        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs September 19, 2012

       STATE OF TENNESSEE v. EDWARD WILLIAM CRANDALL

                 Appeal from the Criminal Court for Loudon County
                    No. 2010-CR-208     E. Eugene Eblen, Judge


               No. E2012-00338-CCA-R3-CD-FILED-MARCH 21, 2013


The Defendant, Edward William Crandall, challenges his conviction for aggravated rape of
a child, a Class A felony, alleging (1) that the evidence supporting his conviction was
insufficient to prove penetration of the victim and to identify him as the perpetrator and (2)
that the trial court erred when denying his motion for judgment of acquittal at the end of the
State’s case-in-chief because the State had failed to prove the victim’s age. After reviewing
the record and the applicable authorities, we discern no error and affirm the judgments of the
trial court. The case is remanded to the Loudon County Criminal Court for correction of the
judgments to reflect that service of Count 3 is consecutive to Count 1 and that service of
Count 2 is concurrent to Count 1.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

Kent L. Booher, Harriman, Tennessee, for the appellant, Edward William Crandall.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Russell Johnson, District Attorney General; and Frank Harvey, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

       The record reflects that the Defendant was indicted on July 1, 2010, for aggravated
rape of a child, a Class A felony (Count 1); especially aggravated sexual exploitation of a
minor, a Class B felony (Count 2); and aggravated sexual exploitation of a minor, a Class C
felony (Count 3). A trial was held on September 20, 2011, and the following evidence was
presented.

       Detective Daniel Schneider, employed in the Internet Crimes Against Children
Division (ICAC) of the Harriman Police Department, testified that in June 2010 he was
searching the internet for instances of trafficking child pornography when he discovered that
someone located at a residence on Northshore Drive in Lenoir City, Tennessee had been
sharing pornographic images of children on the internet. On July 1, 2010, Det. Schneider and
other officers executed a search warrant on that address, searching both the home and a
camper parked in the driveway, and seized several items. Det. Schneider testified that child
pornography was identified on two of the items seized: a media card associated with a digital
camera and an IBM Think Pad laptop. He explained that he viewed the media card and
“identified the [D]efendant on there and the child and some explicit photos.” Det. Schneider
determined from viewing the background that the photographs were taken in the camper
where the media card was located. Det. Schneider then turned the seized evidence over to
Investigator Tom Evans who conducted a forensic examination of the media card and
confiscated computers.

       Det. Schneider testified that during the search, he interviewed the other occupants of
the home and was told that the Defendant lived in the camper; the Defendant was not at home
when the search was conducted. Det. Schneider explained that he wanted to interview the
Defendant after viewing the media card and determining that it only contained photographs
of the Defendant and the child; the child was later identified as the Defendant’s son, A.C.1
After finding out that the Defendant was employed at Weigel’s, Det. Schneider asked Inv.
Evans to accompany him to the Weigel’s to speak with the Defendant about the explicit
photographs found on the media card; Detective Jason Joseph of the Harriman police
department accompanied Det. Schneider. At Weigel’s, the Defendant agreed to accompany
Det. Schneider and Inv. Evans to the ICAC office in Knoxville, Tennessee for an interview.
During the interview, the Defendant stated that he lived in the camper at the address on
Northshore. The Defendant also admitted that he had used Limewire2 to download teen and
preteen child pornography on his computer. Det. Schneider testified that they described to
the Defendant the images that they had found of him and his son on the media card, and the
Defendant started crying. According to Det. Schneider, when asked about the images, the
Defendant said that


1
    This court refers to child victims by their initials.
2
  Det. Schneider explained that Limewire was file sharing software that people downloaded on their
computer to share information, typically illegal images, videos, or movies, with other people on the internet.

                                                            -2-
       he had been to the park with his son, came home. His child was dirty, gave
       him a bath, he came out of the bath, he was naked. He admitted to us that he
       got kind of excited, that he had - had visions of a - an abuse that occurred
       earlier in his life by - I believe it was his grandfather, one of his grandfathers.
       He got curious of what it felt like; he said he did put his penis up against and
       next to his [two-year-old son’s] butt.

When asked how the child reacted, the Defendant told Det. Schneider that “the child just laid
there” and “kind of giggled or laughed.” After the interview, the Defendant wrote the
following letter to his son:

       Adam, I love you so much. I’m sorry about what all you are going through.
       I wish I could . . . take back what I did that day. I am so sorry Adam. You
       mean the world to me. Adam, Daddy really, really sorry for putting you in
       this. I’ll love you alway if I don’t get to see you anymore.
               Just so you know, you are the best thing that has ever happened to me.
       Daddy’s going to get help buddy. I want to see you grow up in life. Please
       forgive me. I’m truly sorry. I don’t know when I will . . . get to see you again
       but I want you to know I love you so much and that will never change. I love
       you. Daddy going to get help. Daddy needs it. Love always, Daddy.


       Months later, Det. Schneider received a letter from the Defendant asserting his
innocence and alleging that someone had threatened him not to tell the officers “who
downloaded the child pornography” or he “would have no place to stay” and that he “would
have to watch his back because his life would be hell.” The Defendant stated that he had
“dropped hints” during the interview but that Det. Schneider and Inv. Evans did not catch
them. He apologized for “not being truthful” and requested to speak with them again in the
presence of his attorney. Det. Schneider testified that the Defendant neither dropped any
hints nor insinuated that anyone else was involved in any way in downloading the child
pornography nor did he allude to anybody or anything thing else during the interview.

       Det. Schneider admitted on cross-examination that the interview with the Defendant
taken in the ICAC Knoxville office was not recorded but explained that it was ICAC
Harriman’s policy not to record interviews. Det. Schneider also admitted that they could not
identify the man in what is referred to as the “pen[ile] penetration photograph” but that the
Defendant “admitted that he took a picture of one of the times he did it” during the interview
at ICAC Knoxville. Det. Schneider denied that the Defendant ever mentioned during the
interview that he had a prior arrest for a domestic violence charge for kicking in the door of
his son’s mother’s home one day.

                                               -3-
       Det. Schneider testified on re-direct that the Defendant just mentioned his brother,
Christopher Crandall, as a potential suspect for the first time at trial and that officers had
never been told by anyone living in the home that Christopher Crandall resided there. Det.
Schneider also testified that the Defendant was the only person with internet access at the
Northshore address who admitted to downloading child pornography to a computer.

        Inv. Evans, employed in the ICAC division of the Knoxville Police Department, was
qualified as an expert in computer, electronics, and online evidence collection and
evaluation. He testified that he received a phone call from Det. Schneider asking for his
assistance in interviewing the Defendant and examining a media card and other evidence that
Det. Schneider had recovered during a search of the Defendant’s residence. Inv. Evans
explained that Det. Schneider had previewed the media card and that he believed the card
contained explicit photographs of a child victim located in Loudon County. Inv. Evans
testified that he met Det. Schneider at the Defendant’s job where the Defendant agreed to
come to the ICAC Knoxville office for an interview. Upon his arrival, the Defendant was
given his Miranda rights, and he executed a waiver of those rights. The Defendant was then
informed about the items recovered during the search, the images of his son that were found
on the media card, and the officer’s suspicion that someone at the residence was
downloading and distributing child pornography on a computer.

        Inv. Evans testified that when he told the Defendant about the images of his son
located on the media card recovered in the camper, the Defendant “broke down” and “started
to cry.” When asked what led him to take the photos of his son, the Defendant explained that
after he and his son returned from the park, he was changing his son’s pull-up, and his son
started running around the camper naked. The Defendant stated that he put his son on the
couch and “got curious.” According to the Defendant, his

       abuse “came back to [him,]” and he “wanted to see how it would feel.” He
       stated that his son just laid there and did not cry. His son giggled. [The
       Defendant] stated that his son was completely nude. He stated I rubbed my
       penis around and near his butt, I never tried going in. He stated that he didn’t
       know why he took the pictures of the abuse. [The Defendant] stated that they
       went back outside so he would not be tempted again.

        Inv. Evans testified that, during a break, the Defendant told him, “I’m going to jail,
I’ll never see my son again, I’ve lost a place to stay. I hate myself.” After the interview, Inv.
Evans reviewed the images on the computer and the media card for the first time. Inv. Evans
testified that the images on the media card were taken with a camera similar to the Nikon
Cool Pix camera seized from the Defendant’s camper. According to Inv. Evans, the media
card was found either under the Defendant’s mattress or in his bedding during the search.

                                               -4-
Inv. Evans printed the images from the media card and presented a folder containing those
photographs at trial. On the IBM Think Pad computer, identified as belonging to the
Defendant, Inv. Evans located 200 images and 25 videos of child pornography downloaded
from LimeWire. Inv. Evans also concluded that the Defendant was the primary or only user
of the computer containing these images based on the email history and MySpace
information found on the computer and that none of the other computers seized contained
any file sharing software or child pornography.

        The Defendant’s mother testified that at the time of the incident, there were five
people living in the home: herself, her father, her mother, the Defendant, and her other son,
Christopher. She explained that Christopher and the Defendant lived in the camper and that
she often stayed in the camper when she was not needed in the home to care for her sick
mother. Ms. Meeler testified that Christopher also used the IBM Think Pad, the computer
that the child pornography was found on. When Ms. Meeler was shown the “pen[ile]
penetration photograph,” she explained that the man in the photograph was not the Defendant
because in May 2010 the Defendant developed a big scar in that area after an ingrown hair
became infected. She also explained that the Defendant has two brown birthmarks on the top
of his penis but admitted that the photograph does not show it from that angle.

        The Defendant also testified in his defense. The Defendant stated that he signed the
waiver of his Miranda rights before he knew what the officers wanted to discuss with him.
When asked about the letter he wrote to his son, the Defendant testified that his apology was
in reference to an incident where he kicked his son’s door in because the child’s mother
would not let him in to see his son. The Defendant explained that he thought he would not
be able to see his son for a while because the officers had told him that he was not leaving,
but he later stated that the officers told him that he could leave if he wrote the letter. The
Defendant insisted that he never told the officers that he raped his son or that he downloaded
child pornography from the internet. He explained that he cried during the interview because
Inv. Evans “slammed a pen down on the desk and told me that I needed to tell him
everything. And, I took that as a threat because of the way my childhood used to be.” The
Defendant stated that he was not quite sure what Inv. Evans meant by “tell him everything.”
The Defendant testified that he was afraid to tell officers “who did the downloading” – his
brother, Christopher – because Christopher, who was supposed to be in “state’s custody,”
was on the run from “the law.” According to the Defendant, his brother had a “mean streak.”
The Defendant testified that the Nikon camera, which the photographs on the media card
were taken with, belonged to Christopher, explaining that he had given the camera to his
child’s mother who sold the camera to Christopher for extra money. The Defendant also
testified that he had left his son alone with his brother in the past because he was called in
to work to cover someone else’s shift.



                                             -5-
        The State offered the testimony of Detective Jason Joseph, employed with the
Harriman City Police Department, as a rebuttal witness. Det. Joseph explained that he
assisted in Det. Schneider’s investigation of this case and that he observed the Defendant’s
interview at ICAC Knoxville. Although he admitted that he did not remember every detail
of the interview, he recalled that the Defendant started crying when officers asked about the
photographs and that the Defendant admitted to assaulting A.C. Det. Joseph also stated that
he did not recall the Defendant exhibiting any concern for the well-being of the child. Det.
Joseph also testified that Det. Schneider does not require confessions to be written down, but
the opportunity was typically given, and that he did not recall their department recording
interviews in the past.

       The jury convicted the Defendant of all three counts. The trial court sentenced the
Defendant to serve forty years for the aggravated rape of a child conviction (Count 1), to be
served consecutive to Count 3; eight years for the especially aggravated sexual exploitation
of a minor conviction (Count 2), concurrent to Count 1; and four years for the sexual
exploitation of a minor conviction (Count 3); for a total effective sentence of forty-four years
in the Department of Correction.


                                            ANALYSIS

        The Defendant contends that (1) the State failed to present sufficient evidence to
identify him as the perpetrator and to prove penetration of the victim and (2) that the trial
court should have granted the Defendant’s motion for judgment of acquittal at the end of the
State’s case-in-chief because the State had not proven that the victim was three years of age
or less at the time of the offense, as required by statute.3 The State responds that the evidence
presented in its case-in-chief was sufficient to support the Defendant’s conviction because
it proved that the Defendant anally penetrated the victim and that he told officers that the
victim was two years old when the penetration occurred.




                 A. Trial Court’s Denial of Motion for Judgment of Acquittal

        Regarding this issue, the Defendant alleges that the trial court committed reversible


3
 The Defendant only challenges the sufficiency of the evidence regarding his aggravated rape of a child
conviction. As such, he has waived review of his convictions for especially aggravated exploitation of a
minor and aggravated exploitation of a minor for failure to raise them on appeal. See Tenn. R. App. P.
13(b).

                                                  -6-
error when it denied the Defendant’s motion for judgment of acquittal at the close of the
State’s proof because the evidence presented did not establish the age of the victim and,
therefore, was insufficient to sustain his conviction for aggravated rape of a child.

       Rule 29 of the Tennessee Rules of Criminal Procedure governs motions for judgments
of acquittal. It provides, in relevant part, as follows:

       On defendant’s motion or its own initiative, the court shall order the entry of
       judgment of acquittal of one or more offenses charged in the indictment,
       presentment, or information after the evidence on either side is closed if the
       evidence is insufficient to sustain a conviction of such offense or offenses.

Tenn. R. Crim. P. 29(b). This rule gives the trial court authority to direct a judgment of
acquittal, either at the close of the State’s proof or at the conclusion of all the evidence, when
the evidence is insufficient to support a conviction. See State v. Gilley, 297 S.W.3d 739, 762
(Tenn. Crim. App. 2008). In determining whether to grant a motion for judgment of
acquittal, “the trial court must favor the opponent of the motion with the strongest legitimate
view of the evidence, including all reasonable inferences, and discard any countervailing
evidence.” Id. (citing Hill v. State, 470 S.W.2d 853, 858 (1971)). The trial court applies the
same standard employed on appeal when analyzing the sufficiency of the evidence. Id.

        To restrict appellate review of the motion for acquittal to the evidence presented by
the State, once the motion is made, the defendant must stand on the motion and present no
other proof. See Gilley, 297 S.W.3d at 763; State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim.
App. 1998); State v. Johnson, 762 S.W.2d 110, 121 (Tenn. Crim. App. 1988); Mathis v.
State, 590 S.W.2d 449, 453 (Tenn. 1979). A motion for a judgment of acquittal made at the
conclusion of State’s proof is waived when the defendant elects to present evidence on his
own behalf. Id. This court may not return to the midpoint of the trial and then order the trial
court to direct a judgment of acquittal upon the basis of the record as it then existed. See
State v. Thompson, 549 S.W.2d 943, 945 (Tenn. 1977).

       In the instant case, the Defendant chose to present evidence after the trial court denied
his motion for judgment of acquittal. Therefore, our review of the sufficiency of the
evidence supporting his conviction for aggravated rape of a child will be based on the proof
presented at trial by the State as well as the Defendant. See Gilley, 297 S.W.3d at 763.


                                B. Sufficiency of the Evidence

       An appellate court’s standard of review when the defendant questions the sufficiency

                                               -7-
of the evidence on appeal 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). The court
does not reweigh the evidence; rather, it presumes that the jury has resolved all conflicts in
the testimony and drawn all reasonable inferences from the evidence in favor of the state. See
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and the
weight and value to be given to evidence were resolved by the jury. See State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997).

       A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies to findings of guilt
based upon direct evidence, circumstantial evidence, or a combination of [both] direct and
circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). The standard of proof is the same, whether the evidence is direct or circumstantial.
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the
convicting evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
The duty of this court “on appeal of a conviction is not to contemplate all plausible
inferences in the [d]efendant’s favor, but to draw all reasonable inferences from the evidence
in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).


                         1. Aggravated Rape of a Child Conviction

       The Defendant challenges the sufficiency of the evidence supporting his conviction
for aggravated rape of a child, specifically alleging that the State failed to prove that the
victim was three years old or less, that the Defendant was the perpetrator, and that the victim
was penetrated. The Defendant was convicted of aggravated rape of a child pursuant to
Tennessee Code Annotated section 39-13-531. That statute states as follows:

       (a) Aggravated rape of a child is the unlawful sexual penetration of a victim
       by the defendant or the defendant by a victim, if the victim is three (3) years
       of age or less.

       (b) Aggravated rape of a child is a Class A felony and shall be sentenced
       within Range III, as set forth in title 40, chapter 35.



                                              -8-
Id.

                                a. Proof of the Victim’s Age

        The Defendant contends that the State failed to prove the victim’s age, as required by
statute. However, as previously mentioned, we will examine this issue based on all the
evidence presented at trial because the Defendant elected to present evidence after the trial
court denied his motion for judgment of acquittal.

        After a thorough review of the record and applicable authorities, we conclude that the
evidence presented at trial proved that the victim was two years old at the time of the offense,
and thus, was sufficient to support the Defendant’s conviction for aggravated rape of a child.
During its case-in-chief, the State presented the testimony of Det. Schneider who stated that
during the interview with the Defendant, he showed the Defendant a picture which depicted
a man who appeared to be anally penetrating a child’s anus. According to Det. Schneider,
the Defendant admitted that the child in the photograph was his son, A.C., and that A.C. was
two years old when the picture was taken. On cross-examination, the Defendant also
admitted that A.C. was two years old when the photographs on the media card were taken.
The other pictures of A.C. from the media card support this conclusion. Thus, there was
sufficient evidence presented at trial for the jury to conclude that A.C. was under three years
of age, as required by statute, when the offense occurred. See id. The Defendant is not
entitled to relief on this sub-issue.

                      b. Proof that the Defendant was the Perpetrator

        The Defendant contends that there was insufficient evidence presented at trial to prove
that the Defendant was the man depicted in the “pen[ile] penetration” photograph used to
convict the Defendant of aggravated rape of a child; we disagree.

        As the State succinctly argues, although the officers could not independently verify
that the Defendant was the man pictured in the photograph, there was sufficient
circumstantial evidence presented at trial for the jury to conclude that the Defendant was the
man in the photograph. Inv. Evans, qualified as an expert in computer electronics and online
evidence collection and evaluation, testified that the media card on which the photograph was
found was located in the Defendant’s sleeping area underneath his mattress. Det. Schneider
testified that he identified only the Defendant and A.C. in the photographs on the media card
and that he had also determined by viewing the background of photograph that it was taken
in the camper where the Defendant resided. Det. Schneider and Inv. Evans both testified that
when the Defendant was asked about the “pen[ile] penetration” photograph, he identified
A.C. as the victim in the photograph and admitted to placing his penis on A.C’s buttocks.

                                              -9-
As such, the Defendant is not entitled to relief on this sub-issue.

                          c. Proof that the Victim was Penetrated

       Finally, the Defendant contends that the State failed to present sufficient evidence that
the victim was penetrated, explaining that the photograph does not show actual penetration
and that the Defendant denied confessing to officers that he assaulted his son.

       Tennessee Code Annotated section 39-13-501(7) defines sexual penetration as “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, but emission of semen is not required[.]” Id.
(emphasis added).

        Although, the Defendant argues that the photograph does not show penetration and
that he never told the officers that he penetrated the victim, penetration can be proven
circumstantially. State v. Brown, 749 S.W.2d 474, 476 (Tenn. Crim. App. 1987) (citing
Greene v. State, 358 S.W.2d 306 (Tenn. 1962); State v. Fears, 659 S.W.2d 370 (Tenn. Crim.
App. 1983)). According to Det. Schneider and Inv. Evans, the Defendant admitted to taking
“bath time” photographs of A.C. When confronted about the photograph of a man with his
penis on a boy’s naked buttocks, the sobbing Defendant said that he had taken A.C. to the
park that day and that A.C. had gotten dirty, so he went home and gave A.C. a bath. The
Defendant admitted to both Inv. Evans and Det. Schneider that he became excited at seeing
A.C. naked, and he rubbed his penis on A.C.’s “butt.” We conclude that the foregoing
circumstantial evidence and the image depicted in the photograph at issue support the jury’s
finding that there was sexual penetration of the victim. Therefore, the Defendant is not
entitled to relief on this sub-issue.


                                       CONCLUSION

       For the foregoing reasons, we affirm the judgments of the trial court.




                                                     _________________________________
                                                     D. KELLY THOMAS, JR., JUDGE




                                              -10-
