# State of Tennessee v. James Wallace Norton

> Court of Criminal Appeals of Tennessee · March 8, 2019

URL: https://www.frixlaw.com/law-library/cases/4375434

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** March 8, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge J. Ross Dyer
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4375434

## How later opinions describe it (automated extraction)

- holding the defendant’s searches for “jailbait girls,” “virgin porn,” and “teen jailbait porn” “evinced that he knowingly sought out child pornography”
- 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”

## Opinion text

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
___________________________________

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.

-2-
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
-3-
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.
-4-
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
-5-
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).

-6-
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.

-7-
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
-8-
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;

-9-
(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.
- 10 -
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.
- 11 -
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
- 12 -
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4375434. Public record. Not legal advice.