State of Tennessee v. James Wallace Norton

03/08/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 11, 2018

STATE OF TENNESSEE v. JAMES WALLACE NORTON

Appeal from the Criminal Court for Sumner County

No. CR635-2015, CR722-2015 Dee David Gay, Judge

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No. M2018-00346-CCA-R3-CD

___________________________________

A Sumner County grand jury indicted the defendant, James Wallace Norton, with ten

counts of sexual exploitation of a minor over one hundred images, twenty-three counts of

sexual exploitation of a minor, and one count of aggravated sexual exploitation of a

minor. Following trial, a jury found the defendant guilty of all counts, and the trial court

imposed an effective sentence of twenty years. On appeal, the defendant argues the trial

court erred in consolidating his two indictments, declining to force the State to make an

election regarding which images constituted aggravated sexual exploitation of a minor,

admitting testimony regarding the defendant’s internet search history, and admitting the

cell phone and contraband images without a proper showing of the chain of custody. He

also challenges the sufficiency of the evidence to support his convictions and the

applicability of the enhancement factors used in determining his sentence. After

reviewing the record and considering the applicable law, we affirm the judgments of the

trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.

and CAMILLE R. MCMULLEN, JJ., joined.

Mike Anderson, Gallatin, Tennessee, for the appellant, James Wallace Norton.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant

Attorney General; Ray Whitley, District Attorney General; and Tara Wyllie, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

During March 2015, Special Agent Kathryn Gamble with the Department of

Homeland Security (“DHS”) was working undercover, investigating chatrooms on Kik, a

cell phone application used to exchange texts, pictures, and videos. At the time, a chat

group on Kik could only be found by searching for the exact name of the group or by

receiving an invitation to join. On March 30, 2015, Special Agent Gamble was observing

a chat group entitled “#kindergarden,” which was being used to share sexually explicit

pictures of children. She discovered a user named “jwnorton43” posted eight sexually

explicit images of children to the group on March 24, 2015.

Following the discovery of the pictures, Special Agent Gamble issued a summons

to Kik to produce information related to “jwnorton43”’s account. She received the IP

addresses associated with his device, and discovered they were located outside of

Nashville. She next issued a summons to Comcast, the internet provider that owned the

account’s two most frequently used IP addresses. One IP address came back to the

defendant’s residence, and the second came back to David Norton in Hendersonville.

Special Agent Gamble then contacted a DHS agent in Nashville, Special Agent Jonathan

Hendrix, to continue the investigation.

After reviewing the case file, Special Agent Hendrix determined the case did not

meet the federal threshold and contacted Detective Ron Brawner at the Sumner County

Sheriff’s Office to pass on the information, although DHS continued to assist in the

investigation. On May 13, 2015, Special Agent Hendrix and Detective Brawner obtained

a search warrant for the defendant’s residence in Millersville, which they executed early

the next morning.

While the Sheriff’s Department entered the residence, Special Agent Hendrix

remained outside with the defendant, who was at home with his wife and two daughters.

Detective Brawner read the defendant his Miranda rights, which the defendant verbally

waived, prior to beginning the execution of the search warrant. The defendant told

Special Agent Hendrix he had been using Kik for “probably two or three months,” and,

because Kik is a mobile application, the only place he stored sexually explicit images of

children was on his cell phone. He estimated police would find “thirty, forty images” on

his phone. The defendant stated he would repost some of the pictures he received via

Kik, but not all of them. The defendant also stated that no one else had access to his cell

phone and that his wife did not know he was looking at these images online. Special

Agent Hendrix showed the defendant the pictures “jwnorton43” distributed in the

“#kindergarden” chat group, and the defendant recognized six of the eight pictures. In

addition, Special Agent Hendrix noticed the profile picture used by “jwnorton43” on Kik

matched the tattoo on the defendant’s left arm.

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Following the execution of the search warrant, Special Agent Hendrix obtained

control of the defendant’s cell phone for a forensic examination, and turned the phone

over to Special Agent Clint Cantrell, a DHS forensic agent based in Chattanooga. The

phone was accompanied by a chain of custody report used to both identify the phone and

document who handled the evidence. Special Agent Cantrell made arrangements for

Detective Mike Tilley, a DHS liaison with the Chattanooga Police Department, to

complete the forensic examination of the defendant’s phone.

Detective Tilley began his forensic examination by taking pictures of the

defendant’s phone, including pictures of the phone’s serial numbers. He then connected

the phone to a Universal Forensics Extraction Device to extract the phone’s data,

including deleted and hidden data. During the examination, Detective Tilley discovered

“over three thousand images” and “between twenty and thirty” videos depicting minors

engaged in sexually explicit activity. The images were both saved to various folders and

found in the file cache areas. Because of the way video files are stored on the phone, “at

least a portion” of every video Detective Tilley found was actually viewed on the phone.

Each of the three thousand seventy-four images and twenty-three videos were shown to

the jury.

Detective Tilley’s examination revealed the Kik messaging application was

installed on the defendant’s phone, and the username “jwnorton43” was used to log in.

The defendant’s text conversations on Kik revealed he asked other users to “send [their]

youngest.” In addition, Detective Tilley recovered some of the search terms the

defendant used in Google: “young amateur sex” and “nude teen sex pictures.” Following

Detective Tilley’s forensic examination, the phone and forensic examination report were

returned to Detective Brawner via Special Agent Cantrell, Special Agent Wayne Dickey,

and Special Agent Hendrix.

On August 6, 2015, a Sumner County grand jury returned two indictments against

the defendant. The first charged him with ten counts of sexual exploitation of a minor

over one hundred images and twenty-three counts of sexual exploitation of a minor, and

the second charged him with one count of aggravated sexual exploitation of a minor.

Prior to trial, the State filed a motion to consolidate the defendant’s indictments.

Following a hearing, the trial court granted the motion, finding both mandatory and

permissive joinder allowed the indictments to be consolidated for trial.

At trial, the State called Special Agent Kathryn Gamble, Special Agent Jonathan

Hendrix, Special Agent Clint Cantrell, Detective Ron Brawner, and Detective Mike

Tilley as witnesses, and all rendered testimony consistent with the foregoing. The

defendant’s wife, Ashley Norton, testified she did not have access to the defendant’s

phone because it was never out of his possession, and she was not aware the defendant

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was viewing or posting sexually explicit pictures of children on the internet. After the

police searched her home, the defendant told Ms. Norton “he made a big mistake and

wish[ed] he could take it back.”

The defendant declined to present evidence. Following deliberations, the jury

found the defendant guilty of all counts. The trial court imposed a sentence of ten years

to be served at 100 percent for Counts 1-10, sexual exploitation of a minor over one

hundred images, four years to be served at 30 percent for Counts 11-33, sexual

exploitation of a minor, and six years to be served at 30 percent for Count 34 aggravated

sexual exploitation of a minor. Specifically, Counts 1-10 were to be served concurrently

with each other. Counts 11-33 were to be served concurrently with each other, but

consecutively to Counts 1-10, and Count 34 would run consecutively to Counts 1-33, for

an effective sentence of twenty years.

The defendant filed a timely motion for new trial and an amended motion for new

trial, arguing the evidence was insufficient to support the defendant’s convictions and the

trial court erred in granting the State’s motion to consolidate, admitting the cell phone

and contraband images without a proper showing of the chain of custody, admitting

testimony regarding the defendant’s internet search history, refusing to question the

jurors when they became visibly upset after viewing the videos introduced by the State,

and refusing to force the State to make an election as to which images were related to the

charge of aggravated sexual exploitation of a minor. The trial court denied the motion,

and this timely appeal followed.

Analysis

I. Consolidation

On appeal, the defendant first argues the trial court erred in granting the State’s

motion to consolidate his two indictments. The State contends both mandatory and

permissive joinder were appropriate. We agree with the State.

The defendant was charged with the instant crimes in two separate indictments.

Indictment number CR722-2015, returned August 6, 2015, charged the defendant with

aggravated sexual exploitation of a minor on March 24, 2015.1 Indictment number

CR635-2015, returned August 6, 2015, charged the defendant with ten counts of sexual

exploitation of a minor over one hundred images between January 1, 2015 and May 14,

2015, and twenty-three counts of sexual exploitation of a minor between January 1, 2015

1

The original indictment incorrectly listed the date of offense as May 14, 2015.

However, prior to trial, the indictment was amended to include the correct date.

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and May 14, 2015. Prior to trial, the State filed a motion to consolidate the offenses in

the two indictments pursuant to Tennessee Rule of Criminal Procedure 13.

In granting the State’s motion to consolidate, the trial court stated the following:

[W]e have the same phone, we have the same images, we have the

same period of time. So I find that it’s based on the same conduct or

[arose] from the same criminal episode. It can’t be anything but that. It’s

the same phone. It’s the same type of images in the same place on the

phone. It’s in B, within the jurisdiction of a single court, and C, . . . known

to the appropriate prosecuting official at the time of the return of the

indictments, presentment, or information.

I find that severance is not appropriate here to promote a fair

determination of the [d]efendant’s guilt or innocence. Each of these

pictures will be offensive to the viewer and I think it’s important here for

the jury to see the entire scheme of images that the [d]efendant was

possessing.

I believe that these are offenses that are part of a larger continuing

plan or conspiracy, and that qualifies under Harris, and Spicer, under that

criteria. I also find . . . that they are part of the same or similar character.

I’ve just described that, same phone, same images from the phone, all

offensive, all of naked children in a pornographic sense. Lastly, I must

look at whether the evidence -- whether evidence of each offense is relevant

to some material issue in the trial of all the other offenses. Now, the

General did not specifically state this, other than concluding that there was

a material issue. I find, if you look at the pictures separately, that the

pictures show a common scheme or plan to possess and share some of this

with others. So, you’ve got motive, intent. You’ve got absence of mistake

here, and it -- I think it completes the whole picture of what the [d]efendant

is doing, and I can’t see how one batch would not be admissible with the

other batch.

Lastly, I find, if we’re looking at this as a permissive joinder, that

the probative value of the evidence is not outweighed by the prejudicial

effect. We’re going to have numerous pictures here, and the prejudicial

effect is going to take place after they see one picture.

A trial court’s decision to consolidate offenses is reviewed on appeal for an abuse

of discretion. State v. Garrett, 331 S.W.3d 392, 401 (Tenn. 2011). We will conclude that

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a trial court abused its discretion when it applied incorrect legal standards, reached an

illogical conclusion, based its ruling on a clearly erroneous assessment of the evidence, or

applied reasoning that causes an injustice to the complaining party. Id. In reviewing a

trial court’s decision to consolidate offenses, we are mindful that,

[B]ecause the trial court’s decision of whether to consolidate

offenses is determined from the evidence presented at the hearing, appellate

courts should usually only look to that evidence, along with the trial court’s

findings of fact and conclusions of law, to determine whether the trial court

abused its discretion by improperly joining the offenses.

Spicer v. State, 12 S.W.3d 438, 445 (Tenn. 2000).

Tennessee Rule of Criminal Procedure 13(a) allows a court to consolidate separate

indictments, presentments, or informations for trial “if the offenses and all defendants

could have been joined in a single indictment, presentment, or information pursuant to

Rule 8.” Tennessee Rule of Criminal Procedure 8 provides the circumstances under

which offenses may be joined:

(a) Mandatory Joinder of Offenses. Two or more offenses shall be joined

in the same indictment, presentment, or information, with each offense

stated in a separate count, or the offenses consolidated pursuant to Rule 13,

if the offenses are based on the same conduct or arise from the same

criminal episode, within the jurisdiction of a single court, and known to the

appropriate prosecuting official at the time of the return of the

indictment(s), presentment(s), or information(s). A defendant shall not be

subjected to separate trials for multiple offenses falling within Rule 8(a)(1)

unless they are severed pursuant to Rule 14.

(b) Permissive Joinder of Offenses. Two or more offenses may be joined in

the same indictment, presentment, or information, with each offense in a

separate count, or consolidated pursuant to Rule 13, if the offenses

constitute parts of a common scheme or plan or if they are of the same or

similar character.

If two or more offenses are joined or consolidated pursuant to Rule 8(b), the defendant

has a right to severance unless two criteria are met: (1) “the offenses are parts of a

common scheme or plan” and (2) “the evidence of one would be admissible in the trial of

the others.” Tenn. R. Crim. P. 14(b)(1).

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Here, the defendant argues mandatory joinder is improper because the offenses are

not based on the same conduct or criminal episode. However, the defendant’s possession

of sexually explicit images of children constitutes part of the same conduct or criminal

episode as the distribution of sexually explicit images of children because he necessarily

had to possess the images in order to distribute them. See State v. Marlon Boyd, No.

W2017-00791-CCA-R3-CD, 2018 WL 3831329, at *5 (Tenn. Crim. App. Aug. 10,

2018), perm. app. denied (Tenn. Dec. 5, 2018). In addition, the offenses were within the

jurisdiction of a single court and known to the Sumner County District Attorney at the

time the indictments were returned. Therefore, the trial court did not err in determining

the offenses were mandatorily joined under Rule 8(a).

Moreover, permissive joinder was also appropriate in this case. An undercover

operation by the Department of Homeland Security revealed the defendant distributed

eight sexually explicit images of children through the Kik mobile application on his cell

phone on March 24, 2015. After executing a search warrant, police discovered over three

thousand sexually explicit images of children on the defendant’s cell phone between

January 1, 2015, and May 14, 2015. The images the defendant possessed and distributed

involved children in sexually explicit situations, he used the same cell phone for both

offenses, and they were committed during the same time period. Following the pretrial

hearing in this matter, the trial court determined the two offenses were of the same or

similar character and part of a larger, continuing plan or conspiracy; evidence of each

crime would be admissible at the trial of the other; and the probative value of the

evidence outweighed any prejudicial effect. The record fully supports these

determinations by the trial court. The defendant is not entitled to relief on this issue.

II. Election

The defendant next argues the trial court erred in failing to force the State to make

an election regarding the images it was relying on to establish the offense of aggravated

sexual exploitation of a minor. The State contends an election was not necessary. We

agree with the State.

Prior to closing arguments, the following exchange occurred outside the presence

of the jury:

[PROSECUTOR]: Judge, I don’t think I would like that as number --

Count No. 34. I mean, that’s obviously the pictures that were sent in the

Kik chatroom, but I don’t think I’ve said that to the Jury. I think -- the rest

of them, I think I covered for election purposes.

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THE COURT: Okay, do you want to make a statement to the Jury about

that?

[PROSECUTOR]: Do you want me to make a statement --

THE COURT: No, I think it’s pretty obvious. I mean, based on his

statement and the evidence that’s been presented, I mean that’s one kind of

a general count that covers everything.

[PROSECUTOR]: That’s true. I just -- I know I’m supposed to make an

election in these types of cases. I just want to cover that for the record, that

Count 34 was the -- were the original pictures that we put in through

Kathryn Gamble.

THE COURT: Okay.

[PROSECUTOR]: So that’s --

THE COURT: I don’t think that’s necessary, General.

[PROSECUTOR]: Okay, thank you.

During closing argument, the State made the following remarks:

As to aggravated sexual exploitation of a minor, the State must have

proven beyond a reasonable doubt the existence of the following essential

elements: That the [d]efendant did promote and distribute material which

includes a minor engaged in sexual activity, that the [d]efendant did so

knowingly. This refers to the last count, to the photographs that were

uploaded to the Kik chatroom “[#]kindergarden.” You saw those

photographs. They were presented to you by Special Agent Kathryn

Gamble. I would submit to you that those were minors engaged in sexual

activity.

In Tennessee, a defendant is entitled to a unanimous jury verdict. State v. Brown,

992 S.W.2d 389, 391 (Tenn. 1999) (citing State v. Shelton, 851 S.W.2d 134, 137 (Tenn.

1993); Tidwell v. State, 922 S.W.2d 497, 501 (Tenn. 1996)). Therefore, “when the

evidence indicates the defendant has committed multiple offenses against a victim, the

prosecution must elect the particular offense as charged in the indictment for which the

conviction is sought.” Brown, 992 S.W.2d at 391 (citations omitted). Requiring an

election “safeguards the defendant’s state constitutional right to a unanimous jury verdict

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by ensuring that jurors deliberate and render a verdict based on the same evidence.” State

v. Johnson, 53 S.W.3d 628, 631 (Tenn. 2001) (citing Brown, 992 S.W.2d at 391).

However, when the evidence does not establish that multiple offenses have been

committed, the need to make an election never arises. State v. Adams, 24 S.W.3d 289,

294 (Tenn. 2000).

Here, the State offered proof of only one act of distributing sexually explicit

images of children. Special Agent Kathryn Gamble testified the defendant uploaded

eight images to the “#kindergarden” chat group on March 24, 2018, and these images

were shown to the jury. No other proof was submitted which could be construed to fit

aggravated sexual exploitation of a minor. An election on this charge was not necessary.

Adams, 24 S.W.3d at 294. Moreover, the State clearly outlined for the jury the facts upon

which the State sought a conviction for aggravated sexual exploitation of a minor. See

State v. Terrence Lamont McDonald, No. E2013-02524-CCA-R3-CD, 2015 WL 154251,

at *16 (Tenn. Crim. App. Oct. 21, 2014), perm. app. denied (Tenn. May 14, 2015)

(holding the failure to make an election is harmless error when the State effectively

makes an election during closing argument). The defendant is not entitled to relief on

this issue.

III. Search History

Next, the defendant argues the trial court erred in admitting testimony regarding

the defendant’s internet search history. The defendant contends the terms “young

amateur sex” and “nude teen sex” cannot be calculated to find anything other than legal

adult pornography. The State contends the evidence was properly admitted. We agree

with the State.

Rule 404(b) of the Tennessee Rules of Evidence generally prohibits “[e]vidence of

other crimes, wrongs, or acts . . . to prove the character of a person in order to show

action in conformity with the character trait.” State v. Jones, 450 S.W.3d 866, 891 (Tenn.

2014). Rule 404(b) allows such evidence in limited circumstances for purposes other

than proving action in conformity with a character trait. Id. The rule sets out certain

procedural requirements the trial court must follow:

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the

record the material issue, the ruling, and the reasons for admitting the

evidence;

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(3) The court must find proof of the other crime, wrong, or act to be clear

and convincing; and

(4) The court must exclude the evidence if its probative value is outweighed

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b)(1)-(4). The comments to Rule 404(b) provide that evidence of

other crimes, wrongs, or acts should be excluded unless relevant to an issue other than the

character of the defendant, such as identity, motive, intent, or absence of mistake. Jones,

450 S.W.3d at 891; see also Tenn. R. Evid. 404, Advisory Comm’n. Cmt.

Trial courts are encouraged to take a “restrictive approach [to] [Rule] 404(b) . . .

because ‘other act’ evidence carries a significant potential for unfairly influencing a

jury.” State v. Dotson, 254 S.W.3d 378, 387 (Tenn. 2008). In Dotson, our Supreme

Court explained the policy in favor of exclusion:

The rationale behind the general rule is that admission of other

wrongs carries with it the inherent risk of the jury convicting a defendant of

a crime based upon his or her bad character or propensity to commit a

crime, rather than the strength of the proof of guilt on the specific charge . .

. . As this Court has consistently cautioned, the jury should not “be tempted

to convict based upon a defendant’s propensity to commit crimes rather

than . . . evidence relating to the charged offense.”

Id. Provided the trial court substantially complied with the procedure of Rule 404(b), the

trial court’s decision to admit or exclude evidence will not be overturned on appeal

absent an abuse of discretion. Jones, 450 S.W.3d at 891. A trial court abuses its

discretion when it applies an incorrect legal standard, reaches an illogical conclusion,

bases its decision on a clearly erroneous assessment of the evidence, or employs

reasoning that causes an injustice to the complaining party. State v. Banks, 271 S.W.3d

90, 116 (Tenn. 2008). If the trial court failed to substantially comply with the strict

procedural requirements of Rule 404(b), then no deference is given to the trial court’s

decision to admit or exclude evidence, and this Court will determine admissibility based

on the evidence presented at the jury out hearing. State v. DuBose, 953 S.W.2d 649, 652

(Tenn. 1997).

Prior to trial, the defendant requested a hearing to determine what 404(b) evidence

the State could admit at trial. At the hearing, defense counsel told the trial court he did

not believe the State intended to introduce evidence under 404(b), and the trial court

granted the defendant’s motion prohibiting the State from introducing 404(b) material at

trial.

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At trial, the State asked Detective Mike Tilley about Google searches found on the

defendant’s phone. The defendant objected, and the trial court held a jury out hearing to

determine whether testimony about the defendant’s internet search history was

admissible. During the jury out hearing, the State argued the Google searches for “young

amateur sex” and “nude teen sex” were made within the indictment period. The searches

showed the defendant did not receive sexually explicit images of children by accident, as

the defendant had insinuated during opening argument. Instead, the State argued, they

showed he was actively seeking sexually explicit images of children. The defendant

argued the searches simply showed the defendant was looking for legal adult

pornography. The trial court ruled the testimony regarding the defendant’s internet

search history was admissible to show intent and knowledge. The trial court also ruled

the proof was clear and convincing, and the probative value outweighed any danger of

unfair prejudice. In particular, the trial court noted the jury would be viewing three

thousand images and twenty-three videos later in the trial, and the mention of two Google

searches would not create unfair prejudice in light of the remaining evidence. The trial

court substantially complied with the requirements of Rule 404(b), and its ruling will be

reviewed for abuse of discretion.

The defendant first argues the trial court erred in holding a 404(b) hearing during

the trial because it had previously excluded all 404(b) material during a pre-trial hearing.

However, a trial court is free to revisit a pre-trial ruling on 404(b) material if the need

arises. State v. Gilley, 173 S.W.3d 1, 6 (Tenn. 2005) (noting 404(b) criteria often

“require consideration of the evidence presented at trial” and, therefore, pretrial rulings

“may need to be reconsidered or revised based on the evidence presented at trial”).

Although the defendant also argues the internet searches were unfairly prejudicial

because they were meant to find legal adult pornography, the search terms introduced at

trial, “young amateur sex” and “nude teen sex,” are suggestive of someone who is

interested in finding sexually explicit images of minors. See State v. Ryan Patrick

Broadrick, No. M2017-01136-CCA-R3-CD, 2018 WL 4203883, at *1, 14 (Tenn. Crim.

App. June 20, 2018) (noting the defendant’s internet search history, which included the

websites getmoreteens.com and nakedyounggirl.com, supported the assertion that he was

seeking child pornography); State v. Aguilar, 437 S.W.3d 889, 896, 903 (Tenn. Crim.

App. 2013) (holding the defendant’s searches for “jailbait girls,” “virgin porn,” and “teen

jailbait porn” “evinced that he knowingly sought out child pornography”). In addition, a

defendant’s internet history may be used to determine whether he knowingly possessed

the material and whether the material depicted a minor. Tenn. Code Ann. §§ 39-17-

1003(c), -1004(a)(3). Therefore, testimony of the defendant’s internet search history was

relevant and probative to the issue of the defendant’s intent and knowledge, and the

probative value of this evidence was not outweighed by the danger of unfair prejudice.

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As such, the trial court acted within its discretion in admitting the testimony. The

defendant is not entitled to relief on this issue.

IV. Chain of Custody

The defendant next argues the trial court erred in admitting into evidence the cell

phone and images contained therein without a proper showing of the chain of custody.

The defendant also contends the admission of the DHS chain of custody form was

erroneous. The State contends the trial court exercised proper discretion in finding the

defendant’s cell phone properly authenticated and in admitting the chain of custody form.

We agree with the State.

A. Testimony

Rule 901(a) requires evidence be authenticated or identified as a condition

precedent to its admissibility. Tenn. R. Evid. 901(a). “[A] witness must be able to

identify the evidence or establish an unbroken chain of custody,” but absolute certainty is

not required. State v. Kilpatrick, 52 S.W.3d 81, 87 (Tenn. Crim. App. 2000) (internal

citation omitted). The purpose of this requirement is to “demonstrate that there has been

no tampering, loss, substitution, or mistake with respect to the evidence.” State v.

Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993). The trial court needs only

reasonable assurance of the identity and integrity of the sample in order to admit it into

evidence. Ritter v. State, 462 S.W.2d 247, 250 (Tenn. 1970). If the facts and

circumstances that surround tangible evidence reasonably establish the identity and

integrity of the evidence, the trial court should admit the item into evidence. State v.

Cannon, 254 S.W. 2d 287, 295 (Tenn. 2008). We review challenges to the chain of

custody of evidence under the abuse of discretion standard. State v. Scott, 33 S.W.3d

746, 752 (Tenn. 2000).

The defendant contends the absence of Special Agent Wayne Dickey’s testimony

was fatal to the State’s chain of custody. We disagree. In this case, the chain of custody

evidence shows the following: Special Agent Hendrix met with Special Agent Cantrell

and turned over the defendant’s cell phone. Special Agent Cantrell brought the phone to

Detective Tilley, who performed the forensic examination. After the examination was

completed, Detective Tilley gave the phone and forensic report to Special Agent Cantrell,

who then passed them to Special Agent Wayne Dickey. Special Agent Dickey brought

the phone and report to Special Agent Hendrix, who returned them to Detective Brawner.

The State provided an unbroken chain of custody between law enforcement

gaining possession of the cell phone until the forensic examination. Although Special

Agent Dickey did not testify at trial, it does not prevent the phone and report from being

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admissible. Evidence is not necessarily precluded from admission if the State fails to call

all of the witnesses who handled it. See State v. Johnson, 673 S.W.2d 877, 881 (Tenn.

Crim. App. 1984). Instead, Rule 901 is satisfied when the “beginning and ending ‘links’

of a chain of custody” are presented with no evidence of tampering in between. State v.

Terry Scott, No. E2003-00360-CCA-R3-CD, 2003 WL 22326980, at *3 (Tenn. Crim.

App. Oct. 9, 2003), no perm. app. filed. The testimony at trial clearly established the

chain of custody from the time the cell phone came into the possession of the authorities

until its forensic examination by Detective Tilley, and, therefore, the trial court did not

abuse its discretion in admitting the evidence.

The defendant also notes Special Agent Cantrell expressed doubt as to the location

of his meeting with Special Agent Hendrix, stating it was either Manchester or Nashville,

while Special Agent Hendrix unequivocally testified he met Special Agent Cantrell in

Manchester. By its finding of guilt as to the defendant’s charges, the jury resolved any

inconsistencies in testimony in favor of the State. The defendant is not entitled to relief

on this issue.

B. Chain of Custody Form

The defendant also attacks the DHS chain of custody form admitted into evidence

during Special Agent Hendrix’s testimony. The defendant argues the form is more akin

to a police report and should not have been admitted under Rule 803(6). The State

contends it was properly admitted as a business record. We agree.

The Tennessee Rules of Evidence define hearsay as “a statement, other than one

made by the declarant while testifying at trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Tenn. R. Evid. 801(c). Generally, hearsay is inadmissible,

but there are numerous exceptions to this rule, including an exception for records of

regularly conducted business. Tenn. R. Evid. 802 and 803(6). A trial court’s findings of

fact and credibility determinations regarding hearsay are binding on this Court unless the

evidence preponderates against them. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn.

2015). However, determinations regarding whether a statement is hearsay and whether a

hearsay exception applies are questions of law and subject to de novo review. Id.

Tennessee Rule of Evidence 803(6) provides that the following is not excluded by

the hearsay rule:

Records of Regularly Conducted Activity. A memorandum, report, record,

or data compilation, in any form, of acts, events, conditions, opinions, or

diagnoses made at or near the time by or from information transmitted by a

person with knowledge and a business duty to record or transmit if kept in

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the course of a regularly conducted business activity and if it was the

regular practice of that business activity to make the memorandum, report,

record, or data compilation, all as shown by the testimony of the custodian

or other qualified witness or by certification that complies with Rule

902(11) or a statute permitting certification, unless the source of

information or the method or circumstances of preparation indicate lack of

trustworthiness. The term “business” as used in this paragraph includes

business, institution, profession, occupation, and calling of every kind,

whether or not conducted for profit.

At trial, the State admitted into evidence a DHS chain of custody form through the

testimony of Special Agent Hendrix. The form, which accompanied the defendant’s cell

phone at all times, included entries from each law enforcement official who handled the

evidence. Special Agent Hendrix testified he created the form, it is normally created in

the regular course of business, each person’s entries are dated with the time and date the

phone changed possession, and it is DHS policy to create the form each time a new piece

of evidence is handled. The form was admitted, over the defendant’s objection, as a

business record.

The defendant argues the chain of custody form is more akin to a police report

and, therefore, not admissible under 803(6). However, police reports are inadmissible

hearsay because the information contained in them “is hearsay and is a mere opinion or

conclusion not based on personal observation.” State v. Bashan Murchison, No. E2014-

01250-CCA-R3-CD, 2016 WL 659844, at *7 (Tenn. Crim. App. Feb. 12, 2016), perm.

app. denied (Tenn. Aug. 18, 2016) (citing McBee v. Williams, 405 S.W.2d 668, 671

(Tenn. Ct. App. 1966)). The document in this case was made at or near the time of the

event recorded, is routinely kept in the course of “business,” and does not contain opinion

or hearsay. The persons signing the form were under a business duty to do so.

Accordingly, we conclude the DHS chain of custody form was admissible as a business

record. The defendant is not entitled to relief on this issue.

V. Sufficiency

The defendant next contends the evidence was insufficient to support his

convictions of sexual exploitation of a minor and aggravated sexual exploitation of a

minor. The State contends the evidence is sufficient. We agree.

When the sufficiency of the evidence is challenged, the relevant question of the

reviewing court 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); see also

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Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or

jury shall be set aside if the evidence is insufficient to support the findings by the trier of

fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92

(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All

questions involving the credibility of witnesses, the weight and value to be given the

evidence, and all factual issues are resolved by the trier of fact. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by

the trial judge, accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.

1973). Our Supreme Court has stated the following rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus, the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be

given to the testimony of witnesses. In the trial forum alone is there human

atmosphere, and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d

523 (Tenn. 1963)). “A jury conviction removes the presumption of innocence with

which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a

convicted defendant has the burden of demonstrating that the evidence is insufficient.”

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

The jury convicted the defendant of ten counts of sexual exploitation of minor

over 100 images, a Class B felony, twenty-three counts of sexual exploitation of a minor,

a Class D felony, and one count of aggravated sexual exploitation of a minor, a Class C

felony. As charged in this case, sexual exploitation of a minor occurs when a person

knowingly possesses material that includes a minor engaged in (1) sexual activity or (2)

simulated sexual activity that is patently offensive. Tenn. Code Ann. § 39-17-1003(a).

Aggravated sexual exploitation of a minor occurs when a person knowingly promotes,

sells, distributes, transports, purchases, or exchanges material that includes a minor

engaged in (1) sexual activity or (2) simulated sexual activity that is patently offensive.

Tenn. Code Ann. § 39-17-1004(a). “In a prosecution under this section, the state is not

required to prove the actual identity or age of the minor.” Tenn. Code Ann. § 39-17-

1003(e), -1004(c).

We first note, the defendant’s sufficiency argument is premised on his prior

argument that the cell phone was inadmissible due to an improper showing of the chain

of custody. As discussed above, the chain of custody was properly established. The

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remainder of the defendant’s sufficiency argument consists of a single sentence in his

brief, in which he simply states the evidence, including the cell phone and images

contained therein, was not sufficient to support his convictions.

Viewed in the light most favorable to the State, Special Agent Gamble testified

she was working undercover when she discovered the defendant had uploaded eight

sexually explicit pictures of children to the Kik application. A search of the defendant’s

cell phone revealed over three thousand images and twenty-three videos of children in

sexually explicit situations. The defendant told Special Agent Hendrix he used the Kik

application to view and distribute child pornography and admitted to having child

pornography on his phone. The defendant’s search history indicated he was looking for

pornography involving teenagers. Based on the evidence, a rational jury could find

sexual exploitation of a minor and aggravated exploitation of a minor beyond a

reasonable doubt. The defendant is not entitled to relief on this issue.

VI. Sentencing

Finally, the defendant challenges the trial court’s application of enhancement

factor (4), arguing his convicted offenses do not involve a victim. The State contends the

trial court exercised proper discretion in determining the length of the defendant’s

sentences. We agree with the State.

In determining an appropriate sentence, a trial court must consider the following

factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the

presentence report; (3) the principles of sentencing and arguments as to sentencing

alternatives; (4) the nature and characteristics of the criminal conduct involved; (5)

evidence and information offered by the parties on mitigating and enhancement factors;

(6) any statistical information provided by the administrative office of the courts as to

sentencing practices for similar offenses in Tennessee; (7) any statement the defendant

makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.

Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed

should be the least severe measure necessary to achieve the purposes for which the

sentence is imposed.” Id. § 40-35-103(4).

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory

presumptive minimum sentence and rendered enhancement factors advisory only. See

Tenn. Code Ann. §§ 40-35-114, -210(c). Although the application of the factors is

advisory, a court shall consider “[e]vidence and information offered by the parties on the

mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-

210(b)(5). The trial court must also place on the record “what enhancement or mitigating

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factors were considered, if any, as well as the reasons for the sentence, in order to ensure

fair and consistent sentencing.” Id. § 40-35-210(e).

When an accused challenges the length and manner of service of a sentence, this

Court reviews the trial court’s sentencing determination under an abuse of discretion

standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d

682, 707 (Tenn. 2012). If a trial court misapplies an enhancing or mitigating factor in

passing sentence, said error will not remove the presumption of reasonableness from its

sentencing determination. Bise, 380 S.W.3d at 709. This Court will uphold the trial

court’s sentencing decision “so long as it is within the appropriate range and the record

demonstrates that the sentence is otherwise in compliance with the purposes and

principles listed by statute.” Id. at 709-10. Moreover, under such circumstances,

appellate courts may not disturb the sentence even if we had preferred a different result.

See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party challenging the

sentence imposed by the trial court has the burden of establishing that the sentence is

erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991).

Here, the trial court applied enhancement factors (4) that a victim of the offense

was particularly vulnerable because of age and (7) that the offense was committed to

gratify the defendant’s desire for pleasure or excitement. Tenn. Code Ann. § 40-35-

114(4), (7). In mitigation, the trial court noted the defendant’s lack of a prior criminal

record. The trial court then imposed a sentence of ten years to be served at 100 percent

for Counts 1-10, sexual exploitation of a minor over one hundred images, four years to be

served at 30 percent for Counts 11-33, sexual exploitation of a minor, and six years to be

served at 30 percent for Count 34 aggravated sexual exploitation of a minor.

Specifically, Counts 1-10 were to be served concurrently with each other. Counts 11-33

were to be served concurrently with each other, but consecutive to Counts 1-10, and

Count 34 would run consecutively to Counts 1-33, for an effective sentence of twenty

years.

As the trial court noted, many of the children depicted in the three thousand

images and twenty-three videos were young, including infants and toddlers. Therefore,

the trial court did not misapply enhancement factor (4). Aguilar, 437 S.W.3d at 909

(upholding the use of enhancement factor (4) when the sexually explicit images found on

the defendant’s computer involved very young children). In addition, our review of the

record indicates the trial court imposed a within applicable range sentence after properly

considering the evidence adduced at trial and the sentencing hearing, the presentence

report, the principles of sentencing, the parties’ arguments, the nature and characteristics

of the crime, the potential for rehabilitation, and the evidence of enhancing factors. Tenn.

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Code Ann. §§ 40-35-103(5), -114, -210(b). Therefore, the defendant’s sentence is

presumed reasonable, and the defendant is not entitled to relief.

Conclusion

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

trial court.

____________________________________

J. ROSS DYER, JUDGE

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