        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned On Briefs July 18, 2012

             STATE OF TENNESSEE v. DALLAS JAY STEWART

                  Appeal from the Circuit Court for Marshall County
                      No. 09-CR-86 Robert G. Crigler, Judge




                  No. M2011-01994-CCA-R3-CD - Filed July 22, 2013


The Defendant, Dallas Jay Stewart, was convicted by a Marshall County Circuit Court jury
of nine counts of rape of a child, Class A felonies; fourteen counts of aggravated sexual
battery, Class B felonies; and one count of exhibition of harmful material to a minor, a Class
A misdemeanor. See T.C.A. §§ 39-13-522; 39-13-504; 39-17-911 (2010). The trial court
sentenced him as a Range I offender to twenty-five-years’ confinement for each count of rape
of a child, twelve-years’ confinement for each count of aggravated sexual battery, and
eleven-months, twenty-nine-days’ confinement for exhibition of harmful material to a minor.
The counts against each victim were ordered to be served consecutively for an effective fifty-
year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to
sustain his convictions, (2) the trial court improperly denied his motion to suppress, (3) the
trial court erred in failing to merge some of his aggravated sexual battery convictions, and
(4) his sentence was excessive. We affirm the judgments of the trial court for exhibition of
harmful material (Count 1), five counts of aggravated sexual battery (Counts 10, 13, 23, 24,
and 25), and one count of rape of a child (Count 2). We vacate the aggravated sexual battery
judgment for Count 26 and dismiss the charge. Because the trial court failed to merge the
convictions for eight counts of aggravated sexual battery (Counts 4, 6, 8, 12, 15, 17, 19 and
21) and eight counts of rape of a child (Counts 3, 5, 7, 11, 14, 16, 18, and 20), we vacate the
convictions and order the trial court to enter judgments reflecting merger of these aggravated
sexual battery convictions into the rape of a child convictions.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.
Michael Jonothan Collins, Shelbyville, Tennessee, for the appellant, Dallas Jay Stewart.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Robert Carter, District Attorney General; and Weakley E. (Eddie) Barnard,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       This case relates to incidents involving two young girls. At the trial, Lewisburg Police
Department Patrol Officer Kevin Clark testified that he met with M.A. and her mother. He
said they came to the police station to discuss allegations against the Defendant. He said he
took a short statement from M.A., who was upset and crying. He said she did not want to
talk, which he said was normal in child sexual abuse cases. He said he informed Detective
Scott Braden of the allegations. He said M.A. and her mother were instructed to return
another day to talk to Detective Braden.

       On cross-examination, Officer Clark testified that although he had training as a
detective, he did not take a more detailed statement from M.A. on August 14 because she was
very upset and did not want to talk. He said that the interview was not recorded and that after
he spoke with M.A., he had her write and sign a statement. He identified the statement M.A.
wrote. On redirect examination, he said that M.A. and her mother were at the police station
about thirty minutes and that he talked to M.A. for about ten minutes, which included the
time M.A. wrote the statement. He said that based on his past experience as a detective, a
child or adult victim of sexual abuse did not reveal all of the relevant information in a first
interview. On recross-examination, he said he did not do anything to lead M.A. to believe
she should not tell him everything.

        Lewisburg Police Detective Scott Braden testified that on August 14, 2009, shortly
before 6:00 p.m., he received a call from Officer Clark about a sexual abuse allegation. He
stated that based upon Officer Clark’s information that M.A. was very upset and that another
possible victim was not in town, he decided to delay his investigation until the following
Monday.

       Detective Braden testified that on Monday morning, M.A., A.G., and their mothers
appeared at the police station. He said he interviewed M.A. and Detective James Johnson
interviewed A.G. and her mother. He said that in interviewing children, it was necessary to
build a rapport. He said children rarely disclosed all relevant information during the first
interview.




                                              -2-
       Detective Braden testified that he was with M.A. for about an hour. He said M.A.
appeared to be very embarrassed and was more willing to talk when her mother was not in
the room. He said he learned that M.A. was eleven years old in July 2009 and that A.G. was
nine. He said the Defendant turned twenty-seven in July 2009. He said the victims were
interviewed again on August 21, with him interviewing M.A. and Detective Johnson
interviewing A.G.

       Detective Braden testified that on August 17, 2009, he received information that
something was being burned in the Defendant’s backyard. He said he and Detective Johnson
went to the Defendant’s house because he was concerned the items being burned might be
relevant to the case. He said the Defendant’s mother, Debby Harris, answered the door. He
said she told them the Defendant was not home but would return soon. He said he and
Detective Johnson went to the backyard and saw a burn pile but said it was old and had cold
ashes. He said they left but returned about an hour later, around 2:00 p.m. This time, the
Defendant answered the door and let them inside. Detective Braden said he learned from the
investigation that the Defendant lived alone, although the Defendant’s mother was there. He
said he read the Defendant his Miranda rights and asked the Defendant to read them. He said
the Defendant stated he was studying law enforcement and had completed one and one-half
years of technical school. He identified the advice of rights form the Defendant initialed and
signed.

        Detective Braden testified about the Defendant’s statements: The Defendant said the
victims spent the night at his house twice. The Defendant stated that he came home on the
second occasion and found the victims playing strip poker on his bed and kissing. The
Defendant stated that M.A. was nude and A.G. wore only her underwear. The Defendant
stated he told the victims to stop and put on their clothes. The Defendant did not state where
the victims would have obtained the cards. The Defendant identified the dates the victims
stayed at his house as being near the end of July, which would have been July 22 and 29.
The Defendant told Detective Braden it did not look good that the victims were naked on his
bed and that he never told the victims’ parents. Regarding the condoms the victims told
Detective Braden about, the Defendant stated the victims might have taken them from his
nightstand and played with them. The Defendant did not acknowledge knowing anything
about the condoms. The Defendant told Detective Braden that the victims needed to be held
accountable for being naked on his bed and that they acted seductively and inappropriately.
The Defendant said M.A. had been wearing a “youth bra.” When asked if the victims had
seen the Defendant naked, the Defendant said A.G. walked in on him in the bathroom once.
The Defendant said he bought items at Walmart for the victims recently and that he bought
them numerous things previously. The Defendant stated that he met a girl on Craigslist,
Jesse, but that they were not intimately involved. The Defendant said his last sexual
relationship was a one-night stand fourteen or fifteen months earlier but could not provide

                                             -3-
a name or means to contact the woman or the friend at whose house they met. The
Defendant stated he had the condoms in order to masturbate. He said the Defendant’s mother
was outside when they asked the Defendant about his sexual relationships and the condoms.

        Detective Braden testified that they searched the house. He identified photographs
of the Defendant’s bed and nightstand. He said a photograph of a country music singer,
Gretchen Wilson, was in a frame on the nightstand. He identified other items in the
photographs of the bedroom, including a Bible, a shotgun, and a computer. Regarding the
computer, he said he knew of allegations the Defendant and the victims viewed pornography
on it. He said he also knew of the victims’ claims that a shotgun was in the bedroom. He
said it was behind the bedroom door and was not in a case. He said it would be visible when
the door was closed. He said an unopened two-pack of condoms was in the drawer of the
nightstand.

        Detective Braden testified that the time listed on the Defendant’s statement was 2:07
p.m. but that the time was written before the statement. He said that another officer brought
a camera to the Defendant’s house and that the prosecutor came to speak with the Defendant
after Detective Braden called the prosecutor. He said the Defendant continued to maintain
that he did not touch the victims and that the victims had been playing strip poker and acting
seductively.

        Detective Braden testified that a written statement was taken after the oral statement.
The officers wrote the identifying information but the Defendant wrote the body of it himself.
It provided an account consistent with the Defendant’s previous oral statement to the officers.
The Defendant also stated that when he told the victims to dress, M.A. complied but A.G.
“got an attitude” until he threatened to call her mother. He stated that the victims told him
not to tell their parents and that he promised he would not if they behaved the rest of the
night. He said that he cooked dinner for them, that they fell asleep in front of the television,
and that he went to bed. He said that previously, he caught the victims playing with dildos
and sex toys. He said that the next day, he bought A.G. an Easy Bake Oven and M.A. a
skateboard and that he bought them numerous things previously. He said he bought the oven
for A.G. as a birthday gift and the skateboard for M.A. because he did not want her to feel
excluded.

        Detective Braden testified that the Defendant agreed to come to the police department
the next day. He did not arrest the Defendant because the victims were safe, and he had more
investigating to do. He said the Defendant appeared voluntarily the next day. He said that
although the Defendant was at the police station for several hours, only about one hour and
thirty to forty-five minutes of interrogation was involved. He said the Defendant was advised
of his rights by Agent Smith, even though the Defendant was not in custody. He said he and

                                              -4-
Agent Smith first talked to the Defendant, then took a recorded statement, and finally took
a written statement.

       Regarding the verbal statement at the police station, Detective Braden testified that
the Defendant did not admit any wrongdoing before Agent Smith mentioned the two types
of offenders. He said the Defendant stated he knew that his actions were wrong, that it was
a mistake, and that he would have to answer for his actions. He said the Defendant claimed
to have acted on impulse and did not want to be this kind of person for the rest of his life.
He said the Defendant stated he might need to talk to his mother or a lawyer. Detective
Braden said that at this point, he stepped away from the door and the Defendant and that the
Defendant continued to talk. He said that the Defendant was not in custody and that Agent
Smith told the Defendant that he was free to leave and that anything he said was voluntary.
He said the Lewisburg Police Department was separate from the Marshall County Jail,
although the police department had locks on the outside of the doors to lock people out, not
inside. He said no locked door kept the Defendant from leaving. He said the Defendant
stayed and continued to talk, telling them it did not matter because the truth would be
revealed eventually because the girls would not hide it long. He said that the Defendant was
asked if he understood his rights and that he acknowledged he did. He said the Defendant
admitted for the first time that he touched the victims sexually. He said the Defendant
admitted he licked the victims’ genitalia and touched them with his finger.

       Detective Braden testified that at this point, he asked the Defendant to give a recorded
statement and that the Defendant agreed. Detective Braden said he reviewed the Defendant’s
Miranda waiver with him. Detective Braden said he told the Defendant to let him know if
there was anything the Defendant did not understand. He identified a CD that contained the
Defendant’s recorded statement.

        The Defendant’s recorded statement was played for the jury. In it, the Defendant
stated: He understood the rights Detective Braden read to him. The second incident occurred
the last Wednesday the victims came to his house after church. It was in late July. He said
they went to Dollar Tree and bought several toys, including the playing cards the victims
used to play strip poker. He stated that he had been outside and that when he went inside,
he found the victims unclothed playing strip poker. A.G. asked him, “What’s this?”referring
to a condom she had taken from the drawer of the bedside table. He told her it was a
condom. She asked him to wear it. He said no and that he would get in trouble. He told
them they needed to “quit doing this.” A.G. continued to insist that she wanted the
Defendant to wear the condom. She said that they would say the Defendant put on the
condom, whether or not he did. The Defendant decided to “go with the flow” and allowed
A.G. to put the condom on him. A.G. began “ejaculating” him as M.A. watched. A.G. had
M.A. stimulate him, too. He ejaculated. He removed the condom. A.G. said, “Lick my

                                              -5-
privates.” He knew it was a bad idea, but he licked A.G.’s genitalia for a few minutes. He
denied touching A.G.’s genitalia with his finger. M.A. asked him to lick her genitalia, and
he did for a few minutes. He said he touched M.A.’s clitoris with his index finger but did
not insert his finger into her vagina. A.G. placed another condom on him. He rubbed against
M.A.’s genitalia, as instructed by A.G. M.A. asked why he did not do the same to A.G., but
A.G. said she did not want the Defendant to do it to her because it might hurt. He put his
penis “a little bit” inside M.A.’s vaginal lips but did not penetrate her vagina. M.A. was
afraid of pain if he penetrated her vagina but she rubbed his penis up and down her genitalia.
He did not ejaculate. He did not insert his finger into either victim’s anus. A.G. began
looking at pornography on his computer, and M.A. dressed and joined her. The incident was
the last time the victims stayed with him, not the time before that. There were no other
victims. He did not buy things for the victims to ensure their silence. He bought things for
them before this incident. He did not tell the truth earlier because he was scared. He later
admitted that there was sexual contact on two dates. The first time, he licked the victims’
vaginas. The other things, including the condom use, happened the second time. The first
incident began when the victims accessed pornographic websites on his computer and asked
him questions about sexual activity. The victims told each other that each would let the
Defendant lick her genitalia if the other one would, too. A.G. begged and convinced him to
lick their vaginas. When A.G. threatened to tell on the second occasion, she was referring
to the previous activity. He did not force the victims to do anything. Regarding M.A., he did
the same things both times, except the first time he did not rub his penis on her genitalia. He
thought the two incidents were two to three weeks apart. He did not tell the truth the
previous day because he thought he probably would go to jail, would be listed as a sexual
offender for this rest of his life, would lose his job, and probably would lose his house.

       After the recording was played, Detective Braden read the written statement he took
from the Defendant. It provided: The first incident was on a Wednesday in July after
church. The victims used his computer to view pornography. They asked him questions
about cunnilingus and sperm. After the victims viewed pornography for about fifteen
minutes, A.G. asked him to perform cunnilingus on them. He refused several times, but A.G.
begged him until he agreed. He rubbed his finger on M.A.’s vaginal lips and licked her
private area. He licked her clitoris for four or five minutes. A.G. “poked” his penis because
the victims wanted to see it. Nothing else occurred on that date. The second incident was
a couple of weeks later, on a Wednesday after church. He took the victims to Dollar Tree.
A.G. selected playing cards, and he thought M.A. bought them. When they reached his
house, he did yard work while the victims went inside. When he went inside, he found the
victims naked and playing strip poker on his bed. A.G. was playing with condoms and said
she wanted to put one on the Defendant. A.G. said she would tell her mother if the
Defendant did not wear the condom. The Defendant undressed. He was aroused from seeing
the victims naked and “making out.” A.G. put the condom on his penis and started to

                                              -6-
“ejaculate” him with her hand. A.G. put her mouth and lips on the Defendant’s penis and
tried to get M.A. to lick his penis, but M.A. refused. He ejaculated, removed the condom,
and threw it away. A.G. put another condom on him and told him to rub it on M.A.’s vagina.
He rubbed his penis between M.A.’s vaginal lips. M.A. took his penis and rubbed it between
her vaginal lips and told A.G. to do the same, but A.G. refused. On both occasions, he
touched each victim’s clitoris and inside the vaginal lips with his finger.

        Detective Braden testified that the prosecutor was present when the statements were
taken on August 18 but that the Defendant was unaware of it. He said defense counsel
arrived at the end of the interview. Defense counsel was allowed to see the Defendant that
day. After defense counsel left, he arrested the Defendant. While they were going across the
street to the jail, the Defendant said that God did things for a reason but that he did not
understand why he had done what he did.

       On cross-examination, Detective Braden testified that he was not notified when
defense counsel arrived around 5:48 p.m. but acknowledged that someone else was. He said
the Defendant arrived at the police department around 11:00 a.m. He said that once Special
Agent Smith arrived, the Defendant was questioned off and on from around noon until the
statements were taken. He said the Defendant was allowed to take breaks and go into the
lobby and had “ample opportunity” to leave. He said the first part of the interview was not
recorded because the Defendant did not want it to be recorded. He did not know who called
the police department on August 17 and reported that the Defendant was burning pictures and
videotapes.

        On redirect examination, Detective Braden testified that Special Agent Smith was
present on August 18 to administer a polygraph test, but he arrived late. He said that the
process for the Defendant’s polygraph examination took “an hour or so” and that he was not
in the room. He said that Agent Smith’s setting up the equipment, reviewing questions with
the Defendant, allowing the Defendant breaks, and reviewing the results took time. He said
he began the verbal interview around 4:00 p.m. He said Agent Smith advised the Defendant
of the polygraph test results. He said the Defendant declined to have the polygraph
examination recorded. On recross-examination, he said he was not in the room during the
polygraph examination. He said, though, the questions pertained to the matters on trial.

        Lewisburg Police Detective James Johnson testified that on August 17, 2009, he
interviewed A.G. and her mother. He said it was not unusual to interview child sexual abuse
victims more than once in order to build a rapport and obtain additional information. He said
it was unusual for a juvenile female to open up to an adult male in a first interview. He said
he did not know A.G. before the interview.



                                             -7-
        Detective Johnson testified that he and Detective Braden went to the Defendant’s
house on August 18, 2009. He did not go inside the first time he was there and did not see
the Defendant. The second time, they saw the Defendant and went into the house. The
Defendant was read his rights. He identified photographs taken inside the Defendant’s
house. He said the Defendant gave verbal and written statements denying any sexual
misconduct. He thought taking the polygraph examination was the Defendant’s idea and said
the Defendant’s mother wanted the Defendant to take the polygraph examination. He said
that from the interviews with the victims, he knew that items of evidence for which they
should search in the Defendant’s house. He said the Defendant consented in writing to
searches of the house and the Defendant’s computer.

       Regarding the search, Detective Johnson testified that condoms were found in the
nightstand and that they searched for them in that location based upon the victims’
interviews. He said they looked for a handgun and found an unloaded one in the Defendant’s
truck. He did not recall whether a shotgun recovered from the house was loaded.

        On cross-examination, Detective Johnson testified that the handgun was not in the
residence, where they expected to find it. He agreed that the Defendant had a permit to carry
a handgun and that the handgun was not in the car illegally. He agreed the shotgun was not
illegally in the bedroom.

      Detective Johnson testified that he took statements from A.G. on August 17 and 21,
2009. He said he wrote the statements and identified them. A.G. wrote her name on the
August 17 statement. He acknowledged that the interviews of A.G. were not recorded.

       Tennessee Bureau of Investigation (TBI) Special Agent Michael Smith testified that
he was a polygraph examiner. He said he gave polygraph examinations to the Defendant on
August 18, 2009. He said he arrived at the Lewisburg Police Department around 11:00 a.m.
and set up his equipment. He met with the Defendant around noon and began the process.
He read the consent form to the Defendant, who signed it. He said the Defendant did not
want the polygraph examinations recorded, which Special Agent Smith noted on the consent
form. He read the Defendant’s Miranda rights to him, marked the form appropriately, and
had the Defendant read it back to him to ensure the Defendant could read, write, and
understand what was happening.

       Special Agent Smith testified that the pretest interview lasted about one hour or
perhaps a few minutes longer. He said that a person taking the test was informed of all the
questions that will be asked and that the person’s answers were reviewed. He said there was
a separate examination process regarding each of the two victims. Each examination
involved nine questions. He said the Defendant took two or three breaks in the process. He

                                             -8-
said the pretest interview concluded about 1:30 p.m., followed by a fifteen-minute break. He
said the “instrument portion” of the examination was given until about 2:45, when there was
another fifteen-minute break. He said the Defendant took a bathroom break and another
break to eat food the Defendant’s mother brought. He said the post-test interview began
around 3:00 p.m. with Detective Braden present. He said he advised the Defendant of the
test results. He said that after a few minutes of discussion, the Defendant decided he wanted
to give a truthful statement.

       On cross-examination, Special Agent Smith testified that the pretest interview
included screening to determine if the subject was “testable.” He said that occasionally, a
person was not testable. He said that his notes from the pretest interview stated that the
Defendant had a neurological disorder, Tourett Syndrome, that caused the Defendant to have
nervous twitches and shakes. He said that someone with this condition might or might not
be a suitable subject for a polygraph examination but that no problems occurred with the
Defendant’s examination. He said that if the Defendant had strong twitches during the test,
it would show on the polygraph charts but that it did not occur.

        Special Agent Smith testified that the Defendant stated that he was a situational
offender, knew what he did was wrong, acted on impulse, and had Tourett Syndrome. He
said the Defendant stated, “I think I might need to talk to my mama and a lawyer.” He said
that ten or fifteen seconds later, the Defendant said he would be accountable for his actions
and was ready to accept responsibility. The Defendant said that he did not want to be this
kind of person for the rest of his life and that he did not want to go to jail but that he had to
take responsibility. The Defendant stated that he wanted to apologize, that he “can’t control
it,” that he was not gay, and that he had a girlfriend previously. He thought the Defendant
was the first person with Tourett Syndrome to whom he had given a polygraph examination.

        On redirect examination, Special Agent Smith testified that when the Defendant said
the word lawyer, it caught his attention because he thought the Defendant was going to
“lawyer up.” He said he explained that the Defendant was there voluntarily and was free to
leave or to call his mother, lawyer, or anyone else. He said that within a few seconds, the
Defendant began making admissions and eventually confessed fully. On recross-
examination, he acknowledged that the Defendant’s cell phone was turned off for the
polygraph examination. He did not recall whether he or the Defendant put it on top of a
filing cabinet.

       M.A.’s mother testified that M.A. was eleven in July 2009. She said that on August
14, 2009 after 5:00 p.m., she took M.A. to the police department because M.A. said she had
been molested. She said she first learned of it in a telephone conversation with A.G.’s
mother shortly before 5:00 that afternoon. She said that she questioned M.A. after the

                                               -9-
telephone call, that M.A. did not say anything, that she told M.A. she already knew about it
because A.G. had revealed it, and that M.A. cried and “started talking.” She said M.A.
provided details as they waited in the lobby of the police department for about thirty minutes.
She said M.A. was upset that night and only said “a little bit” to the police officer. She said
M.A. was shaking and crying and had not been that way earlier.

       M.A.’s mother testified that she had known A.G.’s mother for about a year. She said
her boyfriend was A.G.’s mother’s boyfriend’s roommate. M.A.’s mother said she was
employed as a housekeeper at an apartment complex in Brentwood where A.G.’s mother was
the assistant property manager. She said she had been employed for about four months in
August 2009. She said A.G.’s mother’s boyfriend worked there before she did. She said the
Defendant was the painter for the complex. She had known the Defendant for about a year,
knew which church he attended, and had visited his home. She said she and the Defendant
took turns driving to work together. She said that she had two children who were older than
M.A. and two who were younger.

       M.A.’s mother testified that her children attended the same church as the Defendant
and that the Defendant knew them. She said she and M.A. visited socially inside the
Defendant’s home at least twenty to thirty times. She said her relationship with the
Defendant was platonic. She said that almost a year before July 2009, the Defendant went
with her children, her boyfriend, and her on a shared-expense vacation to Gatlinburg. She
said they took a second vacation together to Myrtle Beach in the period between the alleged
offenses on July 22 and 29, 2009, and August 14, when she took A.G. to the police station.
She said that M.A. rode in the car with the Defendant and the Defendant’s brother and that
everyone stayed in one hotel suite.

       M.A.’s mother testified that she made arrangements to return to the police station on
August 17, 2009. She asked her boyfriend to come, and she notified A.G.’s mother that the
police wanted A.G.’s mother and A.G. to attend. She said M.A. and A.G. were not together
to discuss the case between July 29 and August 17.

       When asked why she allowed her eleven-year-old daughter to stay overnight with the
Defendant, who lived alone, she said, “We were friends. He spent the night at our house.
He had been to all of our children’s birthday parties, and we were friends.” She said she
trusted the Defendant and thought he would take care of M.A. She said M.A. led her to
believe A.G.’s mother had already given A.G. permission to stay overnight with the
Defendant if M.A. stayed also. She said that she had since spoken with A.G.’s mother and
learned they were deceived.




                                             -10-
        M.A.’s mother testified that on July 22, 2009, M.A. called her from church using the
Defendant’s cell phone and asked to spend the night with him. She told the victim to come
home to do her chores first, that the Defendant brought the victim home to do the chores, and
that the Defendant and the victim left soon thereafter. She said she called to make sure M.A.
was okay and spoke with the Defendant. She thought she saw the Defendant around 6:00
a.m. the next morning, when he drove them to work. She said A.G. went to work with them.

        M.A.’s mother testified that M.A. did not say anything about the July 22 incident
before July 29. She said that on July 29, M.A. called from church and asked if she could
spend the night with the Defendant. She was led to believe A.G. already had permission to
stay overnight with the Defendant. She thought the Defendant told her that A.G.’s mother
and A.G.’s mother’s boyfriend would be there. She told M.A. to come home to do her chores
first. She said that the Defendant brought M.A. home, that A.G. was with them, and that they
left a short time later. She said that the next day, the Defendant called and said he was sick
and she drove herself to work. She said the Defendant told her he was going to take M.A.
and A.G. to Walmart. She said she later saw M.A. with a skateboard that she had not
purchased.

        On cross-examination, M.A.’s mother testified that she did not have any suspicions
before August 2009. She said that between July 22 and 29, M.A. was really quiet, which was
different from her ususal outgoing personality. She said M.A. denied that something was
wrong. She said, though, that M.A. was not emotional and did not act out. She said M.A.
usually was friendly to the Defendant but was not during this time period, although M.A. did
not act afraid of the Defendant. She said M.A. never indicated she did not want to be around
the Defendant before August 14. She said that when they traveled to Myrtle Beach after the
two incidents, M.A. rode in the Defendant’s truck for some period of time at the request of
the Defendant’s younger brother and never indicated a desire during stops to ride in the other
car.

       M.A.’s mother testified that when M.A. called on July 29, M.A. sounded like she did
not really want to stay at the Defendant’s house. She said M.A.’s reluctance was the reason
she had M.A. come home first. She said that when M.A. came home, M.A. did not do
anything to indicate she did not want to go. She said she asked M.A. if she thanked the
Defendant for the skateboard. She said she asked the Defendant why he bought it and “he
said he just did.” She said the Defendant bought other gifts for M.A. during the time they
had known him. She said that although M.A. had been alone with the Defendant on
occasions such as going to a grocery store, July 22 and 29 were the only overnight stays. She
estimated she entrusted the Defendant with M.A.’s care five or six times in the year before
July 2009. On redirect examination, M.A.’s mother said the five or six times were short
periods of ten to fifteen minutes.

                                             -11-
       Thirteen-year-old M.A. testified that she was eleven in July 2009. She said that on
July 22, she went to church with the leader of a youth group. She said the Defendant was
present and played guitar with her brother. She said A.G. approached her and asked if she
wanted to spend the night at the Defendant’s house. She said the Defendant told her she had
to ask her mother. She had never spent the night at the Defendant’s house. Using the
Defendant’s cell phone, she called her mother, who told her she must come home to do her
chores before going to the Defendant’s house. She said the Defendant took her home, where
she got some clothes and did her chores. She said that after they left her house, the
Defendant took A.G. and her to Dollar Tree, where he bought a small skateboard for her, a
puzzle for A.G., and a deck of playing cards.

       M.A. testified that they went to the Defendant’s house and opened their toys. She said
the Defendant went to his bedroom, called them into the room, and closed the door. She said
he told them he wanted to show them a game called strip poker. She said she did not know
about the game previously. She said the Defendant told them they must remove an article
of clothing every time they lost. She said she and A.G. lost and were nude and that the
Defendant still wore his shirt but not his pants or underwear. She said she was mad, threw
the cards on the floor, and went into the living room.

       M.A. testified that the Defendant called them back into the bedroom, said he was
going to show them something on the computer, and told them to undress. She said that they
told him they did not want to undress but that he told them to do it anyway. She said she left
the room and did not look at the computer. She said she prepared chicken nuggets, which
she burned but A.G. ate.

        M.A. testified that the Defendant called them into the bedroom a third time. She said
he told them to undress, they told him they did not want to, and he told them to do it anyway.
She said the door was closed and she saw a long gun behind the door and a handgun on the
nightstand. She said the Defendant did not threaten her with a gun. She said that after they
were nude, the Defendant told them to get on the bed. She said the Defendant licked her
“pee pee.” She said he also “put his thing in mine.” She said he told them what a condom
was, that she had not known, and that he took one from his dresser drawer and wore it. She
said that when the Defendant penetrated her with his penis, he put her legs on his shoulders
while she lay on the bed. She said he penetrated her but did not insert all of his penis into
her vagina. She said she knew he penetrated her because she felt it. She said he touched her
on her “butt.” She said he penetrated her vagina with his finger. She said that afterwards,
she dressed and ran into the living room, where she slept on the couch. She said A.G. was
in the room during the incident but did not recall if the Defendant did anything to A.G. She
said that when they left, the Defendant told them not to tell their mothers. She said she did
not tell anyone because she was scared.

                                             -12-
        M.A. testified that on July 29, 2009, she went to church with the youth group leader.
She said the Defendant and A.G. were present. She said that after church, A.G. asked her
if she wanted to go to the Defendant’s house again. She said that the Defendant told her she
must call her mother and that when she did so, her mother said she must come home first.
She said the Defendant took her home, where she completed a chore and got clothes, and
then went to his house. She said that they ate and that the Defendant called them into his
bedroom and closed the door. She saw the guns behind the door and on the nightstand. The
Defendant told them to undress, but she did not want to undress. She said that after they
undressed, he told them to get on the bed. She said the Defendant licked her “pee pee” and
that she felt his tongue penetrate her vagina. She said he penetrated her vagina with his
fingers. She said he also touched her chest and her “butt” with his hand. She said he kissed
her chest. She said the Defendant did not penetrate her with his penis. She did not recall if
he wore a condom but said he masturbated until he ejaculated onto her foot. She said that
she dressed and that she and A.G. went into the “music room” and locked the door. She said
that the Defendant did not bother them again that night and that when he took them home the
next day, he told them not to tell their mothers. She said that before he took them home, they
went to Walmart, where the Defendant bought her a skateboard and A.G. an Easy Bake
Oven. She said she did not tell her mother that morning because her mother had to leave for
work.

        M.A. testified that she did not say anything until her mother questioned her after A.G.
revealed the sexual contact. She said her mother took her to the police station, where she
talked to two officers. She identified photographs of the Defendant’s bedroom that depicted
the guns, bed, computer, and nightstand.

       On cross-examination, M.A. testified that she had been to the Defendant’s house
several times and had seen the guns before July 22, 2009. She said he never picked up or
pointed the guns at A.G. or her on July 22 or 29. She acknowledged her written statement
from the first police interview did not include the details of her testimony. She said she was
scared at the first police interview but did not know of whom she was scared. She agreed she
would not call her mother and ask to return to the house of someone who scared her. She
said she rode to Myrtle Beach with the Defendant at the Defendant’s brother’s request. She
disagreed that she would not want to take a long car ride with someone who scared her.
Regarding her second police interview, she acknowledged saying that before the first
incident, she and A.G. played on the Defendant’s computer in his bedroom while he folded
clothes. She said her testimony that she did not look at the computer that day was accurate
and that she told the police they were on the computer because A.G. used it.

        When asked about her statement that the Defendant next put her legs on his shoulders
and tried to penetrate her vagina with his penis, M.A. testified that her testimony that he put

                                             -13-
his fingers in her vagina was accurate. She said she was not having a hard time
remembering. She said that when he touched her “butt,” he did not penetrate her anus. She
agreed she did not see the Defendant do anything to A.G. on July 22 and did not know why
she told the police otherwise. She said that when she talked to the police, she thought she
was in trouble. She did not know if she wanted to make her mother and the police happy
with what she told them. She could not give another reason why she would have signed the
statements. She did not know why she did not tell the police about the Defendant’s kissing
her chest. She said she was not rushed to read the statement before she signed it and said
there was not a reason she did not tell Detective Braden or her mother about the parts that
were not true. She agreed she did not see what happened between A.G. and the Defendant
on July 29 and did not know if she told the police she did.

        On redirect examination, M.A. testified that she was crying, upset, and scared the first
time she talked to the police. She said she was at the police department for a short time. She
agreed she told the police the Defendant kissed her “all over” and kissed her “pee pee.” She
agreed that she wrote the first statement, which was three lines, and that an officer wrote the
second one, which was longer. She said her testimony was true and agreed that some of the
facts about which she testified were not in the statement. She said she did not see or talk to
A.G. between giving the first statement on August 14, 2009, and the second on August 17,
2009. She said they were not interviewed together on August 17. She said A.G. was next
to her on the bed during both incidents. On recross-examination, M.A. acknowledged that
no one told her she could not have as much time as she wanted or that she could only write
three lines on August 14.

        A.G.’s mother testified that she was employed in July 2009 as the assistant manager
of the apartment complex where she and A.G. lived in Brentwood. A.G. was nine years old
at the time. She said that she had known M.A.’s mother for about six months. She said
M.A.’s mother had been the housekeeper at the apartment complex for about two months.
A.G.’s mother said her boyfriend, Richie, worked at the apartment complex performing
maintenance. She said she had known the Defendant for about six months and that he had
been employed as a painter at the complex for three or four months. She said that until about
a month before that July, Richie and the Defendant were roommates. She said she and A.G.
had been to the Defendant’s house several times, but she did not recall A.G.’s going
anywhere with the Defendant before July 22.

       A.G.’s mother testified that on July 22 and 29, 2009, A.G. asked if she could go to
church in Lewisburg with the Defendant and M.A. She said she gave her permission. She
talked to the Defendant, who said he was going to take M.A.’s mother home from work and
take the girls to church. She said she did not talk to M.A.’s mother before M.A.’s mother left
Brentwood that day. She said A.G. did not have school the next day and that A.G. came

                                              -14-
home when the Defendant reported for work around 7:30 a.m. She said A.G. did not mention
anything about the incident after coming home that day.

       A.G.’s mother testified that on July 29, 2009, the Defendant asked if A.G. could go
to church with M.A. and him. She said A.G. stated she wanted to go. She said that although
she told the Defendant she wanted to speak with M.A.’s mother first, she was unable to do
so before M.A.’s mother left the complex. She said she wanted to talk to M.A.’s mother “to
make sure it was okay that [A.G.] spent the night there again.” She said that on July 29, the
Defendant led her to believe A.G. would spend the night at M.A.’s house. She said she went
outside and saw the Defendant, M.A.’s mother, and A.G. leaving in the Defendant’s truck.
She said she next saw A.G. the following morning. She learned sometime later that A.G.
actually spent the night at the Defendant’s house and thought the date was August 13. She
said she talked to M.A.’s mother a few days after learning of this. She said that to her
knowledge, A.G. and M.A. did not see or talk to each other between July 29 and the day the
matter was reported to the police.

       On cross-examination, A.G.’s mother denied that the incidents involving the
Defendant came to light after A.G. was caught “abusing” another child. She denied telling
a hospital employee otherwise and said that if a medical report stated this, it was wrong. She
said she may have told hospital staff the dates of the incidents involving the Defendant were
July 29 and August 12. She said that when A.G. first told her about the sexual contact, A.G.
said something happened with the Defendant on August 12.

        When asked why she did not call M.A.’s mother on July 29 after she saw A.G., M.A.’s
mother, and the Defendant drive away, A.G.’s mother said she “guessed” it was not that
important to her to speak with M.A.’s mother. She said she assumed it was okay for A.G.
to spend the night with M.A. when she saw them drive away. She said that when she asked
A.G. about going to Lewisburg on July 29, she asked if A.G. wanted to go to church and
spend the night with M.A. but did not know M.A. would spend the night at the Defendant’s
house. She said she did not learn where the victims spent the night for a few days. She said
that after July 29, A.G. was around the Defendant and did not appear afraid of him or as if
she were trying to avoid him. She did not recall what she told the hospital staff but said it
would have been as a result of what A.G. told her.

       On redirect examination, A.G.’s mother testified that A.G. was afraid that telling
A.G.’s mother about the incidents would make A.G.’s mother mad. She did not recall if she
fussed at A.G. She said the incidents were discovered after she received a report about
another child having inserted a toy into a neighbor child’s private area. She denied telling
Our Kids Clinic personnel that A.G. inserted a toy into a child’s private area and said she told
them another child did it. She said A.G. was never caught doing this and that Our Kids

                                              -15-
Clinic’s records were mistaken. She agreed that A.G. had trouble talking to the police in her
presence on August 17 and that she had to leave the room.

       A.G.’s mother testified that the Defendant stayed overnight at her apartment on
August 12, 2009, and that A.G. made an allegation about that night when she reported it to
Williamson County authorities. As far as she knew, the case was under investigation. On
recross-examination, she said the Defendant had not been arrested or charged in Williamson
County and agreed it had been over one and one-half years since that incident.

        A.G. testified that she was nine in July 2009. She said that on July 22, 2009, she went
to church with M.A. and the Defendant. She said that after church, they went to Dollar Tree,
where the Defendant bought some skateboards for M.A., a puzzle for her, and playing cards
for himself. She said that at the Defendant’s request, she asked M.A. to spend the night with
her at the Defendant’s house.

       A.G. testified that when they arrived at the Defendant’s home, she and M.A. played
with their new toys. The Defendant brought his musical instruments inside and called A.G.
and M.A. into his bedroom. She said that he taught them to play strip poker and that she had
not been familiar with the game. She said that she lost the game and wore only her panties,
that M.A. wore her panties and bra, and that the Defendant wore a shirt with no clothing
below his waist. She said M.A. was angry and threw the cards on the floor. She said she and
M.A. went into the Defendant’s bathroom, dressed, and left the bedroom. She said the
Defendant called them back into the bedroom and told them to undress. She said the
Defendant showed them three videos on his computer: two depicting a boy and a girl having
“ordinary sex” and one depicting two girls “using sex toys.” She said she knew what the
“sex toys” were because the Defendant told her. She said she had never seen anything of that
nature. She said M.A. was in the room but was not paying attention.

        A.G. testified that the Defendant called them into his room. She said that he told them
to undress, that they said they did not want to, and that he told them to do it anyway. She
said that he told them to lie on the bed, that they complied, and that he began touching her
“pee pee” with his hand. She said he penetrated her “a little.” She said he also touched and
penetrated her “pee pee” with his tongue. She said the Defendant was nude. She said that
she had not known about condoms but that the Defendant explained them and put one on his
“weenie.” She said that the Defendant told her to suck his private part and that she complied
by putting his penis in her mouth. She said the Defendant had a shotgun behind the bedroom
door and another gun on his night stand but that he did not handle them in her presence or
threaten her with them. She said the Defendant touched and licked M.A.’s private part in her
presence and that he tried to penetrate M.A.’s private part with his penis. She did not recall
if the Defendant touched M.A. anywhere else. She said M.A. made chicken nuggets for them

                                             -16-
after the incident, that they were burned, and that she ate some of them anyway. She said that
they went to bed in “Richie’s old room” and that the Defendant kept bothering them until
they locked the door to keep him out. She said the Defendant took them home the next day.
She said he told them not to tell anyone, especially their parents, about the incident.

       A.G. testified that on July 29, 2009, the Defendant took her to church. M.A. was at
church also. She said that she was supposed to spend the night at M.A.’s house but that the
Defendant asked M.A.’s mother if they could spend the night at his house. She said that they
went to the Defendant’s house, that he called them into the bedroom, and that he told them
to undress and get on the bed. She said they complied. She said the Defendant touched her
private part with his hand and licked it. She said he penetrated her vagina with his finger and
tongue. She said that he told her to suck his penis and that she complied. She said that the
Defendant showed her on July 22 how to put a condom on his penis and that she put a
condom on him on July 29. She said the Defendant made her rub his penis with her hand.
She said the Defendant masturbated himself and ejaculated on M.A.’s chest. She said she
and M.A. dressed and watched television in the living room. She said the Defendant did not
speak to them for the rest of the evening. She said that the next morning, the Defendant took
them to Walmart and bought M.A. a skateboard and her an Easy Bake Oven and a Brat doll.
She said the Defendant took them home and told them not to tell their parents. She said that
she eventually told her mother and that she was scared and embarrassed.

       On cross-examination, A.G. testified that the first person she told about the incidents
was her mother and that she told her mother shortly after her birthday on August 12. She said
she was interviewed by Charlsi Legendre the next day. She agreed she told Ms. Legendre
that she used to spend the night at the Defendant’s house with Richie’s children and that the
Defendant touched her while she was sleeping at her house. She agreed she told Ms.
Legendre nothing happened at the Defendant’s house. She said she lied to Ms. Legendre
about the Defendant touching her in her sleep because she was embarrassed. She said the
Defendant’s actions hurt her feelings. She said she did not say no when the Defendant asked
her to go to church and to his house on July 29 because she thought he could hurt her with
his guns. She said she first saw the guns on July 22. She said he never touched or talked
about the guns. She said he did not make any threats about what he would do if she told her
mother about the incidents. She acknowledged that the Defendant did not touch her breasts.

        A.G. testified that although she signed statements to the police, she did not read them
first. She said she did not write any statements herself. She said she was examined at a
hospital by a nurse but did not remember if she told the nurse the truth. She denied telling
a detective that the first incident occurred in the Defendant’s living room. She said she did
not know what the “white stuff” was that came from the Defendant’s penis until the



                                             -17-
Defendant told her it was sperm. She said she told Detective Johnson about the Defendant’s
telling her on July 29 to put her mouth on his penis.

        Martha Lampley testified for the Defendant that she was a records custodian for
Nashville General Hospital. She identified hospital records for M.A. and A.G., which were
received as exhibits. On cross-examination, Ms. Lampley said the hospital was the record
keeper for Our Kids Clinic but agreed the clinic was at a different location. The records
reflect that upon examination of the victims, the occurrence of sexual contact could neither
be confirmed nor eliminated.

        Detective James Johnson was recalled and testified that when he interviewed A.G. on
August 17, 2009, he wrote a statement regarding her allegations. When asked about the
statement, which was received as an exhibit, he said A.G. told him that the second incident
occurred two weeks after the first and that the second was on the last Wednesday in August.
He stated that A.G. said the Defendant told M.A. and her to go into the living room, that she
sat on the couch, that M.A. sat on the chair, and that he told her to take off her clothes in the
living room.

       Detective Johnson testified that when he interviewed A.G. on August 21, 2009, he
wrote a statement about her allegations. He said the statement did not include a claim that
the Defendant placed his penis in or near A.G.’s mouth. He said he asked A.G. to read and
sign the statements to verify their accuracy. He said she appeared to read them and signed
them.

       On cross-examination, Detective Johnson acknowledged that he did not know whether
A.G. read the statements. He agreed that the statement said the date of the second incident
was August 29, 2009, but that the statement was created before that date, on August 17,
2009. He agreed the statement was mistaken and that the date of the second incident should
have been identified as July 29, 2009. He said the statement taken on August 21, 2009, did
not contain any allegations about an incident on July 22, 2009.

       The jury convicted the Defendant of nine counts of rape of a child, fourteen counts
of aggravated sexual battery, and one count of exhibition of harmful material to a minor.
After the court imposed the effective fifty-year sentence, this appeal followed.

                                                I

      The Defendant contends that the evidence is insufficient to sustain his convictions.
The State counters that the evidence is sufficient. We conclude that the evidence is



                                              -18-
insufficient to support the aggravated sexual battery conviction for Count 26 but that the
evidence is sufficient to support the other convictions.

       Our standard of review when the sufficiency of the evidence is questioned 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). We do not reweigh the evidence but
presume that the trier of fact 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 about witness credibility are resolved by the jury. See State v. Bland, 958 S .W.2d
651, 659 (Tenn. 1997).

       Count 1 charged the Defendant with exhibiting harmful material to A.G. on an
unspecified day in July 2009. “Harmful material” includes an image of the human body
depicting nudity or sexual conduct. T.C.A. § 39-17-911(a)(1) (2010).

        Pertinent to this appeal, “[r]ape of a child is the unlawful sexual penetration of a
victim by the defendant or the defendant by a victim, if the victim is more than three (3) years
of age but less than thirteen (13) years of age.” T.C.A. § 39-13-522(a) (2010) (amended
2011). “‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person’s body or of any
object into the genital or anal openings of the victim’s, the defendant’s, or any other person’s
body, but emission of semen is not required.” Id.§ 39-13-501(7) (2010).

       The Defendant was convicted of nine counts of rape of a child:

       Count 2:       Fellatio involving A.G. on July 22, 2009;
       Count 3:       Cunnilingus involving A.G. on July 22, 2009;
       Count 5:       Cunnilingus involving M.A. on July 22, 2009;
       Count 7:       Digital penetration of M.A. on July 22, 2009;
       Count 11:      Penile penetration of M.A. on July 22, 2009;
       Count 14:      Digital penetration of A.G. on July 29, 2009;
       Count 16:      Cunnilingus involving A.G. on July 29, 2009;
       Count 18:      Cunnilingus involving M.A. on July 29, 2009;
       Count 20:      Digital penetration of M.A. on July 29, 2009.

       Pertinent to this case, “[a]ggravated sexual battery is unlawful sexual contact with a
victim by the defendant or the defendant by a victim . . . less than thirteen (13) years of age.”
T.C.A. § 39-13-504(a)(4) (2010). “‘Sexual contact’ includes the intentional touching of the

                                              -19-
victim’s, the defendant’s, or any other person’s intimate parts, or the intentional touching of
the clothing covering the immediate area of the victim’s, the defendant’s, or any other
person’s intimate parts, if that intentional touching can be reasonably construed as being for
the purpose of sexual arousal or gratification[.]” Id. § 30-13-501(6).

       The Defendant was convicted of fourteen counts of aggravated sexual battery:
       Count 4:    Touching A.G.’s genital area with his mouth and/or tongue on July 22,
                   2009
       Count 6:    Touching M.A.’s genital area with his mouth and/or tongue on July 22,
                   2009;
       Count 8:    Touching M.A.’s genital area with his hand and/or finger on July 22,
                   2009;
       Count 10:   Touching M.A.’s buttocks with his hand and/or finger on July 22, 2009;
       Count 12:   Touching M.A.’s genital area with his penis on July 22, 2009;
       Count 13:   A.G.’s touching the Defendant’s penis with her hand on July 29, 2009;
       Count 15:   Touching A.G.’s genital area with his hand and/or finger on July 29,
                   2009;
       Count 17:   Touching A.G.’s genital area with his mouth and/or tongue on July 29,
                   2009;
       Count 19:   Touching M.A.’s genital area with his mouth and/or tongue on July 29,
                   2009;
       Count 21:   Touching M.A.’s genital area with his hand and/or finger on July 29,
                   2009;
       Count 23:   Touching M.A.’s buttocks with his hand and/or finger on July 29, 2009;
       Count 24:   Touching M.A.’s breast with his mouth on July 29, 2009;
       Count 25:   Touching M.A.’s breast with his hand and/or finger on July 29, 2009;
       Count 26:   Touching M.A.’s buttocks with his mouth and/or tongue on July 29,
                   2009.

       The Defendant argues that the evidence is insufficient because the only admissible
proof was the victims’ testimony. He argues that his statements cannot be considered
because they were obtained illegally, which we reject in Section II of this opinion. He notes
the absence of conclusive medical proof of sexual assault and the lack of DNA evidence. He
also argues that it is unlikely the victims would have gone back to the Defendant’s house on
July 29 if sexual assaults occurred on July 22. He does not argue that the State failed to offer
any proof regarding specific counts of the indictment.

      We have considered each count and its respective evidence. Viewed in the light most
favorable to the State, the evidence is sufficient to support all the convictions except Count
26. Regarding Count 26, M.A. said in a written statement that on July 29, the Defendant

                                              -20-
kissed her “all over.” She testified, however, that the Defendant did not touch her with his
tongue anywhere except her private part on July 29. She also testified that the only place he
kissed her on that date was her breast area. The evidence is insufficient to support the
conviction for Count 26, and the judgment for that count is vacated and the charge is
dismissed. Otherwise, the Defendant is not entitled to relief on the basis of insufficient
evidence.

                                               II

        The Defendant contends that the trial court improperly denied his motion to suppress
his pretrial statements. The State contends that the trial court properly denied the motion
because the Defendant did not make an unequivocal request for an attorney. We conclude
that the trial court did not err in denying the motion to suppress.

       The trial court conducted a lengthy hearing on the Defendant’s motion to suppress,
at which Lewisburg Police Detective Scott Braden testified that he participated in the
investigation of the Defendant in the summer of 2009. He said that he interviewed the
Defendant at the Defendant’s house on August 17, 2009, and that Detective Johnson was
with him. He said a third officer and Assistant District Attorney General Eddie Barnard
arrived at the house later. He said that he was at the Defendant’s house for approximately
three and one-half to four hours, that about one and one-half hour of that time was spent
interviewing the Defendant, and that they conducted a search of the Defendant’s residence
for the remainder of the time. He said that during the interview, the Defendant and his
mother made multiple requests for the Defendant to take a polygraph and that a polygraph
was scheduled for 10:30 or 11:00 the next morning, August 18, at the police station. He said
that neither the Defendant nor his mother asked how long the Defendant would be at the
police station for the polygraph and that they did not discuss whether the Defendant should
come to the police station alone. He said that the Defendant arrived at the police station on
August 18 between 10:30 and 11:00 a.m.

        Detective Braden testified that the police station was located beside the city courtroom
and that the building was divided into public and secured areas. He said that the lobby and
the clerks’ area were public areas and that a code must be entered or someone must “buzz”
a visitor to enter the secured areas. He clarified that the doors were only secured for entry
to the offices and interview room and that they were not locked from the inside. He said that
behind the public area, there were detectives’ offices, a garage, a locker room for patrol
officers, an evidence locker, and an interview room. He said that the interview room was
down the hallway from one of the doors into the secured area and that the room had a
one-way window. He said that interview room had one door and that the interview room
door did not have a lock but was closed during the Defendant’s interview. He said that there

                                              -21-
was no video recording of the Defendant’s interview through the one-way window and that
the police department’s video camera was used to record crime scenes. He said the room on
the other side of the window was Detective Johnson’s and Detective McClain’s office. He
said no recording devices were in the interview room. He said that the police department had
audio recorders, that one was in his office on the day of the Defendant’s interview, and that
a digital audio recorder was used near the end of the interview. He said that the lobby had
a table, a chair, and a telephone to contact people in the back.

        Detective Braden testified that he was at the police station on August 18, 2009, and
that he went to the lobby around 10:45 a.m. and saw the Defendant. Detective Braden said
he was dressed in “plain clothes” and had his badge and his firearm. He said he spoke to the
Defendant for two to three minutes, advised him where the restroom, water, and waiting area
were, told the Defendant that he would return shortly, and informed him they were setting
up and waiting for Agent Smith to arrive. He said that when he spoke to the Defendant, he
thought Agent Smith would arrive around 11:00 a.m. but that around 11:00, he learned that
Agent Smith would not arrive until around noon. He thought that another detective told the
Defendant about the delay and that the Defendant never asked about rescheduling.

       Detective Braden testified that TBI Special Agent Mike Smith, a polygraph examiner,
arrived around noon and that the Defendant was taken to the interview room after Agent
Smith set up the polygraph equipment. He said that he took the Defendant through the
second secured door, not the door down the hall from the interview room, because the
Defendant was closer to the second door. He said that he searched the Defendant before
taking him into the secured area and that the Defendant could have observed him enter the
code into the door’s keypad. He said that he thought the Defendant turned off his cell phone
and put it into his pocket. He said that if the Defendant had gone into the interview room
with the phone, it would have been taken when the Defendant was taken into custody
between 5:30 and 6:00 p.m.

        Detective Braden testified that he was in the room with Agent Smith and the
Defendant during the completion of the rights waiver and the polygraph consent forms but
that after the forms were complete, Agent Smith and the Defendant were alone in the room.
He said the Defendant indicated on the form that he did not want the polygraph recorded.
He said he did not know how documentation was produced from the polygraph because
Agent Smith did it. He said that there was no recording equipment set up when Agent Smith
reviewed the consent form for the polygraph with the Defendant. He said that there was no
discussion about recording the polygraph, that the Defendant was not told how long it would
take to set up the recording equipment, and that the Defendant indicated “no” on the form
when asked if he wanted the examination recorded. He said that the form was signed at
12:11 p.m. but that he was unsure how much later the examination began because he left the

                                            -22-
interview room after the forms were completed and did not return until 3:15 or 3:30 p.m.     He
said that he did not return to the room until the post-test interview but that he observed   the
examination through the one-way window, though he could not hear well because                the
speakers were not working. He said the Defendant left the room two or three times            for
breaks, walking alone to the lobby more than once. He said no one accompanied                the
Defendant to the restroom in the lobby.

        Detective Braden testified that when he returned to the interview room, Agent Smith
revieved the polygraph results with the Defendant. He stated that Agent Smith told the
Defendant that the polygraph indicated deception and that Agent Smith explained the
difference between situational and preferential sexual offenders. The Defendant said he was
a situational offender. The Defendant said that he knew what he did was wrong, that he
made a mistake, that he would have to answer for the things he did, and that he acted on
impulse. Detective Braden said that after these statements, the Defendant said that he “might
need to speak to his mom or a lawyer.” Detective Braden said that there was a pause in the
conversation after the Defendant’s statement but that the Defendant resumed talking.

        Detective Braden testified that Agent Smith told the Defendant that he was free to
leave and that anything the Defendant said was voluntary. He said the Defendant responded
that it did not matter because the truth would come out and that the girls would not “hide it
long.” Detective Braden stated that Agent Smith asked the Defendant if he still understood
his rights and that the Defendant said he did. Detective Braden said that he reviewed the
rights waiver with the Defendant again at 4:47 p.m., that the Defendant signed the waiver,
and that the Defendant never requested an attorney. He denied that anyone asked the
Defendant if he waived his rights. He said that the Defendant continued talking and that he
stopped him and asked if he could record the interview to obtain an accurate account. He
said that the Defendant agreed and that he reviewed the Defendant’s rights with him again.
He said that other than the Defendant’s comment that he might need to speak to his mother
and a lawyer, the Defendant made no other references to a lawyer the remainder of the day.

       Detective Braden testified that he did not remember discussing if the Defendant had
a mental disorder but that he remembered the Defendant had “tics or jerks” during the time
he was with him on August 17 and 18. He said that he thought the disorder was Tourett
Syndrome but that he did not remember if the Defendant told him that. He stated that when
he reviewed the rights waiver form with the Defendant, the Defendant said that he was not
taking any medications and was not under a doctor’s care. He said that he asked the
Defendant if he had any “mental or emotional problems” and that the Defendant responded
that he did not. He said that he noticed the Defendant’s “nervous tics.”




                                             -23-
        Detective Braden testified that he reviewed the Miranda waiver with the Defendant,
read it to him, asked him to review it himself, and asked if there was anything that needed
to be clarified. He said that the Defendant acknowledged that he understood everything,
reviewed the waiver himself, and initialed it. He said this process took about ten or fifteen
minutes. He said that the Defendant gave a statement that was recorded but that he could not
write as quickly as the Defendant spoke. Detective Braden said that after the audio statement
was recorded, he had the Defendant repeat the information and that he prepared the written
statement and had the Defendant review and initial it. He said he and the Defendant were
reviewing the statement when he learned defense counsel was at the police station. He
thought ten to fifteen minutes elapsed between the time he learned defense counsel was at
the police station and the time defense counsel was allowed to see the Defendant. He said
the Defendant was not in custody until after he confessed and explained that the Defendant’s
confession was a combination of the recorded and written statements. He stated that the
Defendant was free to leave after he told officers he was a situational sexual offender but that
he was not free to leave after he gave the recorded statement. He said that he did not tell the
Defendant an attorney was there to see him because he did not want to “break the
concentration.” He thought the Defendant ate lunch during the post-interview.

        On cross-examination by the State, Detective Braden testified that nothing physically
prevented a person leaving the police station through the back door by the hallways in the
secured area and that a code or key was not needed to exit. He said that doors to the lobby
were not locked when Agent Smith told the Defendant he could leave. He said the
Defendant went to the restroom in the front lobby during the breaks in his interview. He said
the Defendant knew he did not need a key to go through the door from the secured area into
the lobby because he had done so during his breaks. Detective Braden said that the interview
room was “pretty big” and measured approximately twelve to fifteen feet by fifteen to twenty
feet. He said that on the day of the Defendant’s interview, there were chairs, a table, a filing
cabinet, and a stand with a phone and fax machine. He said there was a four- to six-person
table in the interview room.

        Detective Braden testified that he was assigned to the case on August 14, 2009, the
day the police department received information about it. He said he did not contact the
Defendant until August 17, 2009. He said he and Detective James Johnson went to the
Defendant’s house on August 17 around 1:00 p.m. to speak with the Defendant because they
received information that the Defendant was burning photographs and videos in his yard.
He said that the Defendant’s mother, Debbie Harris, met the officers outside and that he
asked her to allow them to see the burning. He stated that Ms. Harris told them the
Defendant was in Franklin and that no one had burned anything. He said he could see a burn
pile that was not fresh from where they stood. He stated that Ms. Harris did not tell them that
the Franklin Police Department was taking a voice stress analysis of the Defendant on

                                              -24-
allegations of child sex abuse and that he learned of the voice stress test after the Defendant
returned home. He told Ms. Harris he wanted to speak with the Defendant. He said Ms.
Harris stated that the Defendant would return soon and that she would tell him. He said that
he and Detective Johnson left after speaking with Ms. Harris, that they saw the Defendant’s
truck returning to his house as they left, that they met with the district attorney and the police
chief, and that they decided to return to the Defendant’s house to interview him. He said that
they returned to the Defendant’s house at 2:00 p.m. and that the Defendant was there. He
said that he asked the Defendant if they could enter the house and that the Defendant allowed
them into the house.

       Detective Braden testified that he told the Defendant he was there to speak with him
about allegations that he sexually assaulted the two victims. He stated that the Defendant
said he had been accused of other similar acts, that he had just returned from the Franklin
Police Department where he took and passed a voice stress analysis, and that he was cleared
there. Detective Braden said that the Defendant agreed to speak with them, that he advised
the Defendant of his Miranda rights, and that the Defendant reviewed and signed the
Miranda waiver. He said the Defendant denied taking medication, drinking any alcoholic
beverages, taking any illegal drugs, being epileptic or diabetic, or having any mental or
emotional problems. He said that the Defendant was not in custody when he completed the
waiver but that obtaining the waiver was standard procedure when interviewing a suspect.
He said nothing indicated the Defendant did not understand his rights.

        Detective Braden testified that after the Defendant signed the Miranda waiver, he
interviewed the Defendant for one and one-half hours. He said the Defendant told him the
victims spent the night at his house a few times in the last month. The Defendant said that
on the Wednesday before the interview, he went into the house and found the victims playing
strip poker on the bed. He said that one victim, M.A., was naked and the other victim, A.G.,
was wearing underwear and that they were kissing each other. He said that it did not look
good to have the girls in his house and naked on his bed and that he did not tell their parents.
Detective Braden asked if there were condoms in the house and how the victims knew where
the condoms were. The Defendant told him that the victims may have found them in his
night stand and played with them. The Defendant said that the victims were acting in a
seductive, inappropriate manner and that they should be held accountable for their actions.
Detective Braden said the victims were ten and eleven years old at the time of the crimes.
Detective Braden stated the Defendant told him that M.A wore a “youth bra” and that A.G.
had “run in on him one time in the bathroom” and seen him nude. The Defendant said that
he bought the victims items at Walmart recently and in the past. He said that his last sexual
relationship was fourteen or fifteen months earlier and that he used the condoms to
masturbate. He said he did not want to give information about the condoms with his mother



                                              -25-
present, but Detective Braden said the Defendant’s mother was not in the room when he was
asked about the condoms.

       Detective Braden testified that the Defendant’s mother was “in and out of the house”
during the interview. He said that the Defendant did not have any questions about the
consent to search form and that he signed it. He said the date and time on the consent to
search form was August 17, 2009, at 3:09 p.m. He said the rights waiver form was dated the
same day at 2:00 p.m. He said that after the consent form was signed, they searched the
residence and bedroom. He said they removed bedding, a computer, and condoms from the
Defendant’s bedroom. He said he obtained a second consent to search form for the
computer, hard drive, and files.

        Detective Braden testified that when the Defendant told officers that he passed the
voice stress analysis in Franklin and learned what the allegations were in this case, he and
his mother asked if he could take a polygraph to clear himself. Detective Braden said that
the Defendant discussed taking a polygraph examination at least three times before the
assistant district attorney arrived and that he wanted to take it as soon as possible. He stated
that the Defendant’s mother told the Defendant more than once that if he had not done
anything, he had no reason to worry and that he should take the polygraph to resolve the
matter. Detective Braden said that he did not initiate the discussion about the polygraph but
that the Defendant mentioned it.

        Detective Braden testified that the assistant district attorney general arrived at the
Defendant’s house during the search and read the Defendant his rights again. Detective
Braden said that the Defendant appeared to understand his rights and that the assistant district
attorney read the rights verbatim as they appeared on the waiver. Detective Braden said that
the assistant district attorney stayed thirty-five minutes, left, and called back to ask him if the
Defendant was still interested in taking a polygraph examination. He said that the Defendant
and his mother wanted the Defendant to take the polygraph to “clear this up and get it done”
and that he told the Defendant a polygraph was set for the next day, August 18, 2009 at
11:00 a.m. He said that he left the Defendant’s house sometime after 5:00 p.m., a few
minutes after scheduling the polygraph, and that the Defendant knew the officers took some
of his property but was not distraught.

        Detective Braden testified that he learned that the Defendant arrived at the police
station sometime around 10:45 a.m. on August 18, 2009, and that he went to the lobby to
acknowledge the Defendant was there for the polygraph. He stated that he told the
Defendant that they were still preparing, that Agent Smith was running late, and that he
would meet with the Defendant when things were ready. He said the Defendant did not
express dissatisfaction over having to wait, express a desire to leave, or express an

                                               -26-
unwillingness to take the polygraph. He said that he did not tell the Defendant that he could
not leave and that he did not mention the polygraph when he went to the lobby.

        Detective Braden testified that he had no contact with the Defendant from 10:45 a.m.
until around noon, when Agent Smith arrived. He said that he took the Defendant back to
the interview room and that Agent Smith read and reviewed the consent to polygraph form
with the Defendant. He said that the Defendant and Agent Smith signed the form, that he
signed it as a witness, and that it was dated August 18, 2009 at 12:11 p.m. He said that
Agent Smith reviewed the Miranda waiver with the Defendant and that this was the third
time in twenty-four hours that the Defendant’s rights had been reviewed with him. He said
the Miranda waiver was signed by the Defendant and witnessed by Agent Smith and him and
that it was signed at 12:18 p.m. He said that after the forms were signed, he left the room
and observed the polygraph examination through the one-way window. He said that during
the Defendant’s first break, he told the Defendant that there were restrooms and a water
fountain in the lobby and that the Defendant was not in custody when he went to the lobby
alone during any of his breaks. He said that after the polygraph examination, the Defendant
went to the lobby while Agent Smith calculated the results of the polygraph. He said that
when the Defendant returned to the interview room, Agent Smith told him that he had shown
“strong deception,” that the Defendant did not show much reaction, and that Agent Smith
explained the difference between situational and preferential sexual offenders.

       Detective Braden testified that the Defendant did not demand a lawyer. He said that
the mention of a lawyer “sounded more like a question” and that it was casual. He stated that
the Defendant said “he might need to talk to his mom or a lawyer.” He said that the
Defendant never asked specifically for his mother or a lawyer. He said that Agent Smith told
the Defendant that anything he said was voluntary and that he was free to leave. Detective
Braden said he moved two or three feet further from the door to clear a path for the
Defendant. He stated that after the Defendant said the girls could not hide the story long,
Agent Smith asked the Defendant if he still understood his rights and that the Defendant said
he did. Detective Braden said the Defendant continued talking, admitted touching M.A. and
A.G. sexually, and stated that “he had licked [the victims] in their private area and touched
them with his finger.” He said that he and Agent Smith were not asking questions but that
they had the Defendant pause after the admissions. He said that he asked the Defendant if
he could record his statement to obtain a full account. He said that the Defendant agreed to
the recording, that he retrieved the recording equipment, that he reviewed the Defendant’s
Miranda rights again, and that the Defendant signed the waiver. The Defendant’s recorded
statement was entered as an exhibit.

       Detective Braden testified that the Defendant was in custody and was not free to leave
after completing the recorded statement around 5:20 p.m. He said that after the recorded

                                            -27-
statement was taken, he took the Defendant’s written statement, which ended about 5:40.
He said he reviewed the written statement with the Defendant and allowed him to read it and
sign it, finishing around 5:50 or 5:55 p.m. He said another detective learned that defense
counsel was at the police station at 5:48 p.m., which was after the Defendant gave his
statement but while he reviewed it and before he signed it. He said the Defendant had not
been formally charged at that time. He said that defense counsel was brought to the
interview room after the Defendant signed his statement.

       Detective Braden testified that defense counsel stayed in the interview room fifteen
to twenty minutes. He said that when counsel left the room, counsel asked if he was going
to charge the Defendant. He said he told counsel that the Defendant would be charged. He
stated that after the meeting, counsel went to the front of the police station and that the
Defendant was taken to the Marshall County jail and charged around 6:32 p.m.

        On redirect examination, Detective Braden testified that he was instructed not to arrest
the Defendant the day of the polygraph in order to provide more time to investigate. He said
that after the Defendant gave a full account, he did not feel the Defendant was free to leave.
He said that the Defendant’s statement was written but that he was unsure if the Defendant
had signed the statement when he received word that counsel was in the police station lobby.

       TBI Special Agent Criminal Investigator Michael Smith testified for the State that he
was a certified polygraph examiner and that at work, he spent about ninety percent of his
time conducting forensic polygraph examinations and the interviews associated with the
polygraphs. He said that he scheduled a polygraph examination of the Defendant with the
assistant district attorney general for August 18, 2009, at 11:00 a.m. but that heavy traffic
made him late. He said that he arrived around 12:00 p.m., that Detective Braden brought the
Defendant to the interview room where he prepared the polygraph equipment, and that he
introduced himself and began the pretest interview. He said Detective Braden was in the
room for ten to fifteen minutes as a witness for the polygraph consent and the rights waiver
forms. He stated that during the pretest interview, he reviewed the consent form prescribed
by the State Polygraph Commission, that the Defendant signed the form, that he signed as
a witness, and that he wrote the time, 12:11 p.m., on the form. He said he noted on the form
that the Defendant did not want the polygraph examination recorded. He said he also
reviewed the TBI’s Miranda rights waiver with the Defendant. The form was dated August
18, 2009, and the time noted was 12:18 p.m, when the interview concluded. He said he
confirmed the Defendant could read, asked for a verbal response to each question, and had
the Defendant initial each answer. He said Detective Braden left the room after the two
forms were completed.




                                              -28-
        Agent Smith testified that he continued with the next phase of the pretest interview,
the suitability assessment. He obtained background information, assessed whether the
Defendant was competent to take the polygraph, and asked medical questions to determine
if there were issues that would interfere with the polygraph. He said the Defendant told him
his birth date and address and about passing the voice stress analysis. He said the Defendant
told him he was a high school graduate, had a Christian family background, was home
schooled, and had studied law enforcement at Nashville Tech for one and one-half years. He
said the Defendant told him that he was not under a doctor’s care for medical problems. He
stated that the Defendant said he had Tourett Syndrome and suffered from “tics” but that it
was a neurological condition that did not affect “intelligence or anything of that nature.”
The Defendant said that he had not had any drugs, alcohol, or tobacco in the last twenty-four
hours and that he had eaten that morning.

       Agent Smith testified that after the suitability assessment phase, he explained the
polygraph technique and instrument to the Defendant. He said that he reviewed the case file
and that the Defendant denied the allegations. He said that he reviewed the questions he
would ask and explained procedural testing instructions such as how to sit. He said that they
took a break from approximately 1:15 to 1:30 and that he stayed in the room setting up
equipment after the Defendant left the room.

        Agent Smith testified that after the Defendant returned from the break, they began the
in-test phase. He said that he did two series because there were two victims and that there
were three charts done for each victim. He said that the first test concluded at 2:14 p.m., that
they took a break, and that he did not think they left the room. He said that the second test
concluded at 2:41 p.m and that they took a break from approximately 2:45 to 3:05, during
which time he printed, scored, and analyzed the charts.

       Agent Smith testified that the Defendant returned to the interview room at 3:05 p.m.
and signed the polygraph report. He said Detective Braden came to the interview room also.
He said that during the post-test interview, he told the Defendant that the Defendant had a
“significant problem on the test” and that the test “showed deception.” He said he discussed
the case file and victims’ statements with the Defendant. He told the Defendant that in his
opinion, there was a strong likelihood the Defendant did the things of which the victims
accused him and that he needed to tell the truth about what happened. Agent Smith said he
discussed situational and preferential pedophiles with the Defendant. He explained that
preferential offenders were sexually stimulated only by children and that situational offenders
had more normal social relationships and had inappropriate sexual contact with children
usually when they were under stress and lost control. He said that he asked the Defendant
which type he was and that the Defendant said he was a situational offender. He stated that
the Defendant said that he knew it was wrong, that he had a conscience, that it was impulse,

                                              -29-
and that he “might need to talk to my mama and a lawyer.” Agent Smith said that he paused
and waited for the Defendant to invoke his right to a lawyer or to terminate the interview but
that he did not. He said that he told the Defendant that anything he said was voluntary, that
he was not under arrest, that the door was not locked, that he was free to leave, and that he
could talk to his mother or a lawyer. He said that neither he nor Detective Braden asked the
Defendant any questions but that the Defendant started talking. The Defendant said that he
was going to be held accountable for his actions, that he was ready to accept responsibility,
that he did not want to be this type of person, that he did not want to go to jail but had to
“take the rap” for what he did, that he wanted to apologize but was uncertain the victims
would forgive him, that he could not control “it,” that he was not gay, and that he had a
girlfriend previously.

        Agent Smith testified that after the Defendant made those statements, he asked the
Defendant what happened from his perspective. He stated that the Defendant said he
engaged in sexual activity with M.A. on two occasions in July 2009 at the Defendant’s house
after church. He stated that the Defendant told him that he rubbed and licked M.A.’s vagina,
that M.A. had “masturbated him and ejaculated his penis,” and that he rubbed his penis on
M.A’s vagina. He stated that the Defendant said he engaged in sexual activity with A.G. on
two occasions in July 2009 at the Defendant’s house after church. He stated that the
Defendant told him that he licked A.G.’s vagina, that he rubbed A.G’s vagina on the inside
of her “vagina lips,” and that A.G. touched his penis and rubbed his penis with her lips until
he ejaculated. Agent Smith said the post-test interview ended about 4:45 p.m. He said
Detective Braden obtained a written statement and a recorded interview. He said that he was
present when Detective Braden read the Defendant his rights, that he was in and out of the
room during the recorded and written statements, and that Detective Braden finished with the
statements about 5:45 to 6:00 p.m.

         On cross-examination, Agent Smith testified that defense counsel arrived before he
left the police station. He said that a few minutes elapsed between Detective Braden’s
learning of defense counsel’s presence and counsel’s being allowed to see the Defendant and
that counsel was not allowed back until the Defendant completed his statement. He said that
he told the Defendant he needed to tell the truth and resolve this before it went further, not
that if he told the truth the case would not go further. He said he did not discuss jail with the
Defendant. He said that the Defendant ate in the late afternoon and that he thought it was
while the confession was being recorded.

       On redirect examination, Agent Smith testified that he did not tell the Defendant that
he would not go to jail if he talked, that he would get a reduced sentence, or that he would
not be arrested. He said that he never told the Defendant the amount of time that he might
serve.

                                              -30-
        Lewisburg Police Detective James Johnson testified that he received a telephone call
from dispatch regarding defense counsel’s attempts to reach his client on August 18, 2009.
He said that the assistant district attorney was with him and advised him to note the time of
the call. He said he noted the call came at 5:48 p.m.

       On cross-examination, Detective Johnson said that the assistant district attorney told
him to tell Detective Braden that defense counsel was outside. He said that he did not go into
the interview room because he did not want to interrupt the interview and that he told
Detective Braden counsel was there when Detective Braden came out of the room. He did
not remember how long he waited to tell Detective Braden that counsel was outside. He said
he received a second call about 5:58 p.m. informing him that counsel wanted to see his client
and admitted he had not told Detective Braden that counsel was outside since the first call.
He said he received a third call about 6:05 p.m. informing him again that counsel was
outside, but he could not remember if Detective Braden had come out of the interview room
and been informed of counsel’s presence before this call. He said he did not recall any
discussion about waiting until the interview was complete to allow counsel to see the
Defendant.

       Debbie Stewart Harris, the Defendant’s mother, testified for the defense that she
arrived late for the Defendant’s polygraph examination and that she brought him lunch
around 3:30 p.m. She said she stayed at the police station throughout the afternoon.

       The Defendant testified that he arrived at the police station for his polygraph
examination around 11:00 a.m. on August 18, 2009, and that he agreed to take a polygraph
to prove he did not commit the alleged acts. He said he drove himself to the police station,
went into the lobby, and asked the dispatcher to inform Detective Braden that he was there.
He said that Detective Braden told him that Agent Smith would be late and that he waited
a while. He said Detective Braden took him to the interview room after Agent Smith arrived.
He reviewed the polygraph consent and the Miranda rights waiver forms with Agent Smith
and signed the waivers. He said that he answered questions about his health, that he told
Agent Smith that his Tourett Syndrome caused him to jerk and flinch, and that he was
concerned because the test analyzed based on movements and breath. He stated that Agent
Smith said it was “fine” and that he went along with it.

        The Defendant testified that he was given two examinations and that he took a break
in the middle. He said that he left the interview room about three times during the day, that
he never left and roamed the police station alone, and that Detective Braden opened the door
and escorted him out. He said that he used the restroom in the lobby the first few times and
that he used the restroom in the back near the interview room the last few times. He said that
Detective Braden accompanied him into the restroom and asked if he was okay. He said that

                                             -31-
before the polygraph, he was asked to wash his hands with warm water and soap and that he
went to the restroom in the lobby. He said Detective Braden accompanied him to the front
lobby and opened the door for him. He said that he went into the restroom alone but that
Detective Braden came into the restroom while he was washing his hands and asked if he
was ready. He said that during one of the restroom breaks, he was sent to the lobby by
himself and that when the break was over, Detective Braden opened the secured door.

        The Defendant testified that after the polygraph examination and a break, Agent Smith
told him that the polygraph showed high signs of deception and that Agent Smith believed
he was lying. He said Agent Smith used a computer to explain situational and preferential
offenders to him. He stated that Agent Smith said the assistant district attorney needed to
know which type of offender he was and that he told Agent Smith he was a situational
offender. He said that he thought he had to choose one of the two. He said that after Agent
Smith told him he showed signed of deception, he said, “I would like to talk to my mom and
an attorney.” He stated that Detective Braden interrupted him and said that Agent Smith was
going to talk to the assistant district attorney and that it would look bad if he did not talk
now. He said that he told them he wanted to talk to his attorney first to make sure he was
doing the “right thing” but that they never stopped talking and persuading him. He said that
after he told them he wanted to speak to his mother and an attorney the third time, he reached
for his cell phone, which was on the interview table, but that Detective Braden took it and
put it on the filing cabinet behind him. He said he felt like they did not want him to use his
phone to call his mother. He said that after he asked for his mother and an attorney, he left
the interview room once, when Detective Braden escorted him to the restroom in the back.
He said his cell phone was not returned to him until after he met with counsel in the
interview room, when he retrieved the phone from the file cabinet and gave it to counsel to
give to his mother for safekeeping. He said that they told him he was in a “whole lot of
trouble” and that the best thing to do was to talk to them first and to his attorney later. He
said he did not receive the food his mother brought to the police station until after he gave
his statements.

        The Defendant testified that he gave the recorded statement before the written
statement. He said he did not know counsel was waiting in the lobby until he saw counsel
in the interview room. He said that if he had known his mother had hired counsel and
counsel was waiting in the lobby, he would have wanted to talk to them to determine how
to proceed. He said that they told him he was free to leave earlier in the day but that after he
failed the polygraph and the questioning began, they did not say he was free to leave and
continued asking questions. He said that the officers did not tell him he was free to leave
after he asked to speak to his mother and an attorney. He said that he was told polygraph
examinations were not usually recorded, that they could be, but that setting up the recording



                                              -32-
equipment would take time. He said that because he had already waited a long time, he told
them he did not want the polygraph recorded.

        On cross-examination, the Defendant testified that he agreed to take a polygraph when
officers were at his house on August 17, 2009, but that he did not mention the polygraph
multiple times. He said that he had one and one-half years of post-high school education,
that he changed his major to criminal justice during that time, and that he did not study
polygraphs but knew what they were. He said he learned what a voice stress analysis test
was when he took one in Franklin. He said that he knew the polygraph was voluntary and
that he thought he would pass it. He stated that he had studied Miranda rights in college
coursework but that he learned about them eight years earlier. He said he worked as a
correctional officer for the Rutherford County Sheriff’s Department but resigned because of
his Tourett Syndrome. He said that he knew no one could take his rights away from him but
that because he was under pressure and had Tourett Syndrome, he was not thinking clearly.
He said that he went through two days of interrogation at two different police departments
and that he confessed at the end of the second day because the police persuaded and
intimidated him. He said the police did not record his interview because they had something
to hide but agreed that he told the officers he did not want his polygraph recorded. He said
a recording would have verified that he asked for an attorney multiple times. He said he did
not tell the officers he wanted an attorney while his statement was being recorded because
he knew it could be recorded over, he had told his story multiple times, and he was tired.

        The Defendant testified that the officers asked him for details and that he told them
what they wanted to hear because he wanted it to be over. He said he was ashamed of being
at the police station and knew his mother would be upset. He thought that if he confessed,
he might receive probation or a “break” from the assistant district attorney. When explaining
what the officers said to intimidate him, he stated Detective Braden told him that not
everyone needed prison and that because he was a situational offender, he could receive
therapy or probation instead of prison. He said that when Agent Smith asked him which type
of offender he was, Agent Smith stated that if he was a preferential offender, he would go
to prison. He stated Agent Smith said that the Defendant’s “best bet” was to admit what he
did, that Agent Smith wanted to help him because he did not want to see him in prison, and
that alternative means existed to help him if he admitted the allegations. He said that
Detective Braden read the victim’s statements and the allegations to him, asked if he did the
acts alleged, told him it would not be good for him if he did not “come clean,” and that he
was facing a long time in prison. He stated that at his house on August 17, 2009, the
assistant district attorney said that he did not believe the Defendant was telling the truth, that
if the Defendant did not “come clean,” he was going to spend the rest of his life in prison,
and that a high bond would be set to keep him in jail.



                                              -33-
       The Defendant testified that the two officers were lying when they said he was told
he could leave after he said he would like to speak to his mother or a lawyer. He said that
he did not remember pushing open the door to the lobby himself during his breaks but that
he knew the doors to the lobby were unlocked. He said that after the results of the polygraph
were explained to him, he asked for a lawyer three times within fifteen to twenty minutes.
He stated that in making his first request, he said, “I think I need to talk to my mom and an
attorney before I talk to you guys.” He said that the officers tried to persuade him
“passively” against talking to a lawyer and that he did not feel like he could leave. He said
he was under stress because his roommate, Richie Jacowisz, M.A.’s mother’s boyfriend,
threatened to kill him on August 14 or 15 if he failed the polygraph. He stated that in making
his second request, he said, “Before I talk to you guys, I want to talk to my mom or attorney
or lawyer or whatever.” He said that Detective Braden responded by saying he understood
and just wanted the Defendant to talk to them. He stated that in making his third request, he
said, “Before I talk to you guys, I want to call my mom, you know, and an attorney.” He said
that after his third request, he reached for his cell phone on the interview table but that
Detective Braden placed the phone on the filing cabinet behind him. He said he felt like he
was in custody. He said Detective Braden acted like “Mr. Nice Guy” as if he wanted to help
the Defendant.

        Agent Smith was recalled and testified for the State that at the end of the interview,
he told the Defendant that he was leaving the room to talk to the assistant district attorney.
He said that the “therapy issue” was discussed when he explained that situational offenders
usually responded to therapy but that preferential offenders did not. He did not remember
Detective Braden telling the Defendant that not everyone went to prison if they confessed.
He denied hearing Detective Braden discuss therapy with the Defendant or tell the Defendant
that the assistant district attorney “had it out for him” and that he was looking at a long time
in prison. He stated that the Defendant did not mention his mother or an attorney three times
during the post-interview and that the Defendant mentioned them once but used the word
lawyer, not attorney. He said he did not remember the Defendant having a cell phone.

        Detective Braden was recalled and testified for the State that he read some of the
victims’ statements during the Defendant’s interview to corroborate what the Defendant told
them. He denied telling the Defendant that if he did not “come clean,” he would serve a
long prison sentence. He denied telling the Defendant that not everyone goes to prison and
that the Defendant might receive therapy if he told the truth. He denied telling the Defendant
that the assistant district attorney was “out for him.” He denied hearing the assistant district
attorney tell the Defendant while at the Defendant’s house that he was going to spend a long
time in prison and said the Defendant’s mother was outside when the assistant district
attorney left the Defendant’s house. He denied that the Defendant said he needed to talk to
his mother and an attorney before talking to them. He said he did not respond to the

                                              -34-
Defendant by saying that he understood or that it would be better if the Defendant talked.
He said that he did not grab the Defendant’s cell phone from the interview table.

       The trial court found that the Defendant did not make an unequivocal request for an
attorney. The court noted that after the Defendant said, “I think I might need to talk to my
moma [sic] and a lawyer,” Agent Smith took appropriate steps to ensure the Defendant
understood his rights. The court also found that the Defendant began giving his written
statement to Detective Braden at 5:20 p.m., that they reviewed the statement from 5:50 to
6:00 p.m., that counsel arrived at the police station at 5:48 p.m., and that counsel was allowed
access to the Defendant soon after arrival. The court found that the Defendant’s Sixth
Amendment right to counsel was not violated because counsel was allowed access to the
Defendant before the initiation of adversary proceedings.

        The United States and Tennessee Constitutions protect a suspect from “being
compelled to give evidence against himself.” State v. Berry, 141 S.W.3d 549, 576 (Tenn.
2004) (citing U.S. Const. amend. V; Tenn. Const. art. I, § 9); see also State v. Turner, 305
S.W.3d 508, 515 (Tenn. 2010). If a suspect is in custody and under state-initiated
interrogation, the police must first inform him of his Fifth Amendment rights in order for his
confession to be admissible as substantive evidence in the trial of the matter. See Miranda
v. Arizona, 384 U.S. 436 (1966). Encompassed within the federal and state constitutional
provisions is the right to counsel. See id. at 444. “[A]fter a knowing and voluntary waiver
of the Miranda rights, law enforcement officers may continue questioning until and unless
the suspect clearly requests an attorney.” Davis v. U.S., 512 U.S. 452, 455 (1994). “When
a suspect invokes the right to counsel, police must cease questioning until counsel is present
or the suspect initiates further conversation with the police. State v. Saylor, 117 S.W.3d 239,
244 (Tenn. 2003); see Miranda, 384 U.S. at 444-45; see also Edwards v. Arizona, 451 U.S.
477 (1981); State v. Stephenson, 878 S.W.2d 530, 548 (Tenn. 1994). A suspect who initially
waived his right to counsel and contends that he later revoked the waiver bears the burden
of proving he revoked the waiver and clearly asserted his right to counsel. Turner, 305
S.W.3d at 519.

        On review, an appellate court may consider the evidence presented at the suppression
hearing as well as at the trial in determining whether the trial court properly denied a pretrial
motion to suppress. State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998). On appeal, a
trial court’s factual findings in a suppression hearing are conclusive unless the evidence
preponderates against them. State v. Odom, 928 S.W.2d 18, 22-23 (Tenn. 1996); State v.
Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). The application of the law to the facts
as determined by the trial court is a question of law that is reviewed de novo on appeal. State
v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). Whether a suspect’s request for an attorney
was unequivocal is a mixed question of law and fact that is subject to de novo review. State

                                              -35-
v. David Hooper Climer, Jr., — S.W.3d —, No. W2010-01667-SC-R11-CD (Tenn. Apr. 19,
2013) (citing Turner, 305 S.W.3d at 514-15).

        The evidence reflects that the Defendant went to the police station voluntarily for a
polygraph examination and was there for several hours. He was questioned in a secured area
that he could leave but could not re-enter of his own accord. He was advised of his rights
before the polygraph examination began, and he waived those rights in writing. After the
polygraph examination, Agent Smith and Detective Braden informed him of the results.
According to the officers, the Defendant said he might need to talk to his mother or a lawyer,
but before they said anything, he began making inculpatory statements. According to the
Defendant, he told the officers he wanted to talk to his mother and an attorney, but the
officers continuously talked and persuaded him to talk to them. The trial court credited the
officers’ testimony. Deferring to the court’s factual findings regarding the credibility of the
officers’ testimony, we conclude that the Defendant’s statement he “might” want to talk to
his mother or an attorney was not a clear invocation of his right to counsel. See Climer, —
S.W.3d —, slip op. at 31-33 (stating that the defendant’s statement “communicating merely
a potential desire to consult with counsel and lack[ing] the clarity and definitiveness
characteristic of statements deemed unequivocal invocations of the right to counsel” did not
require that questioning immediately cease) (emphasis in original)). We note, as well, that
after the Defendant made the statement about talking to his mother or an attorney, he, not the
police, initiated further discussion. See State v. Koffman, 207 S.W.3d 309, 318-19 (Tenn.
Crim. App. 2006) (stating that after a defendant invokes his right to counsel, questioning
must cease, although a defendant may reopen questioning).

        We have not overlooked the evidence that an attorney was present at the police station
and asked to talk to the Defendant, but the Defendant was not told the attorney was there.
The Defendant had waived his right to counsel and did not seek to revoke his waiver by
asking to consult with an attorney. In Moran v. Burbine, the United States Supreme Court
decided that the police did not violate a murder suspect’s Fifth Amendment rights against
self-incrimination and to counsel by failing to inform him that an attorney his sister contacted
to represent the Defendant on another criminal charge had called for him. 475 U.S. at 475
U.S. 412, 421-22 (1986) (“Events occurring outside of the presence of the suspect and
entirely unknown to him surely can have no bearing on the capacity to comprehend and
knowingly relinquish a constitutional right.”); see also Stephenson, 878 S.W.2d at 544-47
(holding as a matter of state and federal constitutional law that a suspect’s waiver of his
Miranda rights was not invalidated because the police failed to tell him that an attorney
procured by his family wanted to see him), abrogated on other grounds by State v. Saylor,
117 S.W.3d 239, 246-47 (Tenn. 2003). The Court also said that no Sixth Amendment
violation occurred because the Sixth Amendment right to counsel did not attach until after
the initiation of formal charges. Burbine, 475 U.S. at 428-32; cf. McPherson v. State, 562

                                              -36-
S.W.2d 210, 212-13 (Tenn. Crim. App. 1977) (concluding that a defendant who gave oral
and written waivers before making a statement without counsel present was not denied his
Sixth Amendment right to counsel despite his attorney’s request that the police not question
the defendant in the attorney’s absence). The Court rejected, as well, the proposition that the
police conduct violated the defendant’s right to fundamental fairness under the Fourteenth
Amendment. Burbine, 475 U.S. at 432-34. Returning to the facts of the present case, we
conclude that the trial court did not err in denying the motion to suppress.

                                              III

      The Defendant contends that the trial court erred in failing to merge some of his
aggravated sexual battery convictions to reflect only one conviction per victim for each date.
The State counters that the Defendant failed to raise this issue in his motion for a new trial
and has not demonstrated that he is entitled to plain error relief. We conclude that the
Defendant is not entitled to relief on this basis.

        The State argues that the issue is waived because it was not raised in a motion for a
new trial. The remedy for a double jeopardy violation is not a new trial, it is dismissal of a
charge or merger of convictions. See, e.g., State v. Addison, 973 S.W.3d 260, 267 (Tenn.
Crim. App. 1997). The issues that may be waived if they are not raised in a motion for a new
trial are those upon which a new trial is sought. See T.R.A.P. 3(e). The Defendant did not
waive the issue.

       The Defendant argues that Counts 6, 8, 10, and 12, all of which involve various forms
of physical contact with M.A. on July 22, 2009, should be merged. He makes the same
argument for Counts 13, 15, and 17, involving various forms of physical contact with A.G.
on July 29. He makes the argument, as well, for Counts 19, 21, 23, 25, and 26, involving
various forms of physical contact with M.A. on July 29.

        The double jeopardy clauses of the United States and Tennessee Constitutions state
that no person shall be twice put in jeopardy of life or limb for the same offense. U.S. Const.
amend. V; Tenn. Const. art. I, § 10. The clause has been interpreted to include the following
protections: “It protects against a second prosecution for the same offense after acquittal. It
protects against a second prosecution for the same offense after conviction. And it protects
against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S.
711, 717(1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989); State
v. Phillips, 924 S.W.2d 662, 664 (Tenn. 1996).

       At the time of the offenses and the trial, double jeopardy issues involving multiplicity
of offenses, or multiple convictions of a single statute, were evaluated based upon the facts

                                             -37-
and circumstances of the case. See, e.g., State v. Pickett, 211 S.W.3d 696, 705-06 (Tenn.
2007); Phillips, 924 S.W.2d at 665. While the Defendant’s appeal was pending, our supreme
court decided State v. Watkins, 362 S.W.3d 530, 543 (Tenn. 2012), which applied the
analytical framework of Blockburger v. United States, 284 U.S. 299, 304 (1932), to
determine if double jeopardy protections permitted convictions of multiple offenses
committed, necessarily, before the Watkins decision. In a companion case, the court again
applied the Blockburger framework to pre-Watkins offenses. See State v. Cross, 362 S.W.3d
512 (Tenn. 2012). This court has applied the Blockburger/Watkins analysis to a double
jeopardy claim for offenses committed before the Watkins decision. See State v. Mahlon
Johnson, No. W2011-01786-CCA-R3-CD (Tenn. Crim. App. Feb. 7, 2013). We note, as
well, that Watkins did not recognize a new constitutional right. Rather, it revised the process
for analyzing whether a defendant’s previously recognized constitutional right had been
violated. We will apply Watkins to the Defendant’s case.

        “In single prosecutions, multiple punishment claims ordinarily fall into one of two
categories, . . . referred to as ‘unit-of-prosecution’ and ‘multiple description’ claims.” State
v. Watkins, 362 S.W.3d 530, 543 (Tenn. 2012). Unit-of-prosecution claims arise “when
defendants who have been convicted of multiple violations of the same statute assert that the
multiple convictions are for the ‘same offense.’” Id. Watkins did not involve a unit-of-
prosecution claim. In revising the framework for analyzing multiple punishment claims,
though, it addressed the analysis for both unit-of-prosecution and multiple description claims.
Regarding unit-of-prosecution claims, Watkins said that the pertinent analysis involves
determining “what the legislature intended to be a single unit of conduct for purposes of a
single conviction and punishment.” Id. (quoting George C. Thomas, A Unified Theory of
Multiple Punishment, 47 U. Pitt. L. Rev. 1, 11 (1985)). In this endeavor, courts are to “apply
the ‘rule of lenity’ when resolving unit-of-prosecution claims, meaning that any ambiguity
in defining the unit of conduct for prosecution is resolved against the conclusion that the
legislature intended to authorized multiple units of prosecution.” Id. (citing Gore v. United
States, 357 U.S. 386, 391-92 (1958)).

        The aggravated sexual battery statute proscribes an act of unlawful sexual contact with
a victim. See T.C.A. § 39-13-504. By its nature, the proscribed act of touching a victim’s
intimate parts or a victim’s touching a defendant’s or another person’s intimate parts is a
singular occurrence that is complete upon the touching. See id. § 39-13–501(6); cf. Phillips,
924 S.W.2d at 664 (in a pre-Watkins case, noting that separate acts of intercourse generally
constituted separate rape offenses). If a touching of a different intimate part occurs, a
discreet instance of the proscribed conduct has occurred. We conclude that the legislature’s
intent in enacting the statute was for each touching of an intimate part to constitute a separate
violation of the statute.



                                              -38-
        Regarding M.A. on July 22, 2009, four counts alleged aggravated sexual battery in
which the Defendant touched M.A.’s genital area with his mouth and/or tongue (Count 6),
her genital area with his hand and/or finger (Count 8), her buttocks with his hand and/or
finger (Count 10), and her genital area with his penis (Count 12). The evidence reflects that
all of these events took place when the Defendant, M.A., and A.G. were in the Defendant’s
bedroom on his bed. The victim testified that the Defendant licked her vagina, touched her
“butt,” and penetrated her vagina with his finger. When he penetrated her vagina with his
penis, he positioned her legs on his shoulders. During the incident, the Defendant took a
condom from a drawer and wore it. Each count involved a different combination of the
Defendant’s and M.A.’s body parts occurring at different times during the incident. We
conclude that the evidence demonstrates four distinct instances of aggravated sexual battery.
The Defendant is not entitled to have the four aggravated sexual battery convictions merged.

       Regarding A.G. on July 29, 2009, three counts allege aggravated sexual battery in
which she touched his penis with her hand (Count 13), he touched her vagina with his hand
and/or finger (Count 15), and he touched her genital area with his mouth and/or tongue
(Count 17). A.G. testified that the Defendant touched her vagina with his finger and tongue,
told her to suck his penis, and made her rub his penis with her hand. The Defendant said in
his recorded statement that A.G. stimulated him with her hand until he ejaculated, that he
removed the condom, and that he licked her genital area. Each count involved a different
combination of the Defendant’s and A.G.’s body parts occurring at different times during the
incident. The evidence demonstrates three distinct instances of aggravated sexual battery.
The Defendant is not entitled to merger of these convictions.

        Regarding M.A. on July 29, 2009, five counts allege aggravated sexual battery in
which he touched her genital area with his mouth and/or tongue (Count 19), her genital area
with his hand and/or finger (Count 21), her buttocks with his hand and/or finger (Count 23),
her breast with his hand and/or finger (Count 25), and her buttocks with his mouth and/or
tongue (Count 26). As we discussed in Section I, the evidence is insufficient to support the
conviction for Count 26, and we will not discuss it here. As to the four remaining counts,
M.A. testified that the Defendant licked her “pee pee,” touched her genital area with his
fingers, touched her buttocks with his hand, and touched her chest with his hand. The
Defendant admitted in his written statement that he touched M.A.’s clitoris and inside her
vaginal lips with his finger. He admitted in his recorded statement that he touched and
rubbed her private area including her clitoris, although he denied penetrating her vagina.
Each count involved the Defendant’s touching a distinct body part with his hand or finger,
and the evidence demonstrated that the events occurred as a sequence of acts. We conclude
that the evidence established four separate instances of aggravated sexual battery and that the
Defendant is not entitled to merger of these counts.



                                             -39-
                                               IV

       Although not raised by the parties, we have considered as a matter of plain error
whether the court should have merged eight of the aggravated sexual battery convictions into
eight of the rape of a child convictions. See T.R.A.P. 36(b) (plain error). This issue involves
the counts of aggravated sexual battery that occurred immediately before the Defendant
sexually penetrated the same body part of the same victim and during the same incident.
There are two possible constitutional concerns: double jeopardy and due process.

                                    A. Double Jeopardy

       At the time of the offenses and the trial, double jeopardy questions involving
convictions of different statutes were considered under the framework provided in State v.
Denton, 938 S.W.2d 373 (Tenn. 1996), abrogated by Watkins, 362 S.W.3d 530. While the
Defendant’s appeal was pending, the supreme court decided Watkins. The question arises
whether the Denton analysis, applicable at the time of the offenses and the Defendant’s trial,
should apply, or whether the current Watkins analysis should be employed. For the reasons
we discussed above, we will apply Watkins to the Defendant’s case.

       Watkins holds that Blockburger provides the applicable test for determining whether
multiple convictions under different statutes constitute the same offense for double jeopardy
principles. Watkins, 362 S.W.3d at 558. When the “same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires proof of an additional fact
which the other does not.” Blockburger, 284 U.S. at 304. Our supreme court has stated that
“the Blockburger test requires an examination of the statutory elements in the abstract,
without regard to the proof offered . . . in support of the offenses.” Watkins, 362 S.W.3d at
544 (citing State v. Dixon, 509 U.S. 688, 696 (1993)).

      First, though, the court must first determine whether the convictions arise from the
same act or transaction. Id. at 545. In the present case, the following convictions are of
concern:

       1.     Count 4, aggravated sexual battery involving the Defendant’s touching A.G.’s
              genital area with his mouth or tongue, and Count 3, rape of a child involving
              the Defendant’s performing cunnilingus on A.G. on July 22.
       2.     Count 6, aggravated sexual battery involving the Defendant touching
              M.A.’s genital area with his mouth or tongue, and Count 5, rape of a
              child involving cunnilingus of M.A. on July 22.



                                              -40-
       3.     Count 8, aggravated sexual battery involving the Defendant’s touching
              M.A.’s genital area with his hand or finger, and Count 7, rape of a child
              involving digital penetration of M.A’s genital area on July 22.
       4.     Count 12, aggravated sexual battery involving the Defendant’s touching
              M.A.’s vagina with his penis, and Count 11, involving penile
              penetration of M.A.’s vagina on July 22.
       5.     Count 15, aggravated sexual battery involving the Defendant’s touching
              A.G.’s genital area with his hand and/or finger, and Count 14, rape of
              a child involving digital penetration of A.G.’s genital area on July 29.
       6.     Count 17, aggravated sexual battery involving the Defendant’s touching
              A.G.’s genital area with his mouth and/or tongue, and Count 16, rape
              of a child involving cunnilingus of A.G. on July 29.
       7.     Count 19, aggravated sexual battery involving the Defendant’s touching
              M.A.’s genital area with his mouth and/or tongue, and Count 18, rape
              of a child involving cunnilingus of M.A. on July 29.
       8.     Count 21, aggravated sexual battery involving the Defendant’s touching
              M.A.’s genital area with his hand and/or finger, and Count 20, rape of
              a child involving the Defendant’s digital penetration of M.A. on July
              29.

       For each of these groupings, the Defendant’s touching the victims was prefatory to
the penetration, and the touching and the penetration were contemporaneous and involved
the same body parts. Each grouping of convictions involve the same act or transaction.

        Because these groupings involve the same act or transaction, we move to the second
step of the Blockburger/Watkins analysis. See id. at 557. “If the elements of the offenses are
the same, or one offense is a lesser included of the other, then we will presume that multiple
convictions are not intended by the General Assembly and that multiple convictions violate
double jeopardy.” Id. As we noted in Section I of this opinion, the elements of rape of a
child involve unlawful sexual penetration of a victim who is more than three years of age but
less than thirteen years of age. T.C.A. § 39-13-522(a). The elements of aggravated sexual
battery involve unlawful sexual contact between a victim and a defendant, and the victim is
less than thirteen years old. Id. § 39-13-504(a)(4). Sexual penetration means intrusion into
a person’s body and does not require that the purpose be for sexual arousal or gratification,
and sexual contact means touching but not necessarily intrusion and requires that the purpose
be for sexual arousal or gratification. Compare id. § 39-13-501(7) (sexual penetration) with
id. § 39-13-501(6) (sexual contact). We conclude that the elements of aggravated sexual
battery and rape of a child are not the same.




                                             -41-
        Blockburger also requires consideration of whether one offense is a lesser included
offense of the other. Watkins, 362 S.W.3d at 557. Lesser included offenses are defined by
Tennessee Code Annotated section 40-18-110(f) and (g) (2012). The statute does not
classify aggravated sexual battery as a lesser included offense of rape of a child. See T.C.A.
§ 40-18-110(f), (g). Tennessee Code Annotated section 40-18-110(g)(3) provides, “Sexual
battery and sexual battery by an authority figure are lesser included offenses of rape and
aggravated rape.” Similarly, Code section 40-18-110(g)(4) (2012) provides, “Aggravated
sexual battery is a lesser included offense of aggravated rape.” Thus, neither of these
statutory provisions directly addresses whether aggravated sexual battery involving a child
is a lesser included offense of rape of a child. We note that the offense that is now rape of
a child was previously a category of aggravated rape but was recodified in a separate
subsection of the Code, albeit before the enactment of Code section 40-18-110(g). See
T.C.A. §§ 39-13-502 (2010), Sent’g Comm’n Cmts.; 39-13-522 (rape of a child). We
likewise note that both aggravated rape and rape of a child involve the same
conduct–unlawful sexual penetration of a victim. In the case of aggravated rape, there are
various alternatives that qualify unlawful sexual penetration of a victim as aggravated rape.
 See id. § 39-13-502. In the case of rape of a child, the qualifier is that the unlawful sexual
penetration occur to a child. See id., § 39-13-522. Nevertheless, Code section 40-18-110(f)
and (g) took effect on July 1, 2009, and the offenses in this case occurred after that date, on
July 22 and 29, 2009. The legislature expressly provided the means for determining lesser
included offenses, and it excluded aggravated sexual battery as a lesser included offense of
rape of a child. We are obligated to follow its pronouncements. Cf. State v. David Lynn
Harrison, No. E2008-01082-CCA-R3-CD (Tenn. Crim. App. Aug. 17, 2010) (applying law
as it existed at the time of the offense, not the subsequent statutory enactment, to determine
whether an offense was a lesser included offense of another).

       Because the elements of aggravated sexual battery and rape of a child are not the
same and neither is a lesser included offense of the other, we conclude that the legislature
intended to permit multiple punishments and that they are not the same offense for double
jeopardy purposes. The Defendant is not entitled to relief on this basis.

                                      B. Due Process

       Despite there being no double jeopardy violation for convictions of aggravated sexual
battery and rape of a child, multiple convictions cannot be permitted if they offend due
process. Multiple convictions offend due process if one is “essentially incidental” to the
other. See, e.g., State v. Barney, 986 S.W.2d 545, 548 (Tenn. 1999). Regarding sexual
offenses, the Tennessee Supreme Court stated in Barney that




                                             -42-
       if the act in question directly facilitates or is merely incidental to the
       accompanying sexual conduct (such as, for example, applying lubricant to the
       area of intended copulation), convictions for both acts would be barred. If,
       however, the act in question is ‘preparatory’ only in the sense that it is
       intended to sexually arouse either the victim or the perpetrator, separate
       convictions are not barred.

Id. at 548 (citations omitted). The court stated that the following factors were relevant in
determining whether “conduct is directly facilitative, and thus incidental, or merely
preparatory in the sense of intending to arouse the victim or perpetrator”:

       1. temporal proximity--the greater the interval between the acts, the more
       likely the acts are separate;
       2. spatial proximity--movement or re-positioning tends to suggest separate
       acts;
       3. occurrence of an intervening event--an interruption tends to suggest separate
       acts;
       4. sequence of the acts--serial penetration of different orifices as distinguished
       from repeated penetrations of the same orifice tends to suggest separate
       offenses; and
       5. the defendant’s intent as evidenced by conduct and statements.

Id. at 548-49.

        In the present case, each of the previously identified rape of a child offenses occurred
within moments of its accompanying aggravated sexual battery offense. As to each pair,
there was no repositioning. They involved the same body parts. The touching was part of
the further effort to penetrate the victim. The nature of the conduct and the Defendant’s
statements support a conclusion that the Defendant had an intent to engage in sexual activity,
which he accomplished by touching a victim as a preparatory act to penetrating her. We
conclude that the aggravated sexual battery offenses were facilitative of, and thus incidental
to, the rape of a child offenses. Due process prohibits dual convictions, and the offenses
must be merged.

       The following convictions are affected:

       1.        Count 4, aggravated sexual battery involving the Defendant’s touching
                 A.G.’s genital area with his mouth or tongue, should have been merged
                 with Count 3, rape of a child involving the Defendant’s performing
                 cunnilingus on A.G. on July 22. The evidence demonstrates that the

                                              -43-
     Defendant’s touching A.G.’s genital area with his mouth and/or tongue
     involved the same conduct, body parts, and time as his performing
     cunnilingus on her.
2.   Count 6, aggravated sexual battery involving the Defendant’s touching
     M.A.’s genital area with his mouth or tongue, should have been merged
     with Count 5, rape of a child involving cunnilingus of M.A. on July 22.
     The evidence demonstrates that the Defendant’s touching M.A.’s
     genital area with his mouth and/or tongue involved the same conduct
     as his performing cunnilingus on her.
3.   Count 8, aggravated sexual battery involving the Defendant’s touching
     M.A.’s genital area with his hand or finger, should have been merged
     with Count 7, rape of a child involving digital penetration of M.A’s
     genital area on July 22. The evidence does not establish that the
     Defendant’s conduct constituted two separate offenses, rather than his
     touching her being incidental to the penetration.
4.   Count 12, aggravated sexual battery involving the Defendant’s touching
     M.A.’s vagina with his penis, should have been merged with Count 11,
     involving penile penetration of M.A.’s vagina on July 22. The
     evidence does not establish that the Defendant’s conduct constituted
     two separate offenses, rather than his touching her being incidental to
     the penetration.
5.   Count 15, aggravated sexual battery involving the Defendant’s touching
     A.G.’s genital area with his hand and/or finger, should have been
     merged with Count 14, rape of a child involving digital penetration of
     A.G.’s genital area on July 29. The evidence does not establish that the
     Defendant’s conduct constituted two separate offenses, rather than his
     touching her being incidental to the penetration.
6.   Count 17, aggravated sexual battery involving the Defendant’s touching
     A.G.’s genital area with his mouth and/or tongue, should have been
     merged with Count 16, rape of a child involving cunnilingus of A.G. on
     July 29. The evidence demonstrates that the Defendant’s touching
     A.G.’s genital area with his mouth and/or tongue involved the same
     conduct as his performing cunnilingus on her.
7.   Count 19, aggravated sexual battery involving the Defendant’s touching
     M.A.’s genital area with his mouth and/or tongue, should have been
     merged with Count 18, rape of a child involving cunnilingus of M.A.
     on July 29. The evidence demonstrates that the Defendant’s touching
     M.A.’s genital area with his mouth and/or tongue involved the same
     conduct as his performing cunnilingus on her.



                                   -44-
       8.     Count 21, aggravated sexual battery involving the Defendant’s touching
              M.A.’s genital area with his hand and/or finger, should have been
              merged with Count 20, rape of a child involving the Defendant’s digital
              penetration of M.A. on July 29. The evidence does not establish that
              the Defendant’s conduct constituted two separate offenses, rather than
              his touching her being incidental to the penetration.

The trial court should have merged these convictions as a function of due process, and its
failure to do so is plain error. The judgments for all of these counts must be vacated, and
the trial court should enter a single judgment for each pair, noting merger of the convictions
as noted above.

                                              V

        The Defendant contends that his effective fifty-year sentence is excessive. The State
counters that the Defendant has waived the issue because his brief does not provide adequate
argument, citations to authority, and references to the record, and that in any event, the
Defendant has failed to show that the sentence is improper. We conclude that the Defendant
is not entitled to relief.

        The Tennessee Supreme Court adopted a new standard of review for sentencing in
State v. Bise, 380 S.W.3d 682 (Tenn. 2012). Currently, length of sentence “within the
appropriate statutory range [is] to be reviewed under an abuse of discretion standard with a
‘presumption of reasonableness.’” Id. at 707. In determining the proper sentence, the trial
court must consider: (1) any evidence received at the trial and 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, (5) any mitigating or
statutory enhancement factors, (6) statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee, (7) any
statement that the defendant made on his own behalf, and (8) the potential for rehabilitation
or treatment. T.C.A. §§ 40-35-102, -103, -210; see State v. Ashby, 823 S.W.2d 166, 168
(Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

       Challenges to a trial court’s application of enhancement and mitigating factors are
reviewed under an abuse of discretion standard. Bise, 380 S.W.3d at 707. We must apply
“a presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” Id. “[A] trial court’s
misapplication of an enhancement or mitigating factor does not invalidate the sentence
imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.” Id.
at 706. “So long as there are other reasons consistent with the purposes and principles of

                                             -45-
sentencing, as provided by statute, a sentence imposed by the trial court within the
appropriate range should be upheld.” Id.

       At the sentencing hearing, Charles Brandon testified that he prepared the presentence
report. The report reflected that the twenty-eight-year-old Defendant had no prior criminal
record and had a pending sexual exploitation of a minor charge. He had “multiple write
up/disciplinaries” from his pretrial detention at the county jail. He was a high school
graduate and had completed some college work. He reported his mental health as “good”
and had been evaluated for competency to stand trial. A medical doctor’s letter attached to
the report stated that he was diagnosed with mild Tourett Syndrome at age eight. He began
using alcohol around age fifteen and stated he was a social drinker. He used marijuana from
ages sixteen until twenty-four but quit due to his employment. His prior employment
included apartment maintenance, stagehand, and Sheriff’s Department detention employee.

       Estelle Ray, the Defendant’s grandmother, testified that she had known the Defendant
since his childhood. She said he had Tourett Syndrome, a brain disorder that caused
uncontrollable movements, grunts, and noises. She said he was diagnosed around age three
and took medication. She said he had difficulty transitioning from private to public school
because he was bullied and finished his secondary education through home schooling. She
said the Defendant was industrious and worked from a young age. She said he was kind and
helpful. She was surprised when she learned of the allegations and said they were out of
character for him.

       Candhl Williamson, the Defendant’s younger sister, testified that the Defendant was
outgoing and helpful, particularly to elderly people. She was surprised by the allegations and
said they were inconsistent with his lifestyle. She said that people sometimes made fun of
the Defendant due to his Tourett Syndrome. She said he had attended church regularly since
he was sixteen.

       Amanda Miller testified that she and the Defendant had been friends for thirteen years
and had been neighbors. She said that she had never had any concerns about the Defendant
being around her children, who were nine-and-one-half and three years old. She said her
brother was the Defendant’s best friend but that he was unable to attend the hearing because
he was a Marine. She said the Defendant was always helpful to her when they were
neighbors. She was surprised by the allegations and would not have allowed her children
around him if she had held any concerns.

       In imposing the sentences, the trial court stated that it had considered the evidence,
the presentence report, the arguments and alternatives regarding sentencing, the nature and
characteristics of the conduct, the statutory mitigating and enhancement factors, and the

                                             -46-
Defendant’s potential or lack of potential for rehabilitation. The court found no applicable
statutory mitigating factors. It noted the Defendant’s diagnosis of Tourett Syndrome but
found that it did not impact the crimes. Regarding the enhancement factors, the court found
that the Defendant had a prior history of criminal behavior based upon the evidence of his
marijuana usage. See T.C.A. § 40-35-113(1) (2010) (amended 2012). It also found that the
Defendant possessed or employed a firearm during the commission of the offense based upon
the evidence that the victims were afraid of the handgun on the night stand. See id. § -
113(9). The court found that the Defendant abused a position of trust, noting that he was a
family friend of both victims, that he used the church youth group as a means to access the
victims, that he gave gifts to the victims, that he essentially babysat them, and that he used
his friendship with the victims’ mothers to mislead them both into believing the other had
consented to the victims’ spending the night at his house. See id. § -113(14). The trial court
set the Defendant’s sentences for the Class B felonies at the maximum of twelve years each,
to be served at 100% as a violent offender. For the rape of a child convictions, the trial court
imposed twenty-five-year sentences to be served at 100% as a child rapist, as required by the
statute in effect at the time. See T.C.A. § 39-13-522(a)(2)(A) (2010) (amended 2011). The
eleven month, twenty-nine day sentence for exhibiting harmful material to a minor was the
length required by statute. See id. §§ 40-35-111(e)(1) (2010), 40-35-302(b) (2010) (amended
2011, 2012).

        In imposing partially consecutive sentences, the trial court found that the Defendant
was convicted of two or more statutory offenses involving sexual abuse of a minor. See
T.C.A. § 40-35-115(5) (2010). The court noted the involvement of two victims, the number
of offenses, the different types of sexual abuse involved, and the relationship between the
victims and the Defendant. It noted that the time span of the abuse was about a week,
although the victims did not immediately reveal the abuse to law enforcement. It also noted
that no proof existed regarding the extent of any mental and physical damage to the victims.
The court also found that the Defendant was an offender whose record of criminal activity
was extensive. See id. § -115(4). The court relied on the conviction offenses to support its
finding in this regard. The court imposed the sentences for each victim concurrently but
consecutively as to the victims separately, for an effective fifty-year sentence.

        The State contends that the Defendant has waived appellate review of the trial court’s
sentencing decision because his brief is inadequate and that it cannot respond adequately to
an undefined and unsupported argument. We agree with the State that the Defendant failed
to include any citations to the record, and we note that the argument provided is of a general
nature that the sentences were not appropriate under the facts of the case. The Defendant has
not identified any specific component of the trial court’s ruling as erroneous or any specific
facts that compel a different result. The Defendant’s citations to authority are of a general



                                              -47-
nature, as well. Although we understand the State’s dilemma in responding to the appellant’s
brief, we will address the issue.

        There is no justiciable issue regarding the length of the rape of a child and exhibiting
harmful material to a minor sentences because they were the length required by statute.
Regarding the twelve-year sentences for aggravated sexual battery, the Defendant has not
identified any principles or factors that the court considered inappropriately or failed to
consider. Although we doubt the applicability of enhancement factor (9) regarding the
Defendant’s use of a firearm during the commission of the offense despite the lack of proof
that the Defendant positioned the handgun on the nightstand or otherwise employed it in
order to intimidate the victims during the offense, misapplication of an enhancement factor
does not equate with an abuse of discretion in sentencing, provided there are “other reasons
consistent with the purposes and principles of sentencing, as provided by statute[.]” See Bise,
380 S.W.3d at 706. We note the trial court’s consideration of the relevant statutory
guidelines and its findings regarding other enhancement factors, particularly its emphasis on
the Defendant’s abuse of trust in order to facilitate the crimes. We conclude that the trial
court did not abuse its discretion in sentencing the Defendant to twelve years for each
aggravated sexual battery conviction.

       The remaining question is the propriety of consecutive sentencing. The determination
of concurrent or consecutive sentences is a matter left to the discretion of the trial court and
should not be disturbed on appeal absent an abuse of discretion. State v. Blouvet, 965
S.W.2d 489, 495 (Tenn. Crim. App. 1997). Consecutive sentencing is guided by Tennessee
Code Annotated section 40-35-115(b) (2010), which states in pertinent part that the court
may order sentences to run consecutively if it finds by a preponderance of the evidence that:

       (4) The defendant is an offender whose history of criminal activity is extensive
       ...
       [or]
       (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
       sexual acts and the extent of the residual, physical and mental damage to the
       victim or victims[.]

Only one criterion is needed to support consecutive sentences. State v. Mickens, 123 S.W.3d
355, 394 (Tenn. Crim. App. 2003).




                                              -48-
       The trial court based its finding of extensive criminal activity on the offenses in the
present case, not any prior history of criminal activity. This court has interpreted the
extensive criminal activity classification as applying to defendants who have an extensive
prior history of criminal behavior, not just an extensive number of convictions before the
court at sentencing. See, e.g., State v. Palmer, 10 S.W.3d 638, 648 (Tenn. Crim. App. 1999).
This classification does not apply to the Defendant.

        Regarding the multiple sexual offender classification, the record reflects that the
Defendant’s convictions involve more than one victim. The trial court considered the factors
listed in section 40-35-115(b)(5) and concluded that the aggravating circumstances of the
relationship between the Defendant and the numerous violations on multiple occasions
warranted partial consecutive sentencing. The evidence supports the trial court’s ruling.
Because the multiple sexual offender classification supports consecutive sentencing, the
Defendant is not entitled to relief.

                                              VI

        The State notes in its brief that the judgment for Count 6 contains a clerical error
because it states that the sentence is to run concurrently with “Counts 6-8,” although the
record otherwise reflects that the court’s intent was for the sentence for Count 6 to be served
concurrently with Counts 5, 7, and 8. The State suggests that this court remand the case to
the trial court for correction of the clerical error. Because we have vacated the judgment for
Count 6 and ordered that a single judgment be entered that reflects merger of Count 6 into
Count 5, this issue is resolved.

        In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed for Counts 1, 2, 10, 13, 23, 24, and 25. The judgment for Count 26 is
vacated, and the charge is dismissed. The judgments for Counts 3, 4, 5, 6, 7, 8, 11, 12, 14,
15, 16, 17, 18, 19, 20, and 21 are vacated, and the trial court is ordered to enter judgments
reflecting merger of convictions as explained in this opinion.




                                           _ _ _____________________________ _ _ _ _
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




                                             -49-
