        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 19, 2010

              STATE OF TENNESSEE v. LAWRENCE J. BROZIK

                  Appeal from the Criminal Court for Fentress County
                          No. 8929    Shayne Sexton, Judge




                No. M2009-01142-CCA-R3-CD - Filed January 18, 2011


The Defendant, Lawrence J. Brozik, was charged with ten counts of especially aggravated
sexual exploitation of a minor, a Class B felony. See Tenn. Code Ann. § 39-17-1005(c)
(2003). Following a jury trial, the Defendant was convicted of ten counts of facilitation of
especially aggravated sexual exploitation of a minor, a Class C felony. See Tenn. Code Ann.
§ 39-11-403(b) (2003). The trial court sentenced the Defendant as a Range I, standard
offender to five years for each count and ordered that five of his sentences be served
consecutively, for a total effective sentence of twenty-five years. In this direct appeal, he
contends that: (1) the State presented insufficient evidence to convict him; (2) the State failed
to disclose promises made to, or agreements with, the minor victim’s husband; (3) the trial
court erred when it found that he was the leader in the commission of an offense involving
two or more criminal actors; (4) the disparity between the Defendant’s sentence and the
minor victim’s husband’s sentence violated the Tennessee Criminal Sentencing Reform Act
of 1989; (5) the trial court erred by imposing consecutive sentences; and (6) the trial court
erred when it found that evidence presented at the motion for new trial hearing was not
sufficient to support a new trial. After our review, we affirm the Defendant’s convictions
but modify his sentences to be served concurrently.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
D. K ELLY T HOMAS, J R., JJ., joined.

Tina L. Sloan, Assistant District Public Defender (on appeal); Paul Crouch, Office of the
Public Defender (at trial), LaFollette, Tennessee, for the appellant, Lawrence J. Brozik.
Robert E. Cooper, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; William Paul Phillips, District Attorney General; and John G. Galloway, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                                OPINION

                                  Factual Background
       In May 2005, a Fentress County grand jury indicted the Defendant for ten counts of
especially aggravated sexual exploitation of a minor.1 His trial was held on May 3 and 5,
2006.

        Roberta Mitchell testified that, in April 2005, she worked with the Department of
Children’s Services as a case worker. She recalled that she investigated allegations that nude
photographs of B.C., a minor, had been placed on the internet. Ms. Mitchell stated that she
received copies of the photographs from her supervisor, as well as the names of people
thought to be involved in the production of the photographs. She testified that the
Defendant’s name was among those given to her. Ms. Mitchell said that the Tennessee
Bureau of Investigation (TBI) ultimately took over the investigation, but that she did sit-in
on part of the TBI’s interviews with B.C. and Cosby Conatser, Jr.,2 the adult male depicted
in the photos.


       B.C., seventeen years old at the time of the trial, testified that she was married to Mr.
Conatser, whom she had dated since she was fourteen years old, and that they had two
children. She stated that Mr. Conatser introduced her to the Defendant in 2003, when she
was fourteen years old and still in the eighth grade. B.C. said that she first went to the
Defendant’s house in the summer of 2003. She recalled that, during a visit to his house that
summer, she told the Defendant that she was fourteen years old and was about to start the
ninth grade. However, she acknowledged that Mr. Conatser had previously told the
Defendant that she was older.

       B.C. testified that she and Mr. Conatser used the Defendant’s Polaroid camera to take
pictures of each other naked at the Defendant’s house in 2003. She stated that, although the
Defendant was outside when the pictures were taken, he knew why they were using his
camera. B.C. recalled that, about four or five months after she first went over to his house,


        1
         The relevant ten offenses at issue in this appeal are counts two through eleven of the indictment;
count one was severed.
        2
            In a separate indictment, Mr. Conatser was charged in conjunction with the photos at issue.

                                                     -2-
the Defendant began taking pictures of her and Mr. Conatser’s sexual activities. Among the
photos she identified as being in the first set of pictures the Defendant took with his digital
camera were Exhibits 14, 15, 16, and 17, which all showed B.C. performing fellatio on Mr.
Conatser.3 B.C. testified that it was the Defendant’s idea to take these four photos. She
elaborated, “I said I didn’t want to, and he said that it would be an experience and so, I went
ahead and done it.”

        B.C. said that the Defendant also took the photographs identified in Exhibits 18, 21,
and 22, and that it was his idea to take the photos. She described that Exhibit 18 showed
“[Mr. Conatser’s] private parts on my private parts,” Exhibit 21 depicted “[Mr. Conatser’s]
tongue on my private parts and his finger in my private parts,” and Exhibit 22 was “[Mr.
Conatser’s] tongue on my private part.” She testified that she felt “very uncomfortable”
about the Defendant taking pictures of Mr. Conatser performing cunnilingus on her, and
explained, “I’d tell him I didn’t want to and he’d just keep on and asking and asking, so I just
finally gave in and done it.” She also stated, “I told him I didn’t want him to take pictures,
and he told me if I didn’t look at him, I wouldn’t know he was there.” B.C. testified that
after the Defendant took the pictures, she put them on his computer, printed one copy of each
photo, took the pictures home with her, and put them in a locked box at her mother’s house.
She also testified that she erased the pictures from the Defendant’s computer after she printed
them out.

      B.C. testified that the Defendant took the photo in Exhibit 27, which showed her
performing fellatio on Mr. Conatser. She said that she downloaded the digital picture to the
Defendant’s computer but did not print it out.

      She testified that the Defendant also took the photo in Exhibit 28, which depicted Mr.
Conatser with his mouth on her buttocks. B.C. explained that she and Mr. Conatser were


        3
          The State elected the following pictures to correspond with each of the ten counts of aggravated
sexual exploitation of a minor listed in the indictment:
Count            Exhibit number            Description
2                14                        B.C. performing fellatio
3                15                        B.C. performing fellatio
4                16                        B.C. performing fellatio
5                17                        B.C. performing fellatio
6                22                        Cunnilingus performed on B.C.
7                21                        Cunnilingus performed on B.C.
8                18                        Sexual intercourse
9                27                        B.C. performing fellatio
10               28                        Mr. Conatser licking B.C.’s anus
11               29                        Mr. Conatser licking B.C.’s nipple.

                                                   -3-
“fooling around” while the Defendant was outside and, when he came back in and saw them,
he wanted to take pictures. She said, “I said no, and he said—just said, ‘Just go ahead and
let me.’” She said that she did not believe she downloaded Exhibit 28 to the computer, and
explained that sometimes she downloaded the pictures and sometimes the Defendant did.
B.C. testified that when the Defendant put the photos on his computer, “[h]e would tell us
and then he would pull them up and show us some.”

       B.C. testified that Exhibit 29 was a photo of Mr. Conatser with his “tongue on my
breast” and that the Defendant took the picture. She also testified that the photo was the
Defendant’s idea, explaining, “He told [Mr. Conatser] to put his tongue there on my breast
before I put my bra back on.”

       She stated that, for some of the pictures, the Defendant hung a blue tarp over a string
across the wall “[s]o nobody could tell where the pictures had been [taken].”

       During cross-examination, B.C. said that she spoke to a TBI agent about the photos
in April 2005 and that she initially thought she was in trouble. She said that a Department
of Children’s Services worker was there and that she was scared because she did not want
anything to happen to her five-month-old baby. B.C. also acknowledged that the TBI agent
told her that he was also going to talk to Mr. Conatser.

        B.C. stated that, at one time, the Defendant said that he was going to leave his
property to Mr. Conatser. However, she said that he had later changed his mind and was
going to bequeath it to someone else. She also testified that a few weeks before she spoke
to the TBI agent, Mr. Conatser and the Defendant got into an argument over money and did
not talk to each other after that. She recalled that Mr. Conatser broke his hand when he
punched a crate during the argument.

      B.C. testified that the Defendant’s digital camera had a tripod and a timer. She
acknowledged that she and Mr. Conatser had used the camera’s timer-function before.

       TBI Special Agent Steve Vinsant testified that, after he interviewed B.C. and Mr.
Conatser, he obtained a warrant to search the Defendant’s house. From the Defendant’s
house, he collected three laptop computers, a digital camera, two printers, a Polaroid camera,
90 CD-ROMs, about a hundred floppy disks, sheets, bedding, and a blue tarp. Special Agent
Vinsant testified that the computer evidence recovery unit examined the computers that were
confiscated. He also stated that, in conjunction with these photographs, Mr. Conatser had
been charged with a crime.




                                             -4-
       Tom Davis, a computer evidence specialist employed by TBI, was deemed an expert
in computer evidence recovery by the trial court. He testified that he examined the evidence
collected at the Defendant’s house. Mr. Davis stated that he recovered the photographs
shown in Exhibits 27 and 28 from one of the Defendant’s laptops and that he recovered the
photograph in Exhibits 29, 30, and 314 from a memory stick for a digital camera.

       Mr. Davis testified that, even if a person believes they have deleted a file from their
computer or memory stick, someone trained in computer forensics may be able to recover the
file. However, he said that a person with average computer skills would probably not be able
to recover the file. He also testified that he had no way of telling who downloaded the
pictures to the Defendant’s computer. Mr. Davis said that the files he recovered from the
Defendant’s computer were saved in the directory under the Defendant’s name.

       The Defendant presented the testimony of Michael Campbell, who testified that he
lived next door to the Defendant and that they had been friends for four years. Mr. Campbell
recalled that he went to the Defendant’s house every day and that he saw B.C. and Mr.
Conatser there every other day. He estimated that he was at the Defendant’s house ninety
percent of the time that B.C. and Mr. Conatser were there. He testified that B.C. “always
seemed like she was happy to be there,” and he described that she would be using the
Defendant’s computer “all the time.” Mr. Campbell testified that he never saw any of the
photos at issue at the Defendant’s house, nor did he see B.C. and Mr. Conatser engaged in
sexual activity at the Defendant’s house.

        The Defendant testified that he met Mr. Conatser at the mill where he bought wood
for his furnace. He said that Mr. Conatser later introduced him to B.C. when he brought her
over to the Defendant’s house and that the couple subsequently became frequent guests at
his house. The Defendant stated that he did not find out B.C.’s real age until she said, “Now
we can get married. I’m 16.” He said that, when he first met B.C., both Mr. Conatser and
B.C. told him that she was eighteen years old.

       The Defendant recalled that B.C. “liked to play on the computer a lot” and that Mr.
Conatser and him would talk “pieces of philosophy.” The Defendant also testified that he
planned to leave his property to Mr. Conatser but that he later decided not to because he did
not approve of Mr. Conatser’s drug use. He stated that, when he informed Mr. Conatser of
his decision, Mr. Conatser “got disturbed . . . and then that led into some more kinds of
conflict.”




       4
           Exhibits 30 and 31 were photos that B.C. testified that she and Mr. Conatser took themselves.

                                                   -5-
       The Defendant also testified that he had lent Mr. Conatser money on multiple
occasions, the last time lending him five hundred dollars so that he could buy a car. The
Defendant said that he had loaned the couple the money because he was tired of being their
“taxicab.” He said that they would call him “incessantly” and ask him to drive them places.

        The Defendant said that Mr. Conatser failed to pay him two hundred dollars by the
agreed upon date and that they argued over the issue several days later. The Defendant
recalled that, during the argument, Mr. Conatser broke his hand when he punched a wall.
The Defendant also testified that, after this argument, Mr. Conatser said, “F you. I’m gonna
tell them you shot the dirty pictures.” The Defendant stated that he had not heard of any dirty
pictures before that time. He also said that three weeks after Mr. Conatser’s threat, Special
Agent Vinsant came to his house. The Defendant stated that he had not spoken to Mr.
Conatser since the day they argued and Mr. Conatser broke his hand.

       The Defendant testified that he had not seen B.C. and Mr. Conatser having sex in his
house. He also said that he had not taken or seen—on his computer, camera, or
otherwise—any sexually explicit pictures of Mr. Conatser and B.C. He did admit that he had
taken “maybe a thousand” photos of B.C.’s feet, and elaborated, “I like feet. I don’t deny it.”

      The Defendant acknowledged that it appeared from the background in the photos that
Exhibits 27, 28, and 29 were taken in his home. However, he explained that there were times
when B.C. and Mr. Conatser would be alone at his house. He explained, “They had access
to my house. . . . I said, you know, just treat this as your own. I left the door unlocked
constantly for them.” He also said that sometimes when he came home, B.C. and Mr.
Conatser were already there.

        On May 5, 2006, a jury convicted the Defendant of ten counts of the lesser-included
offense of facilitation to commit especially aggravated sexual exploitation of a minor. The
trial court held the Defendant’s sentencing hearing on November 22, 2006, and sentenced
the Defendant to five years for each count. The trial court ordered that five of the
Defendant’s sentences run consecutively, for a total effective sentence of twenty-five years.
The Defendant filed a timely Motion for New Trial on November 22, 2006, and on December
2, 2008, he filed an Amended Motion for New Trial and a Motion to Reconsider Sentence.
After a hearing on January 26, 2009, the trial court filed an order denying the Defendant’s
motions. The Defendant now appeals.

                                          Analysis
        In this appeal, the Defendant presents the following issues for review: (1) the State
presented insufficient evidence to convict him; (2) the State failed to disclose promises made
to, or agreements with, Mr. Conatser; (3) the trial court erred when it found that he was a

                                              -6-
leader in the commission of an offense involving two or more criminal actors; (4) the
disparity between the Defendant’s sentence and Mr. Conatser’s sentence violated the
Tennessee Criminal Sentencing Reform Act of 1989; (5) the trial court erred by imposing
consecutive sentences; and (6) the trial court erred when it found that evidence presented at
the motion for new trial hearing was not sufficient to support a new trial.

I. Sufficiency
        The Defendant contends that the State presented insufficient evidence to convict him
of facilitation to commit especially aggravated sexual exploitation of a minor. He argues that
B.C.’s “testimony was so inconsistent and improbable as to create a reasonable doubt.”

       Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”
A convicted criminal defendant who challenges the sufficiency of the evidence on appeal
bears the burden of demonstrating why the evidence is insufficient to support the verdict,
because a verdict of guilt destroys the presumption of innocence and imposes a presumption
of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35
S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This
Court must reject a convicted criminal defendant’s challenge to the sufficiency of the
evidence if, after considering the evidence in a light most favorable to the prosecution, we
determine that any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).

        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

        At the time of the offense, the pertinent statute regarding the offense of especially
aggravated sexual exploitation of a minor provided, “It is unlawful for a person to knowingly
promote, employ, use, assist, transport or permit a minor to participate in the performance
or in the production of material which includes the minor engaging in: (1) Sexual activity;

                                               -7-
or (2) Simulated sexual activity that is patently offensive.” Tenn. Code Ann. § 39-17-
1005(a) (2003). Because the Defendant was convicted of facilitation of especially
aggravated sexual exploitation of a minor, we note that “[a] person is criminally responsible
for the facilitation of a felony, if, knowing that another intends to commit a specific felony,
but without the intent required for criminal responsibility under § 39-11-402(2), the person
knowingly furnishes substantial assistance in the commission of the felony.” Tenn. Code
Ann. § 39-11-403(a) (2003).

        After reviewing the record, we conclude that the evidence presented by the State was
sufficient to convict the Defendant of ten counts of facilitation to commit especially
aggravated sexual exploitation of a minor. B.C. testified that, when she started going over
to the Defendant’s house in the summer of 2003, she told him that she was fourteen years old
and that she was about to begin the ninth grade. She testified that, four or five months after
she started visiting his house, the Defendant began using his digital camera to take
photographs of B.C. and Mr. Conatser engaged in sexual activity. B.C. testified that the
photos in Exhibits 14, 15, 16, and 17—the images corresponding with counts two through
five—were taken by the Defendant with his digital camera and that the photos were his idea.
She testified that she did not want to take the photos but that the Defendant told her “that it
would be an experience,” and she agreed to let him take the pictures. B.C. testified that the
Defendant took the photos in Exhibits 18, 21, and 22—the basis for counts six through eight.
She also said that she downloaded the pictures to the Defendant’s computer, printed them
out, and then erased them. Finally, B.C. testified that the Defendant took the photographs
in Exhibits 27, 28, and 29, which were the corresponding images for counts nine through
eleven. Moreover, Mr. Davis testified he recovered Exhibits 27 and 28 from one of the
laptop computers seized from the Defendant’s home. He also recalled that he recovered
Exhibit 29 from a memory stick that was found in the Defendant’s home.

        In his brief, the Defendant contends that B.C.’s testimony was inconsistent because
she testified at trial that the Defendant took pictures of her twenty different times, however,
she originally told Special Agent Vinsant that the Defendant took pictures about ten times.
He also argues that her testimony was influenced by the facts that she was married to Mr.
Conatser, who had pending criminal charges related to this matter, and had young children
whom she worried would be taken away from her. However, the jury was made aware of
each of these inconsistencies and potential influences, and it chose to convict the Defendant
of ten counts of a lesser-included offense. The credibility of witnesses is determined by the
trier of fact, and this Court will not re-evaluate the evidence.

      Thus, after reviewing the record, we conclude that the State presented sufficient
evidence for any rational trier of fact to determine beyond a reasonable doubt that the



                                              -8-
Defendant committed ten counts of facilitation to commit especially aggravated sexual
exploitation of a minor.

II. Brady 5 Material
       The record indicates that, in May 2005, Mr. Conatser was charged with three counts
of statutory rape, a Class E felony,6 and one count of especially aggravated sexual
exploitation of a minor, a Class B felony. See Tenn. Code Ann. § 39-13-506(c), -17-1005(c)
(2003). However, on March 12, 2007, pursuant to the terms of a plea agreement with the
State, Mr. Conatser pleaded guilty to one count of statutory rape and was sentenced to two
years to be served on probation. The other three counts of the indictment were dismissed in
accordance with the plea agreement. The Defendant asserts that “the trial court erred in not
finding that the State failed to disclose Brady materials, specifically, the existence and
substance of promises and agreements (between the State or its agents and [Mr.] Conatser
and/or his agent(s)) given for the purpose of obtaining [B.C.]’s testimony, cooperation or
disclosure of information.”

      Mr. Conatser testified during the Defendant’s hearing for his motion for new trial.
When asked about the circumstances surrounding a statement he gave to Special Agent
Vinsant at the beginning of the investigation into the photographs, Mr. Conatser recalled,
“He said if I didn’t show up in [c]ourt, I could be facing up to eight years.”

       Mr. Conatser also testified that, after his statutory rape conviction, he was originally
placed on supervised probation, but after he paid his fines, his probation became
unsupervised. When asked if that was what his probation officer recommended, he replied,
“No. That’s what they recommended here in [c]ourt—after I paid my fines, I could be off
supervised probation.” Mr. Conatser acknowledged that he violated his probation after he
was convicted of statutory rape, but that never appeared before the court and that he “just
talked to Mitch about it and everything—John Galloway.”7 He also testified that he worked
as a confidential informant for the State in February 2008.

       B.C. also testified during the Defendant’s motion for new trial hearing. She admitted
that, when she spoke with Agent Vinsant in April 2005, she was concerned about her baby
being taken away from her and about the possibility that Mr. Conatser would go to jail.


        5
            See Brady v. Maryland, 373 U.S. 83 (1963).
        6
            Mr. Conatser is eight years older than B.C.
        7
          The record does not reflect who “Mitch” is; however, the record indicates that John Galloway is
an Assistant District Attorney.

                                                     -9-
However, she testified that no one told her that if she cooperated, Mr. Conatser would not
go to jail. She said she cooperated because she was worried her child would be taken away.

        In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court
established the prosecution’s duty to furnish the accused with exculpatory evidence upon
request by the defense. Id. at 87. Any “suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. The
duty to disclose exculpatory evidence extends to all “favorable information” irrespective of
whether the evidence is admissible at trial. Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001).
“Favorable information” includes evidence that could be used to impeach the State’s
witnesses. Id. at 55-56 (citations omitted). Further, our supreme court has instructed that the
State must disclose “evidence of any agreement or promise of leniency given to the witness
in exchange for favorable testimony against an accused.” State v. Robinson, 146 S.W.3d
469, 512 (Tenn. 2004).

     In order to establish a due process violation under Brady, a defendant must
demonstrate the following:

       (1) The defendant must have requested the information (unless the evidence
       is obviously exculpatory, in which case the State is bound to release the
       information whether requested or not);
       (2) The State must have suppressed the information;
       (3) The information must have been favorable to the accused; and
       (4) The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). In order to establish that exculpatory
evidence is “material,” a defendant must show that “the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine confidence in the
verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995); see also Edgin, 902 S.W.2d at 390.
There must be a “‘reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’” Edgin, 902 S.W.2d at 390 (quoting
Kyles, 514 U.S. at 435).

        Tennessee courts have examined situations in which a State’s witness pleaded guilty
to an offense after testifying against a defendant. In State v. Williams, a State’s witness’ case
was continued until after the defendant’s trial. 690 S.W.2d 517, 525 (Tenn. 1985). The
witness pleaded guilty and received the minimum sentence for the offense. Id. The court
noted that “the District Attorney General positively asserted that no leniency had been
promised to [the witness] and the record is devoid of any evidence that plea negotiations had

                                              -10-
in fact taken place or that the State had offered anything in exchange for a guilty plea from
[the witness].” Id. Finding that the circumstances only amounted to a “suspicion,” our
supreme court held that there was no Brady violation. Id.

       In State v. Robinson, a State’s witness testified that, although the State had not made
any promises to him in exchange for his testimony, he hoped that, because he was testifying,
the State would not pursue the death penalty against him. 146 S.W.3d 469, 512-13 (Tenn.
2004). Moreover, the witness’ attorney testified that the situation was like “a wink and a
nod” because “everybody knows what’s going to happen, but there is never an offer
conveyed.” Id. at 513. Our supreme court held that there was no Brady violation, and it
noted that “the fact that [the witness] later pled guilty to a lesser charge of facilitation of the
offenses does not establish the existence of a prior agreement.” Id. at 514.

        In the instant case, the Defendant did not present any evidence that established the
existence of an agreement between the State and Mr. Conatser before the Defendant’s trial
that was designed to procure B.C.’s testimony. The Defendant’s trial was held in May 2006,
and Mr. Conatser did not plead guilty to one count of statutory rape until March 2007. B.C.
testified that no one told her that, if she did not testify, then Mr. Conatser would go to jail.
She explained that she cooperated because she did not want her child taken away from her.
We note that the jury heard testimony that B.C. was concerned about something happening
to her baby. The jury also heard testimony that B.C. was married to Mr. Conatser and that
Mr. Conatser had also been charged in connection with the photographs. Thus, because the
Defendant did not establish the existence of a prior plea agreement, we conclude that there
was no Brady violation. The Defendant is not entitled to relief on this issue.

III. Sentencing
        The Defendant presents the following sentencing issues for review: (a) the trial court
erred when it found the Defendant was the leader in the commission of an offense involving
two or more criminal actors; (b) the disparity between the Defendant’s sentence and Mr.
Conatser’s sentence violated the Tennessee Criminal Sentencing Reform Act of 1989; and
(c) the trial court erred by imposing consecutive sentences.

       On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
defendant challenges the length, range, or manner of service of a sentence, it is the duty of
this Court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. Tenn. Code
Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant

                                               -11-
facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

A. Enhancement Factor
       At his sentencing hearing, the Defendant executed a waiver agreeing to be sentenced
in accordance with the 2005 amendments to the Sentencing Act, which became effective
June 7, 2005. The amended statute no longer imposes a presumptive sentence. Carter, 254
S.W.3d at 343. As further explained by our supreme court in Carter,

       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].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes
       and principles include “the imposition of a sentence justly deserved in relation
       to the seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a
       punishment sufficient “to prevent crime and promote respect for the law,”
       [Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant’s
       “potential or lack of potential for . . . rehabilitation,” [Tenn. Code Ann.] §
       40-35-103(5).

Id. (footnote omitted).

       The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing
of the enhancement and mitigating factors, as it rendered these factors merely advisory, as
opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing
law, the trial court is nonetheless required to “consider” an advisory sentencing guideline that

                                              -12-
is relevant to the sentencing determination, including the application of enhancing and
mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing
factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to
Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court
exercises when imposing a sentencing term. Id. at 344.

      To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that the trial court applied inappropriate mitigating
and/or enhancement factors or otherwise failed to follow the Sentencing Act, the
presumption of correctness fails and our review is de novo. Carter, 254 S.W.3d at 345.

        As we have noted, each of the Defendant’s convictions is a Class C felony. As a
Range I, standard offender, the Defendant’s sentencing range for each conviction was three
to six years. See Tenn. Code Ann. § 40-35-112(a)(3).

       The trial court found the following enhancement factors applied to the Defendant: (1)
The Defendant has a previous history of criminal convictions or criminal behavior in addition
to those necessary to establish the appropriate range8 ; (2) The Defendant was a leader in the
commission of an offense involving two or more criminal actors; and (7) The offense
involved a victim and was committed to gratify the Defendant’s desire for pleasure or
excitement. See Tenn. Code Ann. § 40-35-114(1), (2), (7). The trial court also found that
one mitigating factor applied: (1) The Defendant’s criminal conduct neither caused nor
threatened serious bodily injury. See Tenn. Code Ann. § 40-35-113(1). The Defendant
received a sentence of five years for each of his ten convictions.

       The Defendant only contests the application of the second enhancement factor—that
he was a leader in the commission of an offense involving two or more criminal actors.
Discussing the application of this factor to the Defendant, the trial court commented, “There
is, I think, the potential charge for someone else in this case but by virtue of the
[D]efendant’s age, the placement and the providing of the—of the equipment necessary to
commit this offense, he was, in effect, the leader of this—of this activity.” We note that
“being a leader in the commission of an offense does not require that the defendant be the


        8
          The pre-sentence report revealed that, in 1974, the Defendant was sentenced to fifteen years in a
Florida prison after he pleaded guilty to manslaughter following the death of a child. In 1988, the Defendant
received a sentence of eight years following a conviction for drug trafficking in Mexico.

                                                    -13-
sole leader but only that he be ‘a’ leader.” State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim.
App. 1993); see also State v. Frank E. Huey et al., No. M2000-02793-CCA-R3-CD, 2002
WL 517132, at *9-10 (Tenn. Crim. App., Nashville, Apr. 5 2002) (enhancement factor for
being the leader in the commission of the offense affirmed for a defendant who was
convicted of facilitation of first degree murder and facilitation of attempted first degree
murder); State v. Oneal Sanford, No. E1999-02089-CCA-R3-CD, 2001 WL 681312, at *8
(Tenn. Crim. App., Knoxville, June 18, 2001) (defendant convicted of facilitation of
attempted especially aggravated robbery and facilitation of aggravated assault found to be
leader in the commission of the offense). The State established that the Defendant took the
photographs with his digital camera and that some of the images had been downloaded onto
the Defendant’s computer. Moreover, B.C.’s testimony at trial revealed that it was the
Defendant’s idea to take these photos and that she initially did not want him to take them, but
obliged when he said that “it would be an experience.” We conclude that the trial court did
not err when it applied this enhancement factor to the Defendant. This issue is without merit.

B. Disparity in Sentences
        The Defendant asserts that an unjustified disparity occurred when he was sentenced
to five years for each of his ten convictions for facilitation to commit especially aggravated
sexual exploitation of a minor and Mr. Conatser was sentenced to two years for one
conviction of statutory rape, given that both of their convictions arose from the same events.
The Defendant claims that this disparity violates the Tennessee Criminal Sentencing Reform
Act of 1989.

        One of the purposes of our sentencing statute “is to assure fair and consistent
treatment of all defendants by eliminating unjustified disparity in sentencing and providing
a fair sense of predictability of the criminal law and its sanctions.” Tenn. Code Ann. § 40-
35-102(2). When determining a defendant’s sentence, trial courts are instructed to consider
the following:

       (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 §§ 40-35-113 and 40-35-114;
       (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 wishes to make in the defendant’s own behalf
       about sentencing.



                                             -14-
Tenn. Code Ann. § 40-35-210(b) (emphasis added).

       As the State correctly points out, nothing in the Sentencing Act allows trial courts to
consider the sentence of a defendant convicted of a different crime. Here, Mr. Conatser
pleaded guilty to one count of statutory rape, a Class E felony. The Range I sentence for a
Class E felony is one to two years; Mr. Conatser was sentenced to two years, to be served on
probation. The Defendant, on the other hand, was convicted of ten Class C felonies, for
which the Range I sentence is three to six years for each count. After finding that three
enhancement factors and one mitigating factor applied, the trial court sentenced the
Defendant to five years for each conviction. Therefore, we conclude that the disparity
between Mr. Conatser’s sentence and the Defendant’s sentences were justified—because one
was convicted of multiple Class C felonies and one was convicted of a single Class E felony.
The Defendant is not entitled to relief on this issue.

C. Consecutive Sentences
       Following the Defendant’s sentencing hearing, the trial court sentenced the Defendant
as a Range I, standard offender to five years for each of his ten convictions. The trial court
ordered that he serve five of his sentences consecutively, for a total effective sentence of
twenty-five years. The Defendant appeals the imposition of consecutive sentences.

        Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in
its discretion, order sentences to run consecutively if it finds any one of the following criteria
by a preponderance of the evidence:

       (1) The defendant is a professional criminal who has knowingly devoted the
       defendant’s life to criminal acts as a major source of livelihood;
       (2) The defendant is an offender whose record of criminal activity is extensive;
       (3) The defendant is a dangerous mentally abnormal person so declared by a
       competent psychiatrist who concludes as a result of an investigation prior to
       sentencing that the defendant’s criminal conduct has been characterized by a
       pattern of repetitive or compulsive behavior with heedless indifference to
       consequences;
       (4) The defendant is a dangerous offender whose behavior indicates little or
       no regard for human life, and no hesitation about committing a crime in which
       the risk to human life is high;
       (5) The defendant is convicted of two (2) or more statutory offenses involving
       sexual abuse of a minor with consideration of the aggravating circumstances
       arising from the relationship between the defendant and victim or victims, the
       time span of defendant’s undetected sexual activity, the nature and scope of the



                                               -15-
        sexual acts and the extent of the residual, physical and mental damage to the
        victim or victims;
        (6) The defendant is sentenced for an offense committed while on probation;
        or
        (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b). These criteria are stated in the alternative; therefore, only
one need exist to support the appropriateness of consecutive sentencing.

       Rule 32(c)(1) of the Tennessee Rules of Criminal Procedure provides that the trial
court “shall specify the reasons” for its decision that a defendant’s sentences run concurrently
or consecutively. However, in this case, the record reflects only that the trial court sentenced
the Defendant to five consecutive sentences per section 40-35-115(b)(5) of Tennessee Code
Annotated. Indeed, the State concedes that “the trial court failed to specify its reasons for
imposing consecutive sentences.” Thus, we review the imposition of consecutive sentences
de novo.

       Even though the conduct of the Defendant was reprehensible, and while not
disregarding the seriousness of crimes of this nature, we conclude that the circumstances in
this case militate against the application of Tennessee Code Annotated section 40-35-
115(b)(5). There was no special relationship between the Defendant and the victim. There
is no indication that these photographs represented a significant time span of undetected
sexual activity.9 Given the facts of this case, we cannot conclude that the nature and scope
of the sexual acts was aggravated beyond what is inherent in the offenses for which the
Defendant was convicted. Finally, as the State also concedes, there was no evidence
presented at trial or at the sentencing hearing that B.C. suffered any residual physical or
mental damage. Therefore, we conclude that the trial court erred when it ordered that five
of the Defendant’s convictions be served consecutively. We modify the Defendant’s
sentences to reflect that they be served concurrently and remand the case to the trial court for
entry of judgments consistent with this opinion.

IV. Newly Discovered Evidence
      The Defendant contends that, at his motion for new trial hearing, he presented new
evidence sufficient to support a new trial. Specifically, he notes the following exchange
between defense counsel and Mr. Conatser during the hearing:


       9
           B.C. replied in the affirmative when asked whether all of the pictures were taken between the
summer of 2003 and when the TBI spoke to her in April 2005; however, with the exception of Exhibits 14,
15, 16, and 17, she was unable to remember when the various photographs were taken. We also note that
the State concedes, “[T]he [D]efendant’s involvement was brief.”

                                                 -16-
       Q: Didn’t you, in fact, tell a person that if Mr. Brozik had seen [B.C.] nude,
       you would kill him?

       A: Yes, sir, I said that, but it was just—

       Q: You—no. That’s all I asked you. You did say that, didn’t you?

       A: I said that.

       Q: That was a friend of yours, wasn’t it?

       A: Yes, sir.

       Q: And you all were riding around together?

       A: Yes, sir.

       Q: And you said you didn’t understand how Mr. Brozik would get convicted
       of anything, didn’t you, because he hadn’t done nothing?

       A: I don’t remember what I said, sir. I just know what you’re talking about,
       yes.

The State argues that the Defendant has waived this issue by failing to raise it in either his
Motion for New Trial or Amended Motion for New Trial. We agree with the State that this
issue has been waived. See Tenn. R. App. P. 3(e) (stating that any ground upon which a new
trial is sought must be stated in a motion for new trial and, if not, “such issues will be treated
as waived”). Thus, the Defendant is not entitled to relief on this issue.

                                         Conclusion
        Based on the foregoing authorities and reasoning, we affirm the Defendant’s
convictions, but modify his sentences to reflect that they be served concurrently. We remand
to the trial court for entry of judgments consistent with this opinion.




                                                      _________________________________
                                                      DAVID H. WELLES, JUDGE




                                               -17-
