.
Apr. 1, 2002); State v. William Dearry, No. 03C01–9612–CC–00462, 1998 WL 47946, at
*13 (Tenn. Crim. App., Feb. 6, 1998), perm. app. denied (Tenn. Jan. 19, 1999)), perm.
app. denied (Tenn. Aug. 26, 2010)). The record indicates the State’s closing argument
effectively cured any alleged error of the trial court regarding election. Again, this issue
is without merit.

       Next, we review the defendant’s allegation that the trial court erred in ordering
portions of his sentences to be served consecutively. Though the defendant concedes in
his brief that the trial court properly imposed consecutive sentencing, he takes issue with
the aggregate effect of the imposed sentences resulting in an eighty-four-year prison
term. The defendant argues the effective eighty-four-year sentence was “greater than
deserved for the offenses” and was not “the least severe measure necessary to achieve the
purposes for which the sentence [was] imposed.” Tenn. Code Ann. § 40-35-103(4). We
disagree.

       This Court reviews within-range sentences imposed by the trial court under an
abuse of discretion standard with a presumption of reasonableness. State v. Bise, 380
S.W. 3d 682, 707 (Tenn. 2012). The party appealing a sentence bears the burden of
establishing that the sentence was improper. Tenn. Code Ann. § 40–35–401, Sentencing
Comm’n Cmts. Further, in order to comply with the Sentencing Act, the trial court must
state on the record the statutory factors it considered and the reasons for the ordered
sentence. Tenn. Code Ann. § 40–35–210(e); Bise, 380 S.W.3d at 705-06. “Mere
inadequacy in the articulation of the reasons for imposing a particular sentence, however,
should not negate the presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06.
Thus, a sentence imposed by a trial court “should be upheld so long as it is within the
appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709-10. ; State v.
Pollard, 432 S.W.3d 851, 859-60 (Tenn. 2013) (applying the abuse of discretion standard
with a presumption of reasonableness to consecutive sentencing).

       It is well settled that the trial court “may order sentences to run consecutively if it
finds by a preponderance of the evidence that one or more of the statutory criteria exists.”
State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Here, the court found two
statutory criteria existed in the record to warrant consecutive sentencing. Specifically,
the court found “[t]he defendant is an offender whose record of criminal activity is
                                            -6-
extensive” and “[t]he defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor.” Tenn. Code Ann. § 40-35-115 (b)(2), (b)(5). Both
criteria are explicit in the record and support the trial court’s consecutive sentencing as to
the defendant’s convictions.

       Further, however, the defendant has failed to show the trial court abused its
discretion by imposing partial consecutive sentencing. The record shows the defendant
was convicted of thirty-three sexual crimes against his minor daughter which occurred on
six different days in July 2013. The trial court limited the defendant’s exposure by
grouping the convictions for especially aggravated sexual exploitation of a minor by date
of offense. The trial court ran the sentences for convictions occurring on the same date
concurrently to one another, while running the offenses occurring on different dates
consecutively to one another. The court then imposed partial consecutive sentences to
the remaining convictions. In doing so, the trial court greatly limited the defendant’s
potential sentence as the trial court could have imposed consecutive sentencing for each
of the thirty-three convictions.3 Tenn. Code Ann. § 40-35-115 (b)(2), (b)(5); Black, 924
S.W.2d at 917. Accordingly, we conclude the trial court did not abuse its discretion in
imposing partial, consecutive sentencing for the convicted offenses and the defendant is
not entitled to relief as to this issue. Tenn. Code Ann. § 40-35-115.

                                         CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.




                                                  ____________________________________
                                                  J. ROSS DYER, JUDGE




       3
      According to the State’s calculations at the sentencing hearing, the defendant faced a potential
maximum sentence of 358 years.
                                                -7-
