# State of Tennessee v. Brandon Robert Vandenburg

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

URL: https://www.frixlaw.com/law-library/cases/4424048

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** August 8, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Robert L. Holloway, Jr.
- **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/4424048

## How later opinions describe it (automated extraction)

- reversing a conviction obtained after a Secret Service agent, in an ex parte communication, advised a defense witness of possible prosecution if he testified
- affirming the trial court’s exclusion of expert testimony as “not sufficiently trustworthy” because the expert did not review the complete interrogation

## Opinion text

08/08/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
January 17, 2019 Session

STATE OF TENNESSEE v. BRANDON ROBERT VANDENBURG

Appeal from the Criminal Court for Davidson County
No. 2015-C-1517 Monte Watkins, Judge
___________________________________

No. M2017-01882-CCA-R3-CD
___________________________________

A Davidson County jury convicted Brandon Robert Vandenburg, Defendant, of
five counts of aggravated rape, two counts of aggravated sexual battery, and one count of
unlawful photography. On appeal, Defendant argues the following: (1) the trial court’s
denial of his motion to dismiss the superseding indictment violated his right to due
process and protection from double jeopardy and violated Tennessee Rule of Criminal
Procedure 8; (2) prosecution on the superseding indictment created a realistic likelihood
of vindictive prosecution; (3) the trial court erred in excluding the testimony of Dr. J.
Sidney Alexander; (4) the trial court erred by denying Defendant’s request to question
potential jurors about recent rape cases in national news and by failing to timely
admonish prospective jurors; (5) the trial court erred in denying Defendant’s motion to
suppress the June 27, 2013 interrogation and evidence obtained based on that
interrogation; (6) the trial court erred in excluding Defendant’s voicemail on Joseph
Quinzio’s cell phone; (7) the trial court erred by instructing the jury on the requisite
culpability for criminal responsibility and on “presence and companionship” as it relates
to criminal responsibility; (8) the State committed prosecutorial misconduct during
closing arguments; (9) the evidence was insufficient for a rational juror to have found
Defendant guilty beyond a reasonable doubt; (10) Tennessee Code Annotated section 39-
13-605 is void for vagueness; (11) the trial court erred in ordering Defendant to serve an
excessive sentence; (12) the trial court erred in denying Defendant’s motion to recuse;
(13) the trial court erred by excluding evidence of the co-defendants’ prior bad acts; (14)
the trial court erred by denying Defendant’s Tennessee Rule of Evidence 412 motion; and
(15) the cumulative errors in Defendant’s trial warrant a new trial. After a thorough
review of the facts and applicable case law, we affirm the trial court’s judgments in
counts one through four and six through eight. Although not raised by either party, we
determine that Defendant’s conviction of aggravated rape in count five must be vacated.
We modify the conviction in count five to attempted aggravated rape and remand to the
trial court for sentencing in count five.1

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.

Randall E. Reagan, Knoxville, Tennessee (on appeal), Troy Bowlin, Morristown,
Tennessee, and Albert Perez, Jr., West Covina, California (at trial) for the appellant,
Brandon Robert Vandenburg.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Tom Thurman and Jan
Norman, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

This appeal stems from Defendant’s participation in the aggravated rape,
aggravated sexual battery, and unlawful photography of the victim, E.L.,2 along with Co-
defendants Corey Batey, Jaborian McKenzie, and Brandon Banks. In August 2013, the
Davidson County Grand Jury indicted Defendant and his co-defendants on five counts of
aggravated rape, two counts of aggravated sexual battery, one count of tampering with
evidence, and one count of unlawful photography. Defendant and Co-defendant Batey
proceeded to trial in January 2015. The jury found Defendant guilty of four counts of

1
After the jury returned a verdict in the previous trial, the trial court granted a new trial. The
State then obtained a superseding indictment which included five counts of aggravated rape and several
other offenses. The State made an election of offenses in both trials. In the first trial, the State elected to
proceed in count four with “the penile-vaginal penetration of the victim by Mr. Batey.” The jury in the
previous trial found Defendant guilty as charged with the exception of count four in which the jury found
Defendant guilty of attempted aggravated rape, a lesser included offense of aggravated rape. In the
subsequent trial, the State elected to proceed in count five with the penile-vaginal penetration of the
victim by Mr. Batey, and the jury found Defendant guilty of aggravated rape in count five. Because the
jury in the previous trial found Defendant guilty of the lesser included offense of attempted aggravated
rape in count four, Defendant’s conviction of aggravated rape for the same particular incident in count
five of the subsequent trial violates double jeopardy principles.
2
It is the custom of this court to refer to victims of sexual crimes by their initials to protect their
identity. We intend no disrespect.
-2-
aggravated rape, one count of attempted aggravated rape, two counts of aggravated
sexual battery, one count of tampering with evidence, and one count of unlawful
photography. On June 23, 2015, the trial court granted Defendant’s motion to declare a
mistrial3 because the jury foreperson failed to disclose that he had been named a victim of
statutory rape in a prior criminal case. The trial court determined that the jury
foreperson’s conduct “g[ave] rise to a presumption of bias” and that the foreperson was
not “a fair and impartial juror.”

On July 7, 2015, the Davidson County Grand Jury issued a second indictment that
charged Defendant and his co-defendants with five counts of aggravated rape, two counts
of aggravated sexual battery, and one count of unlawful photography. Defendant
proceeded to trial in June 2016.

Jury trial

Captain Donnie Harville4 testified that he worked for the Vanderbilt Police
Department (VPD) in the Investigation Division. Captain Harville explained that the
VPD had “a memorandum of understanding with [the Metro Nashville Police
Department] where they investigate certain crimes for the [VPD] when major felonies
happen on campus. They usually come in and assist us or they can take lead over the
investigation.” Captain Harville explained that the VPD began investigating the current
offenses because “[t]he Housing Unit was reviewing the video surveillance on the NICE
System,5 and it came across some suspicious activity, and they alerted the [VPD] to
investigate.” He learned of the video on the morning of June 26, 2013. When Captain
Harville reviewed the June 23, 2013 surveillance footage from multiple cameras in
Gillette Hall, a dormitory for athletes on Vanderbilt’s campus, he observed “four males
carrying an unconscious female into Gillette Hall.”

Captain Harville identified the DVDs that contained the surveillance footage from
multiple cameras in Gillette Hall during the time period that the offenses occurred. He
testified that the video surveillance footage depicted a vehicle approaching one entrance
3
Defendant’s motion for mistrial or to set aside the verdict was not included in the appellate
record. Additionally, a transcript of the evidentiary hearing related to Defendant’s motion was not
included in the appellate record. The appellant bears the burden of preparing an adequate record on
appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes the duty to “have
prepared a transcript of such part of the evidence or proceedings as is necessary to convey a fair, accurate
and complete account of what transpired with respect to those issues that are the bases of appeal.” Tenn.
R. App. P. 24(b).
4
Captain Harville testified that, at the time of the offenses, he held the rank of lieutenant
detective at the VPD.
5
Captain Harville explained that the NICE system was Vanderbilt’s video surveillance system in
the campus dorms and buildings.
-3-
of the dorm. A person, whom Captain Harville identified as Defendant, exited the
vehicle and attempted to enter the dorm by scanning an ID card. The video surveillance
footage also depicted Defendant speaking with two individuals, Co-defendants McKenzie
and Banks, outside of the dorm. Another individual, whom Captain Harville identified as
Co-defendant Batey, approached Defendant. The video then depicted Defendant carrying
an unconscious female from the vehicle into the dorm. Video surveillance footage from
inside Gillette Hall depicted Defendant carrying the unconscious female, whom Captain
Harville identified as E.L, into the dorm with Co-defendants McKenzie, Banks, and
Batey. Co-defendant McKenzie pushed the elevator button while Defendant carried E.L.
Defendant and Co-defendant Banks entered the elevator with E.L. and rode it to the
second floor. Co-defendants Batey and McKenzie later joined Defendant, Co-defendant
Banks, and E.L. on the second floor. On cross-examination, Captain Harville agreed that
Defendant appeared to struggle to carry E.L. while he waited for the elevator to arrive on
the first floor of Gillette Hall.

After Defendant and Co-defendant Banks arrived on the second floor, Defendant
picked E.L. up off the elevator floor and placed her on the hallway floor. The video of
the second-floor surveillance camera depicted Co-defendant Banks taking a photograph
of E.L. on his cell phone while she lay on the hallway floor. Defendant and Co-
defendant Banks then picked up E.L. and carried her down the hallway. Surveillance
footage then depicted Defendant carrying E.L. into Room 213 at 2:37 a.m. Co-
defendants Banks and Batey followed Defendant into the room. Around 3:09 a.m.,
Defendant left Room 213 with a towel on his head and approached one of the
surveillance cameras. Defendant placed the towel on the camera to block its view; by
3:26 a.m., someone had removed the towel. During cross-examination, Captain Harville
stated that surveillance footage depicted Defendant experiencing “some type of emotion”
around 3:13 a.m.

Around 3:14 a.m., the surveillance video in East Hall dormitory depicted Chris
Boyd and Michael Retta exit Mr. Boyd’s room; Mr. Boyd had a cell phone in his hand.
Dillon van der Wal exited his room and spoke with Mr. Boyd and Mr. Retta. A few
minutes later, the surveillance video depicted Mr. Boyd, Mr. Retta, and Mr. van der Wal
exiting East Hall around 3:18 a.m. At 3:21 a.m., the surveillance video in Gillette Hall
depicted Defendant walking to the main lobby of the second floor and opening the door
for Mr. Boyd, Mr. van der Wal, Mr. Retta, and Deandre Woods.

At 4:16 a.m., the surveillance video in East Hall depicted Defendant standing in a
hallway speaking with Mr. van der Wal, Austyn Carta-Samuels, and Mr. Boyd. From
4:52 a.m. to 5:14 a.m., E.L. exited Room 213, entered the bathroom, and either returned
to Room 213 or walked around the hallway several times. Around 11:50 a.m., E.L., who

-4-
had entered Room 214 around 8:00 a.m., left with another female, exited Gillette Hall,
and drove off in her vehicle which was parked in front of the dorm.

On cross-examination, Captain Harville testified that he had asked Kevin Colon,
an athletic department official, to bring Defendant to the VPD office. Captain Harville
then introduced Defendant to Detective Jason Mayo and Sergeant Michael Shreeve. On
redirect examination, Captain Harville explained that he met Defendant outside of a VPD
administration building, where administrative staff in plain clothes worked.

G.L. Black testified that, in June 2013, he worked at Vanderbilt University as an
Associate Dean and Director of Student Conduct and Academic Integrity. Mr. Black
explained that his role at Vanderbilt involved “reviewing and resolving student violations
of university policy[.]” Mr. Black received regular reports from “different entities on
campus” that concerned academic or nonacademic misconduct. Around 4:30 p.m. on
June 24, 2013, Mr. Black learned of “some video footage” that pertained to student
misconduct. To begin his investigation, Mr. Black viewed “a few video clips that . . .
showed a woman, who appeared to be incapacitated in some way, . . . being carried into a
residence hall by several males.” On June 25, Mr. Black “convened a group of people in
the middle of the day to look at the video to try to help identify these students . . . on the
video.” The group did not include any VPD officers but did involve three athletic
department officials—David Williams, Candace Lee, and Mr. Colon. Mr. Black arranged
for nine students identified on the video to come to his office to discuss the footage that
afternoon: Defendant; Co-defendants McKenzie, Banks, and Batey; Jacob Bernstein; Mr.
van der Wal; Mr. Boyd; Deandre Woods; and Mack Prioleau. Mr. Black met with the
students individually and recorded the interviews.

During his interview with Mr. Black, Defendant stated that he saw E.L., whom he
had met previously at Tin Roof, a local bar, on the night of June 22. He explained that
both he and E.L. were intoxicated that night. They attempted to get into her apartment
but were unable, so Defendant drove them in E.L.’s vehicle to Gillette Hall. Defendant
told Mr. Black that E.L. was not very coherent but had not passed out during the drive.
Once they arrived at Gillette Hall, Co-defendants McKenzie, Batey, and Banks helped
Defendant carry E.L. to his room on the second floor. Defendant told Mr. Black that they
put E.L. in his bed; he then went to East Hall to spend the night because E.L. had thrown
up in the room. Defendant denied that he or any of the Co-defendants had sexual contact
with E.L., took photographs of her, or had sexual intercourse with her. Later in the
interview, Defendant explained that he covered up the security camera on the second
floor of Gillette Hall because he “wasn’t thinking clearly” and “there was a girl passed
out in [his] room.” Defendant gave a signed, written statement to Mr. Black that
reiterated his verbal statement. On the evening of Friday, June 28, Mr. Black placed
Defendant on interim suspension from Vanderbilt University.
-5-
Detective Mayo testified that he had worked for the Metro Nashville Police
Department (“MNPD”) since 2000. In June 2013, Detective Mayo worked in the Sex
Crimes Unit of the MNPD. On June 26, 2013, Detective Mayo received a phone call
from his supervisor, Sergeant Shreeve, around 2:30 p.m. Sergeant Shreeve asked
Detective Mayo to respond to the VPD’s administrative building. When Detective Mayo
arrived, he met with Sergeant Shreeve and a VPD officer. He observed several still shots
obtained from the surveillance videos while another officer interviewed E.L. With the
assistance of the VPD and other Vanderbilt officials, Detective Mayo identified the
individuals depicted in the still photographs. Detective Mayo described E.L. as
“somewhat confused” and “dumbfounded” about the events of June 23. Detective Mayo
noted that because the still photographs were timestamped, he could estimate when the
offenses occurred. He estimated that eighty to ninety hours elapsed between the time
when the offenses occurred and when the VPD and the MNPD interviewed E.L.
Detective Mayo asked E.L. to consent to a medical-legal examination at Vanderbilt
University Hospital. After the examination, E.L. retrieved clothing that she wore during
the offenses “[f]or possible evidence collection.”

On the morning of June 27, Detective Mayo and Sergeant Shreeve returned to the
VPD administrative building and interviewed several individuals, including Defendant, in
Captain Harville’s office. During the interview, Defendant initially stated that he “might
have taken a picture” of E.L., but if he did, he deleted the photograph. Later during the
interview, Defendant stated the following:

They helped me bring her up to the room and -- man, I can’t even
talk about this s[**]t. Right as I got in there, I changed to my pajamas. At
some point, they told me [Co-defendant McKenzie] took off his shirt. He
told me -- after we all got interrogated, they told me . . . hey we all need to
get the same story, we need to . . . have an explanation for why [Co-
defendant McKenzie] took off his shirt and all this stuff.

And -- and anyways, so as I brought her in there, she was on the
floor throwing up and I sat on my bed. My roommate was there. He kind
of woke up a little bit. I mean I’m sure he saw me sitting on my bed. And
she was on the floor and they just -- they turned her over and they were just
messing with her and slapping her leg or slapping her butt and fingering her
and s[**]t. And I don’t -- honestly, I don’t even know everybody -- who
was [there] because at one point they turned off the light. And after that,
they’re all laughing about it and -- I don’t know if they had sex with her or
not. I couldn’t tell. I was pretty inebriated.

....
-6-
And they were like, “You need to sleep -- you need to sleep in here
with her and act like nothing happened and all this stuff. And at one point,
like I know you guys saw like I -- I put the towel over the camera ‘cause
right before they left, I wanted them to help take her back to the room or
something and that’s when I called [Mr.] Boyd and [Mr. van der Wal]
because I mean I knew something bad just really happened and it like -- I
was just trying to bring her up to my room to put her in the bed and like I
couldn’t carry her myself and like -- just f[****]d up, man. Like I sat there
and like saw it happening and I didn’t tell them to stop, you know, but I
d[**]n well didn’t do anything. I didn’t even touch the girl.

....

I didn’t know what to do. I -- you know, I was intoxicated. I mean
obviously you see the camera footage. But I didn’t do anything to stop it,
and that’s when I called [Mr. Boyd] and -- [Mr. Boyd] and [Mr. van der
Wal] and they said they would be right up and that’s when I told them.
Like I told them everything that happened, that they did all this stuff and
that I just needed help. And -- and they told me to sleep in . . . his room
and we’ll talk about it in the morning.

And I texted her in the morning. And all those guys talked to me the
next day, the guys that did it. They’re like, “You need to be quiet. You
can’t talk about this stuff. You need to have sex with her to like try to
cover it up like whatever happened.” And so the next day I had her come
over. I don’t know if she told you that or not. And we ended up having sex
unprotected and that was that. And after they investigated us or they called
us in. They told me I needed to get my story straight and say nothing
happened. And they said that [Co-defendant McKenzie] took his shirt off
because I threw water on him. And say that I covered up the camera
because -- I don’t even know why.

And I just feel -- I’m just scared because . . . they’re going to say
that like I did something and it’s like -- I know at least my roommate was
there for a little bit but he was sleeping. But at least he saw that I was on
the bed the whole time. I didn’t even touch her. Like I have no reason to.
She -- like we had sex the next day. . . . I don’t have sex with a girl
throwing up. That’s disgusting.

Defendant again stated that he did not think that Co-defendants Banks, Batey, or
McKenzie took photographs of E.L. during the offenses. Defendant told Detective Mayo,
-7-
however, that he took a video of his co-defendants digitally penetrating E.L. and that he
sent the video to Mr. Boyd and Mr. Carta-Samuels. Defendant also admitted to flushing
condom wrappers down the toilet after he placed a towel over the security camera in the
hallway. Defendant did not recall that E.L. made any noise during the offenses.
Defendant consented to allow Detective Mayo and Sergeant Shreeve to inspect his phone
and to collect a DNA sample.

After the interview, Captain Harville accompanied Defendant to his dorm room to
collect his cell phone. Detective Mayo met E.L. at the Vanderbilt University Crisis
Center; when he informed E.L. that she had been raped and sexually assaulted, she was
“[p]retty shocked[,]” “visibly upset[,]” and “[c]ried.” After speaking with E.L., Detective
Mayo returned to the VPD administration building and collected Defendant’s phone.
Around 2:00 p.m., Detective Mayo, Sergeant Shreeve, and Captain Harville went to
Room 213 in Gillette Hall and met with Defendant and his roommate, Mr. Prioleau.
With the consent of Defendant and Mr. Prioleau, the officers examined Room 213.
Detective Mayo asked for the MNPD Identification (ID) Unit to come to the room to
collect evidence. On June 28, Detective Mayo executed search warrants to gather digital
data from Co-defendants McKenzie, Batey, and Banks’ cell phone. Detective Mayo also
returned to Room 213 to search Defendant’s laptop computer.

On cross-examination, Detective Mayo testified that he interviewed Co-defendant
McKenzie on July 7, 2013, September 9, 2013, and July 14, 2014. He also interviewed
E.L. and Mr. Prioleau. During his investigation, Detective Mayo collected Mr. Boyd’s
and Mr. Carta-Samuels’ phones. Detective Mayo agreed that he asked Defendant to
make a controlled phone call to Co-defendant Batey and that Defendant complied.
Detective Mayo recovered an iPhone 4 from Joseph Quinzio.

Investigator Felicia Evans worked for the MNPD as a crime scene investigator in
the Crime Scene Investigation Unit at the time of the offenses. On June 27, 2013,
Investigator Evans responded to Gillette Hall to assist Investigator Sharon Tilley.
Investigator Tilley walked through the scene first with Detective Mayo, then with
Investigator Evans. Investigator Tilley photographed the room; later, she and
Investigator Evans marked items for collection of evidence. Investigators Evans and
Tilley also performed a panoscan6 of Room 213 and used an “alternative light source” to
look for body fluids but did not find any. Investigator Evans photographed a “container”
or “tub” near a desk that contained “vomitus-type material on the bottom of the tub.” She
also collected a scraping of the substance from the bottom of the container. Additionally,

6
Investigator Evans explained that a panoscan was a 360-degree photograph of an area. She
stated that a panoscan “allows for any still photographs that were taken to be embedded into that actual
scan.”
-8-
Investigators Evans and Tilley processed the room for latent prints and collected a green
towel and a red and white towel. Investigator Evans testified that the red and white towel
smelled strongly of urine. When Investigator Evans scanned the green towel with the
alternative light source, the light indicated the presence of “bodily fluid or semen” near
the edge of the towel. She also processed a condom box and loose condoms found in a
drawer for latent prints. Further, Investigator Evans found latent prints on the interior
side of the door. On cross-examination, Investigator Evans clarified that she collected
two fingerprints on the condom box.

Detective Chad Gish testified that he worked for the MNPD in the Surveillance
and Investigative Support Unit of the Criminal Investigative Division. Defendant and the
State stipulated that Detective Gish was an expert in digital forensics. Detective Gish
explained that the Surveillance and Investigative Support Unit “work[ed] a lot of major
crimes, especially crimes that have a digital aspect involved, such as cell phones,
computers, video anything of that nature.” In July 2013, Detective Mayo and Sergeant
Shreeve asked Detective Gish to assist in digitally analyzing electronic devices they had
seized while investigating the current offenses. Detective Gish requested Defendant’s
interview with Detective Mayo and Sergeant Shreeve at the VPD administrative office as
well as the surveillance video from Gillette Hall. With these items of evidence, Detective
Gish created a timeline of the offenses. Next, Detective Gish connected the electronic
devices that MNPD had seized to “a forensic piece of software[] to extract the data from
that telephone.” Detective Gish was unable to recover any deleted photographs or videos
from Defendant’s iPhone, but he found other evidence that the phone had previously held
photographs or videos related to the offenses, such as “references to ‘rape’ in iMessages”
and “numerous, numerous[] calls” during the timeframe of the offenses. Detective Gish
also observed that “[t]he content of the messages seemed to be that whoever was
responding to these messages had seen a video[] or a picture.” Additionally, Detective
Gish “saw references in the recovered text message of this timeframe[] . . . to Facetime.”7
Detective Gish also examined the search history of Defendant’s iPhone and found that a
user had searched Google on June 26, 2013 for the following phrase: “Can police retrieve
deleted picture messages.” After the Google search engine provided the user with a list
of websites that met the search criteria, the user went to a website that discussed “police
mine deleted texts from your cell phone[.]” The user also searched on The Student Room
web server for the following phrase: “Police Power/capabilities on Recovering Deleted
Messages from a Sams[u]ng phone.” Detective Gish continued to examine Defendant’s
iPhone and found “a lot of missing images that had been deleted” from Defendant’s
phone during the timeframe of the offenses. Further, Detective Gish examined a

7
Detective Gish explained that Facetime is “basically, a phone call, a video phone call, streamed
over the web.”

-9-
“thumbnail database”8 on Defendant’s iPhone and “recovered images from this thumbnail
database[] that were taken in the timeframe of 2:38 to 3:10 in the morning, inside the
room with the victim” from the day that the offenses occurred. Detective Gish was able
to recover “nine images that were taken from [Defendant]’s cell phone out of the
thumbnails”; the thumbnails were from photographs or still images of videos. Detective
Gish testified that the thumbnails depicted the following, in pertinent part:

 E.L. lying on the carpet in the hallway of the second floor of Gillette Hall with
her skirt pulled up, her underwear removed. Her buttocks are red and her top
is pulled up, exposing her breasts;
 E.L. lying on the floor of Defendant’s dorm room with Co-defendant Batey
kneeling over her while touching his genital area;
 E.L. lying on the floor of Defendant’s dorm room with her skirt pulled up
above her waist, her underwear removed, and her legs “spread open.” Co-
defendant Banks’s hand is depicted in the photograph holding a cell phone;
 E.L. lying face down with her underwear removed, her skirt pulled up, and her
legs spread open with Co-defendant Batey penetrating E.L.’s vagina with his
fingers;
 E.L. lying on the floor of Defendant’s dorm room with her underwear
removed, her skirt pulled up, and a bottle penetrating her anus;
 E.L. lying face down with her underwear removed and Co-defendant Batey
penetrating E.L.’s vagina with his fingers while Co-defendant Banks takes a
photograph with his cell phone;
 E.L. lying on the floor of Defendant’s dorm room with her underwear
removed, her skirt pulled up, and Co-defendant Batey kneeling near her head
with his pants pulled down to his waist and holding his penis in his hand;
 E.L. lying in the hallway of the second floor of Gillette Hall with her skirt
pulled up.

Detective Gish also forensically examined Co-defendant Batey’s iPhone; he
extracted data that included messages, photographs, and videos. Detective Gish
discovered that “there were images taken from [Co-defendant] Batey’s phone, but like
[Defendant]’s they had been deleted and they weren’t recovered.” Using the same
process of recovering the thumbnail database on Co-defendant Batey’s iPhone, Detective
Gish was able to recover thumbnail images. He described the images as the following:

8
Detective Gish explained that computers do not delete the thumbnail views of files when a user
deletes the original file. Similarly, iPhones do not delete the thumbnail images of files that have been
deleted from the phone’s memory.
- 10 -
 E.L. lying in Defendant’s dorm room with her skirt pulled up, her underwear
removed, and her top pulled up;
 E.L. lying on her back with her bra pulled up or removed to expose her breasts;
 E.L. lying on her back while Co-defendant Banks spreads her labia open and
takes a photograph of her vagina;
 E.L. lying in Defendant’s dorm room with her underwear removed and her
skirt removed or pulled up so that her lower body is exposed. Her buttocks
appeared red;
 E.L. lying on her stomach in Defendant’s dorm room while Co-defendant
Batey spread her buttocks open to expose her anus and labia;
 E.L. lying in the hallway of the second floor of Gillette Hall with her
underwear removed, her skirt pulled up, and her buttocks appeared red;
 Close-up photographs of E.L.’s genitals and anus.

Detective Gish conducted the same forensic digital exam on Co-defendant Banks’s
cell phone as he had conducted on Defendant’s and Co-defendant Batey’s iPhones.
Similarly, he was able to recover thumbnail images of deleted photographs or videos
from Co-defendant Banks’s phone. The thumbnail images depict the following:

 E.L. lying in Defendant’s dorm room with her shirt pulled up and Co-
defendant Batey kneeling near her head while touching his genital area;
 Two close-up images of E.L.’s buttocks with her underwear removed or pulled
down and her buttocks spread apart so that her anus and labia are exposed. Co-
defendant Batey is depicted digitally penetrating E.L.’s vagina;
 E.L. lying face down in Defendant’s dorm room with her underwear pulled
down below her thighs while Co-defendant Batey digitally penetrates her anus;
 E.L. lying in Defendant’s dorm room with her underwear removed, her top and
skirt pulled up while Co-defendant Batey kneels on a red and white towel;
 E.L. lying in Defendant’s dorm room with a bottle penetrating her anus;
 Multiple close-up photographs of Co-defendant Banks’s hand spreading E.L.’s
labia open to expose her vagina;
 E.L. lying on her back in Defendant’s dorm room while her face appears wet;
 E.L. lying on her back with her shirt pulled up to expose her breasts and an
object covering her face;
 E.L. lying on her back with her underwear and skirt removed while Co-
defendant Batey squats over her face with his underwear pulled down;
 A close-up image of Co-defendant Batey squatting over E.L.’s face with his
underwear pulled down;

- 11 -
Detective Gish forensically examined Defendant’s laptop computer and found that
the internet browsing history had been deleted. However, he was able to recover “a
picture of the actual website that was accessed by the user.” Detective Gish observed
four “web page previews of pornography sites that were accessed” during the timeframe
of the offenses. Detective Gish learned that Defendant’s iPhone called or received calls
from the phones of Miles Finley and Mr. Quinzio during the timeframe of the offenses.
In July 2013, Detective Gish, Detective Mayo, and Sergeant Shreeve traveled to Palm
Desert, California, to speak with Mr. Finley and Mr. Quinzio and “to conduct search
warrants on the mobile devices and electronic devices of these two individuals[.]”

Detective Gish seized a MacBook Pro laptop from Mr. Quinzio; he conducted a
digital forensic analysis of the computer and found photographs or videos relating to the
offenses. One video was approximately twelve seconds long and was recorded at 2:35
a.m. on June 23; the file was labeled IMG_1398.mov, which corresponded to a file that
had been deleted from Defendant’s iPhone. The video depicts E.L. lying in the hallway
of the second floor of Gillette Hall mumbling incoherently with her skirt pulled up while
Co-defendant Banks takes a photograph of E.L.’s genitals on his phone. During the
video, Defendant says, “My phone’s motherf[**]king dead right now. My phone’s
motherf[**]king dead.” Detective Gish noted that the angle of this video and the
timeframe matched Defendant’s actions seen on the surveillance video from Gillette Hall.

Mr. Quinzio received another video from Defendant through iMessage that was
recorded at 2:40 a.m. on June 23; this video was labeled IMG_1400.mov and was almost
seven seconds in length. IMG_1400.mov depicts Co-defendant Batey digitally
penetrating E.L.’s anus with his right index finger in Defendant’s dorm room while
E.L.’s underwear is pulled down and her skirt is pushed up. E.L.’s left buttock appears
red. Defendant can be heard laughing while he films. Detective Gish noted that this
video also corresponded to a file that had been deleted from Defendant’s iPhone.

After Defendant sent these videos to Mr. Quinzio and Mr. Finley, the three men
had the following exchange on iMessage:

MR. FINLEY: UR gunna get in trouble

MR. FINLEY: Delete that s[**]t

MR. FINLEY: Lol

MR. QUINZIO: Yeah Brandon you a dumbass.

MR. FINLEY: Get out of there
- 12 -
MR. FINLEY: She could call rape so done.

MR. FINLEY: Soon

MR. FINLEY: Delete that s[**]t

MR. QUINZIO: Seriously!

....

MR. FINLEY: Dog kick that b[***]h out or gangbang her

MR. FINLEY: Don’t let her wake up

MR. QUINZIO: Raping girls at vandy

DEFENDANT: U gotta delete this text

Defendant sent a third video to Mr. Quinzio, Mr. Finley, Mr. Boyd, and Mr. Carta-
Samuels through iMessage; this file was labeled IMG_1401.mov. The video was
approximately forty-one seconds long and was recorded at 2:40 a.m. Detective Gish
determined that Defendant was the individual who recorded this video because “when he
points the phone down you see his blue jeans and his shoes that he was wearing in the
surveillance video.” When the video begins, E.L. is lying face down on the dorm room
floor with a plastic bottle penetrating her anus. Defendant laughs and says, “Squeeze that
s[**]t, squeeze that s[**]t, squeeze that s[**]t[,]” and Co-defendant Banks squeezes and
twists the bottle. Defendant says “I can’t do this shit bro” and laughs. Detective Gish
testified that another person in the room says, “Let’s go back to Tin Roof. Hey, do you
guys want to go back to Tin Roof?” Co-defendant Batey kneels on the left side of E.L.’s
body in his underwear. Defendant says, “Dude, I can’t do this. I can’t f[**]king do this
right now. Bro, you ain’t even hard, bro[,]” as Co-defendant Batey leans forward with
his hands near his genital area and then pulls away from E.L’s body. Detective Gish
testified that the video appeared to depict Co-defendant Batey penetrating E.L.’s vagina
with his penis. In response to the video, Mr. Finley messaged, “Lol[,]” and Defendant
responded, “FaceTime[.]”

During a message exchange with Mr. Quinzio on June 22 at 6:06 p.m., the evening
before the offenses, Defendant mentioned that he “smashed last night but didn’t.”
Defendant then sent the following messages to Mr. Quinzio, in pertinent part: “Ever since
that god damn pro hormone dude . . . .!”; “Limp..”; “I know..but like I was hard AF at
- 13 -
first”; “Well we gunna try again tonight cuz ima f[**]k a different girl”; “Ima make sure I
f[**]k tonight.” Detective Gish found another conversation between Defendant and Mr.
Quinzio on Mr. Quinzio’s laptop from June 26. During the message exchange,
Defendant asked Mr. Quinzio to “[s]end” “[a]ll 3[.]” In response, Mr. Quinzio sent
Defendant the three video files that Defendant had sent to Mr. Quinzio during the
offenses.

Detective Gish obtained the call log from Defendant’s iPhone and identified the
following phone calls that Defendant placed on June 23, in pertinent part:

Call recipient Time Length
Joseph Quinzio 2:48 a.m. None
Miles Finley 2:52 a.m. 0:10
2:53 a.m. 0:05
3:08 a.m. 0:02
Chris Boyd 3:14 a.m. 2:31
Austyn Carta-Samuels 3:17 a.m. 0:03
Miles Finley 3:18 a.m. 0:03
Austyn Carta-Samuels 3:19 a.m. None
Dillon van der Wal 3:19 a.m. None
3:19 a.m. 0:01
Joseph Quinzio 3:36 a.m. 0:33
Chris Boyd 4:01 a.m. 0:03
Corey Batey 4:13 a.m. 0:01

Detective Gish testified that these phone calls had been deleted, but he was able to
recover them from Defendant’s phone. Additionally, Detective Gish found a number of
calls to or from Co-defendant Batey on Defendant’s phone, some of which had been
deleted but were recovered:

- 14 -
Direction Date/Time Length
Missed June 23 1:54 p.m. None
Missed June 25 11:44 p.m. None
Outgoing June 25 11:45 p.m. 1:21
Missed June 25 11:50 p.m. None
Outgoing June 25 11:51 p.m. None
Outgoing June 26 4:42 p.m. 0:02
Incoming June 26 4:47 p.m. 0:39
Outgoing June 26 4:54 p.m. 0:08
Outgoing June 26 9:51 p.m. 0:06
Incoming June 26 9:52 p.m. 1:40
Outgoing June 26 9:57 p.m. 0:02
Outgoing June 26 9:57 p.m. 0:02
Outgoing June 26 11:13 p.m. 0:03
Missed June 26 11:35 p.m. None
Missed June 26 11:36 p.m. None
Outgoing June 27 10:00 a.m. 2:24

On June 27, 2013, a user of Defendant’s computer viewed a page labeled “sexual assault”
on the website of Southern Illinois University at Carbondale.

Detective Gish testified that he obtained an iPhone 4 from Mr. Quinzio, but this
phone did not contain any evidence relevant to his investigation. Detective Gish also
obtained an iPhone 5 from Mr. Quinzio. During his forensic analysis of this phone,
Detective Gish recovered a voicemail that Defendant left for Mr. Quinzio shortly after the
offenses occurred. This voicemail correlated to the thirty-three second phone call from
Defendant to Mr. Quinzio on June 23 at 3:36 a.m. Detective Gish also obtained an
iPhone from Mr. Finley during his execution of search warrants in California. Detective
Gish testified that Mr. Finley’s phone “had just been wiped” when he executed the search
warrant of Mr. Finley’s person. Detective Gish was unable to recover any evidence from
this phone during his forensic examination. Detective Gish also conducted forensic
analysis of computers found at Mr. Finley’s residence, but he found no evidence related
to the current offenses. Additionally, Detective Gish obtained and analyzed Mr. Carta-
Samuels’ phone, but again, he found no evidence related to the current offenses.

Detective Gish obtained and analyzed Mr. Boyd’s phone and found an iMessage
conversation between Defendant and Mr. Boyd. The conversation had been deleted, but
Detective Gish was able to recover it. The conversation began at 2:49 a.m. and ended at
3:21 a.m. and included the following exchange:

- 15 -
DEFENDANT: I’m coming

DEFENDANT: My phones at 1%

DEFENDANT: Meet me outside the [e]mergency door at east

MR. BOYD: Come get us

DEFENDANT: Ok I’m leaving now my phones gunna charge in my
room

MR. BOYD: I’m at Gillette

DEFENDANT: I’ll come out from of Gillette

MR. BOYD: Hurry

MR. BOYD: DDR hurry

On June 25 and 26, Defendant had the following conversation with E.L. over
iMessage:

E.L.: Are you okay? I’m worried.

DEFENDANT: No I’m not:( this is all so messed up like I didn’t do
anything and I feel like I’m getting blamed for stuff that didn’t even
happen. I just wanna cry

E.L.: That’s f[**]ked up. Want to come to the pool and talk about
it???

DEFENDANT: Me and a bunch of teammates are probably going to
get kicked off the team unless something changes

DEFENDANT: Not tonight, tomorrow can we?

E.L.: Definitely. Are you sure not tonight? If you tell me what
happened I might be able to help

E.L.: I don’t want anyone to get into trouble because of me

- 16 -
E.L.: It’s going to be okay!

DEFENDANT: Maybe I’ll call you later

E.L.: I’ll do everything I can to clear your name

DEFENDANT: I heard jakes spreading rumors and stuff idk y

E.L.: Seriously?

DEFENDANT: Idk it’s all rumors but this stuff is so whack I would
never do anything like that

....

E.L.: I just got contacted by vanderbilt women’s center wanting me
to come in so they can help me but I asked someone from student conduct
to come too so I can try to clear this up

DEFENDANT: Ok great this is such a mess, I’m never helping
anyone get home ever

DEFENDANT: Next time just not gunna care lol. I feel like I’m
getting punished for taking care of u that night. .

E.L.: You were just trying to help me I’ll tell them that.

E.L.: I understand why you’re upset. I’m trying my best to make it
right

E.L.: You should be!

DEFENDANT: I’m just frustrated

E.L.: I’ll take care of it.

....

E.L.: They’re going to show me the video

E.L.: So that should help
- 17 -
DEFENDANT: Ok cool

....

DEFENDANT: What happened today

E.L.: I don’t really know much more than you do

DEFENDANT: I thought u said u talked to everyone today and
watched the video?

E.L.: Yeah I didn’t end up seeing it and they didn’t really tell me
anything

DEFENDANT: That’s weird cuz [sic] they said u watched it this
afternoon

E.L.: They wouldn’t tell me anything I was so confused

DEFENDANT: Hmm that’s weird well I was told I wasn’t supposed
to talk to u till all this is over…:(

E.L.: Yeah me either

DEFENDANT: Alright then I guess we can’t talk right now…I wuld
[sic] never let what they’re saying happen to you that’s messed up

DEFENDANT: I’m so upset right now

....

E.L.: Why did y’all cover up the cameras

E.L.: I’m just so confused right now

Mr. Quinzio, testified that he had known Defendant since the age of thirteen. He
stated that in June 2013, he owned and used an iPhone 4. During the evening of June 22
and early morning of June 23, Mr. Quinzio did not converse with Defendant over
FaceTime. However, Mr. Quinzio received phone calls from Defendant during that
period. Defendant left a voicemail on Mr. Quinzio’s phone, but Mr. Quinzio stated that
- 18 -
he “couldn’t make out much of the story. [Defendant] was talking to others, as well as
[Mr. Quinzio]. And [Defendant] just told [Mr. Quinzio] to call him back[.]” The
voicemail was approximately thirty-three seconds long.

Approximately a week later, Defendant came to Mr. Quinzio’s house in
California, removed the video files from the computer, put them on a flash drive, and
attempted to delete and reinstall the “software” from Mr. Quinzio’s computer. Defendant
also drove Mr. Quinzio’s vehicle to retrieve his own vehicle. After Defendant drove Mr.
Quinzio’s vehicle, Mr. Quinzio discovered that his iPhone 4 was missing from his
vehicle. Defendant informed Mr. Quinzio that he would return Mr. Quinzio’s iPhone 4,
but Defendant did not do so. Defendant later informed Mr. Quinzio that the phone had
been destroyed, and Defendant purchased an iPhone 5 for Mr. Quinzio. Mr. Quinzio
stated that, based on his involvement in the current offenses, he entered a conditional
guilty plea to attempted accessory after the fact and received a sentence of eleven months
and twenty-nine days, suspended to unsupervised probation.

On cross-examination, Mr. Quinzio clarified that, in addition to leaving a
voicemail on his phone, Defendant called him early in the morning of June 23. Mr.
Quinzio agreed that, during the phone call, Defendant sounded intoxicated. Mr. Quinzio
also agreed that he told Detective Mayo that he had never seen Defendant that intoxicated
and that Defendant was not a big consumer of alcohol. He further agreed that he told
Detective Mayo that he knew “what was going on” and that it “was wrong[,]” but that
Defendant did not. Mr. Quinzio also agreed that Defendant asked him to send the videos
of the offenses back because Defendant did not remember what had occurred.

Co-defendant McKenzie testified that he currently lived in Mississippi and was
out on bond. In June 2013, Co-defendant McKenzie attended Vanderbilt University on a
football scholarship. He stated that Co-defendant Banks was his roommate and that he,
Co-defendant Banks, and Co-defendant Batey were best friends. He did not know
Defendant prior to June 23, 2013. On the evening of Saturday, June 22, Co-defendants
McKenzie, Banks, and Batey listened to music in McKenzie and Banks’ room in Gillette
Hall and drank alcoholic beverages. Later, the three co-defendants went to a party in
East Hall and consumed more alcoholic beverages. Co-defendants McKenzie, Banks,
and Batey returned to Gillette Hall with Batey’s friend, “Quela.” Co-defendant
McKenzie explained that they were “buzzed” from having consumed alcoholic
beverages, but they were able to walk and talk on their own. Co-defendant Batey and
“Quela” went to Co-defendant Batey’s room; Co-defendants Banks and McKenzie
returned to their room to change clothes and then left the dorm to purchase food. As Co-
defendants Banks and McKenzie returned to Gillette Hall with food for Co-defendant
Batey, they observed Defendant pulling up to the dorm and Co-defendant Batey exiting
Gillette Hall with “Quela[.]” Defendant informed Co-defendant McKenzie that “he had
- 19 -
been out to the Tin Roof and he’s pretty drunk, and he had this young lady in the car, and
he needed [their] help to get her to his room.” Co-defendant McKenzie stated that
Defendant did not have trouble communicating. Defendant and Co-defendant Banks
carried E.L. out of the vehicle, into Gillette Hall, up the elevator, and into the second-
floor hallway. Co-defendant McKenzie and Co-defendant Batey went up to the second
floor a few minutes later. Co-defendant McKenzie did not know E.L. but observed that
she was “passed out” and did not make any sounds while she was in Defendant’s room.

After Defendant carried E.L. into his dorm room, the co-defendants followed.
Defendant attempted to wake up his roommate, Mr. Prioleau. Co-defendant Batey began
touching E.L. and removing clothes. Co-defendant McKenzie identified himself in the
photographs of the offenses; he stood near the doorway and wore a white shirt and blue
and white shoes. He identified Defendant’s voice on the videos of the offenses;
Defendant stated, “We have this b[***]h in here[,]” and “We’re going to f[**]k her.”
Defendant then “grabbed condoms out of the dresser drawer and passed the box around.”
Co-defendant McKenzie testified that “everyone” took a condom. Co-defendant
McKenzie recalled that Co-defendant Batey digitally penetrated E.L.’s vagina and that
Co-defendant Banks squeezed a bottle that had been inserted into E.L.’s anus. Co-
defendant McKenzie also testified that Co-defendant Batey penetrated E.L.’s vagina and
mouth with his penis while Defendant filmed the offenses. Additionally, Co-defendant
McKenzie testified that, prior to sitting on E.L.’s face with his genitals exposed, Co-
defendant Batey stated that “he had never had his a[**] ate before.” Co-defendant
McKenzie testified that, after Defendant filmed Co-defendant Batey penetrating E.L.,
Defendant “grabbed his laptop and turned on porn, and grabbed a bottle of water and put
it on himself in an attempt to get a hard on.” Defendant was unable to achieve an
erection and stated that “he had done to[o] much coke.” Co-defendant Batey slapped
E.L.’s buttocks five or more times. When Co-defendant McKenzie stated that E.L. would
wake up, Defendant said “she’s not going to wake up” and also slapped E.L.’s buttocks.
Next, Co-defendant Batey stated that he was going to urinate on E.L., and he proceeded
to do that. Co-defendant McKenzie admitted that he took a condom from Defendant and
took a photograph and video on Co-defendant Batey’s phone at Co-defendant Batey’s
request.

Regarding Defendant’s apparent level of intoxication, Co-defendant McKenzie
stated that this was his first interaction with Defendant; however, he could tell that
Defendant was “kind of” drunk but stated that Defendant was able to communicate and
walk without assistance. Co-defendant McKenzie described Defendant as “amped,”
“aggressive,” and “bossy.” Co-defendant McKenzie stated that he was unaware that
Defendant’s roommate, Mr. Prioleau, was in the room until Defendant attempted to wake
him up. After the offenses occurred, Defendant and Co-defendants McKenzie and Banks
left Defendant’s room and went into the bathroom. Co-defendant McKenzie stated that
- 20 -
he and Co-defendant Banks were “freaking out” but that Defendant “assured” them that
“everything would be okay.” While they were in the bathroom, Defendant flushed their
condoms down a toilet. After Defendant and Co-defendants McKenzie and Banks left
the bathroom, Defendant asked them to help him carry E.L. back to her vehicle. Co-
defendants McKenzie and Banks refused, and Defendant “put a towel over his head and
went and covered the camera.” Co-defendant McKenzie testified that Defendant put E.L.
in the hallway outside his dorm room.

Defendant and Co-defendants McKenzie, Batey, and Banks met the day after the
offenses in a dorm room. Co-defendant McKenzie stated that a teammate had received a
video of the offenses, and the teammate questioned Co-defendant McKenzie about the
video because the teammate recognized Co-defendant Batey and Co-defendant McKenzie
on the video. Defendant and Co-defendants McKenzie, Batey, and Banks met to discuss
how aware E.L. was of what had occurred during the offenses. Co-defendant McKenzie
asked Co-defendant Batey if he penetrated E.L. during the offenses, and Co-defendant
Batey responded that he had. Defendant stated that he was going to call E.L. over to his
room and have sex with her. After the Vanderbilt University Student Conduct officials
questioned Defendant and Co-defendants McKenzie, Batey, and Banks, the four men met
at a Popeye’s restaurant and discussed what each had told the Student Conduct officials
about the offenses. Co-defendant McKenzie admitted that he lied to the Student Conduct
officials. He also lied when he spoke with the MNPD on June 27, 2013. At his first
meeting with the MNPD and the District Attorney’s Office, Co-defendant McKenzie’s
statement contained some truthful information and some false information; Co-defendant
McKenzie admitted that he exaggerated how intoxicated Defendant and Co-defendants
Banks and Batey were during the offenses. Co-defendant McKenzie testified that he was
truthful in his interview with the District Attorney’s Office after he was charged for the
current offenses.

During cross-examination, Co-defendant McKenzie agreed that when he spoke
with Detective Mayo on June 27, he stated that “nothing happened” to E.L. while he was
in Defendant’s dorm room. He also informed Detective Mayo that he did not observe
anyone take a photograph or video of E.L. Co-defendant McKenzie also agreed that in
his interview with MNPD on July 17, 2013, he stated that Defendant and Co-defendant
Batey were intoxicated to the point that they “didn’t know what [they] w[ere] doing[.]”
Additionally, he agreed that during the July 17 interview, he stated that Defendant was
“freaking out” about what happened in his room. On redirect examination, Co-defendant
McKenzie explained that Defendant was “bossy” and “in control” during the offenses
because Defendant pushed Co-defendants McKenzie and Batey off the elevator, handed
out condoms, and covered the camera.

- 21 -
Mr. Prioleau testified that he was a senior at Vanderbilt University. In June 2013,
Mr. Prioleau lived in Gillette Hall on Vanderbilt’s campus; he and Defendant were
roommates. On the evening of Saturday, June 22, he spent time with a friend on the sixth
floor of Gillette Hall and returned to his and Defendant’s room “sometime after
midnight[.]” In the early morning hours of June 23, Mr. Prioleau woke up and saw four
other football players in the room with the lights on; he identified these individuals as
Defendant and Co-defendants Banks, Batey, and McKenzie. From his location in the top
bunk of the bunk bed, Mr. Prioleau also observed a female lying face down on the floor
of the bedroom. “Throughout the night, [Mr. Prioleau] heard them use the F word in
regards to having sex with her. [Mr. Prioleau] heard [Defendant] say he couldn’t get an
erection due to cocaine use at some point.” Additionally, Mr. Prioleau heard
pornography playing on a computer. He did not hear E.L. make any noise while she was
in the bedroom. As soon as Defendant and Co-defendants Banks, Batey, and McKenzie
left the room, Mr. Prioleau also left; at that time, E.L. was in Defendant’s bed on the
bottom bunk. Mr. Prioleau went to the sixth floor of Gillette Hall and stayed with a
friend for the remainder of the night.

Mr. Prioleau stated that Defendant kept condoms in a drawer in the room. When
Mr. Prioleau returned to the dorm room around noon on June 23, the room was empty.
Later that day, Defendant texted Mr. Prioleau to ask “if he could have the room to be
with a girl.” After speaking with Detective Mayo a few days later, Mr. Prioleau saw
Defendant and Co-defendants Banks, Batey, and McKenzie. Co-defendant Banks asked
Mr. Prioleau to “help them out[.]” Mr. Prioleau said “okay” and walked away.

Special Agent Charley Castelbuono testified that she worked in the Forensic
Biology Unit of the Tennessee Bureau of Investigation (TBI). Defendant and the State
stipulated that Special Agent Castelbuono was an expert in the field of DNA analysis.
Special Agent Castelbuono received evidentiary items for testing from Detective Mayo.
She tested vaginal swabs from E.L. for the presence of semen and found that the DNA
profile of the sperm fraction matched Defendant as a minor contributor. She also tested a
green towel that Detective Mayo recovered near the door of the dorm room; Defendant
matched the DNA profile found on this item. Additionally, Special Agent Castelbuono
tested a green towel that Detective Mayo found hanging on the wall of the room. She
examined two stains on the item; the analysis of the first stain was inconclusive as to
Defendant and the second stain matched Defendant. Special Agent Castelbuono also
found Defendant’s sperm on the brown fitted sheet recovered from the lower bunk bed.

On cross-examination, Special Agent Castelbuono stated that she found a few
sperm cells on E.L.’s panties that could have been from an old sperm stain or transferred
from another surface. Special Agent Castelbuono did not find enough male DNA from
this item to confirm an identity.
- 22 -
Mr. van der Wal testified that in June 2013, he lived in East Hall on the Vanderbilt
University campus. Mr. van der Wal stated that early in the morning on June 23, 2013,
Mr. Boyd received a phone call; based on that phone call, Mr. Boyd and Mr. van der Wal
walked to Gillette Hall with Mr. Retta. Mr. Woods met the three men at Gillette Hall.
As he entered the second floor of Gillette Hall, Mr. van der Wal observed “a female on
the ground with her dress above her midriff area. She was laying [sic] face down and
there were handprints on her . . . butt.” The female, E.L., was nude from the waist down.
Mr. van der Wal also observed a towel draped over the security camera in the hallway.
He stated that, after he arrived, Defendant, Mr. Boyd, and Mr. Woods carried E.L. into
Defendant’s dorm room and put her in Defendant’s bed. As Mr. van der Wal entered
Defendant’s dorm room, Mr. Prioleau got out of the upper bunk bed and left the room.
Mr. van der Wal stated that, after he left Defendant’s dorm room, he was “standing in the
hallway for a second and there was a video being shown.” Mr. van der Wal then returned
to East Hall with Defendant, Mr. Boyd, and Mr. Retta.

While the group of men walked back to East Hall, Defendant told multiple
versions of what occurred with E.L. Defendant stated that “nothing happened, that he
was too drunk to remember[,]” and that “he attempted to have sex with her but couldn’t
get himself to do it” because Defendant was “too drunk to get an erection.” Defendant
also stated that Co-defendant Batey had sex with E.L. “and other people did as well.”
Additionally, Defendant stated that “there were condoms that were disposed of and then
there was a water bottle used in some way.” When the group arrived at East Hall,
Defendant went into Mr. Carta-Samuels’ room. Mr. van der Wal observed that, while
Defendant was in Mr. Carta-Samuels’ room, Defendant had Mr. Carta-Samuels’ phone in
his hand. Mr. van der Wal described Defendant as “intoxicated, but no more intoxicated
than any other night” when Mr. van der Wal socialized with Defendant. Mr. van der Wal
stated that Defendant was “conversing” and “walking without . . . assistance[.]” Mr. van
der Wal testified that Defendant spent the night in his room in East Hall. When Mr. van
der Wal woke up later in the morning of June 23, Defendant had left the room. Mr. van
der Wal met Defendant at Waffle House later that morning for breakfast, but Defendant
did not express concern for E.L. during their meeting.

During cross-examination, Mr. van der Wal testified that he was aware that E.L.
and Defendant had a relationship prior to the offenses at issue. Mr. van der Wal clarified
that, while he ate breakfast at Waffle House later in the morning of June 23, Defendant
again told “multiple stories about what had happened.” Mr. van der Wal stated that
Defendant’s versions of the events “didn’t make sense.” He explained that Defendant
“was shocked that his other teammates had . . . had sex with her[;] he was telling it as if
he was shocked that it happened.”

- 23 -
Lauren Miller testified that in June 2013, she lived in the Village at Vanderbilt
Apartments as E.L.’s roommate. Ms. Miller stated that she was “extremely close friends”
with E.L. and that they were both members of Vanderbilt University’s dance team.
During the evening of June 22, 2013, Ms. Miller and E.L. hosted a gathering at their
apartment. After hanging out in the apartment kitchen and having a few drinks, E.L., Ms.
Miller, and their guests “got in a cab and went to Tin Roof” around midnight. After the
group arrived at Tin Roof, the group “started taking some pictures of [their] friends” and
greeted some people. Ms. Miller did not notice anything unusual about E.L.’s behavior
when the group arrived at Tin Roof. After the group took some photographs, they
“walked around the bar[.]” Ms. Miller greeted some friends from Vanderbilt and left
shortly after because she had to get up early the next morning. Ms. Miller observed E.L.
with Defendant before she left, and she stated that E.L. “seemed totally normal[.]” Ms.
Miller saw Defendant hand E.L. a drink before Ms. Miller left Tin Roof. Ms. Miller
stayed up until 3 a.m. on June 23 talking to a friend; she did not hear any unusual noise
outside of the apartment, did not hear a knock on the door, and did not receive any phone
calls.

Ms. Miller saw E.L. in the early afternoon of June 23 when E.L. returned to the
apartment. She testified that she was “initially pretty shocked” by E.L.’s appearance.
Ms. Miller stated that E.L. was “extremely disheveled” and that her hair appeared to have
“gotten wet and then been dried again.” She also noticed “vomit encrusted in her hair.”
E.L.’s clothing “had a very strange consistency to them, and her shirt also had some
vomit encrusted on it.” Ms. Miller observed “a huge gash” on E.L.’s knee and small
bruises on her legs. Ms. Miller had not observed bruises on E.L.’s legs previously. E.L.
did not remember how she sustained the bruises and laceration, but she assumed she had
fallen. After changing clothes, E.L. and Ms. Miller met their friend Madison Jensen and
ate breakfast at Pancake Pantry. Ms. Miller stated that E.L. “kept getting progressively
and progressively more and more ill.” While waiting in line at Pancake Pantry, E.L.
stated that “she had never felt this sick before in her life and she just didn’t even know
what had happened to make her feel that sick.” During the evening of June 24, Ms.
Miller overheard a phone conversation between E.L. and Defendant. While on
speakerphone, Defendant told E.L. “that he was being accused of some things that he
would’ve never done and that it wasn’t fair, and that all he wanted to do was come over
and hang out with her and that sort of thing.” Defendant also stated that “he would’ve
never done what he was being accused of.” Ms. Miller testified that she and E.L. were
“really confused” about Defendant’s statements. A few days later, E.L. told Ms. Miller
that “she was having some pain on her rear end and kind of the back side of her legs.”
Ms. Miller observed “some pretty big bruises” on E.L.’s buttocks and took a photograph
to show E.L.

- 24 -
On cross-examination, Ms. Miller clarified that E.L. also consumed alcohol at
their apartment prior to going to Tin Roof. However, Ms. Miller did not mix E.L.’s
drinks, so she did not know how much alcohol E.L. consumed. She stated that she was
not concerned that E.L. stayed at Tin Roof with Defendant because “they had been
hanging out for a while, so [E.L. and Ms. Miller] trusted him.”

Julianna Martel testified that, in June 2013, she lived in Nashville while taking an
organic chemistry class at Vanderbilt University and working part-time at Vanderbilt’s
football camps. She explained that she knew E.L. because they both participated on
Vanderbilt’s dance team. Ms. Martel met Defendant when he visited Vanderbilt’s
campus to learn about the football program. On June 22, 2013, Ms. Martel saw
Defendant at the Bristol Apartments. Around midnight, Ms. Martel arrived at Tin Roof
bar. She saw E.L. arrive shortly after with other members of the dance team. Ms. Martel
described E.L.’s behavior as “completely normal.” Ms. Martel also saw Defendant at Tin
Roof; she explained that she did not interact with him much, but she did not notice any
unusual behavior. Prior to leaving Tin Roof around 1:30 a.m., Ms. Martel spoke with
E.L. and noticed that she was holding “a blue drink[.]” Ms. Martel again described
E.L.’s behavior as normal.

Elizabeth Parnell testified that she was a women’s health nurse practitioner and
that she was “certified as a Sexual Assault Nurse Examiner for adults.” Defendant and
the State stipulated that Ms. Parnell was an expert in sexual assault examinations. On
June 26, 2013, Detective Mayo asked Ms. Parnell to travel to the emergency department
of Vanderbilt University Medical Center. Ms. Parnell met with E.L. in a triage room and
discussed E.L.’s health history and her reason for being at the hospital. E.L. told Ms.
Parnell that she remembered being at Tin Roof with friends around midnight, but she
could not remember anything until she woke up around 8 a.m. in Defendant’s dorm
room. Because more than seventy-two hours had passed between the offenses and Ms.
Parnell’s examination of E.L., Ms. Parnell explained that it was difficult to collect
evidence. Ms. Parnell noted that E.L. had bathed, changed clothes, and engaged in other
activities that could have reduced evidence since the offenses occurred. E.L. reported to
Ms. Parnell that “she drank more than usual” on the night of the offenses. E.L. also
informed Ms. Parnell that she had consensual vaginal intercourse around 5 p.m. on June
23.

E.L. signed a consent form, and Ms. Parnell conducted a physical examination of
E.L.’s person. Ms. Parnell also noted “physical trauma on her extremities and her
buttocks.” She observed a scabbed wound immediately below E.L.’s right knee and
bruises on the front of E.L.’s left thigh, below her left buttocks, on her right buttocks, and
on her left calf. Ms. Parnell also observed scratches on E.L.’s right and left ankles. Ms.
Parnell did not observe any visible trauma to E.L.’s vaginal wall or her rectum. Ms.
- 25 -
Parnell collected “pubic hair combings, labia swabs, vaginal swabs, a rectal swab, two
perianal swabs, two gumline swabs, the DNA buccal swabs from the inside of her cheeks
. . . , and then two swabs of . . . vaginal pool.” Ms. Parnell additionally collected blood
from E.L.

E.L. testified that in June 2013, she was a rising senior at Vanderbilt University
and lived at the Village at Vanderbilt with her roommate, Ms. Miller. E.L. met
Defendant approximately two weeks prior to the offenses at issue. On the afternoon of
June 22, 2013, E.L. spent some time with friends at her apartment. She had one mixed
drink before she and her friends took a cab to Tin Roof around midnight. When she
arrived at Tin Roof, she “took some pictures with some friends and said hi to people.”
She saw Defendant when she arrived; she was happy to see him, and Defendant “seemed
happy, socializing, [and] normal.” E.L. drank a gin and tonic mixed drink and stood with
a group of people socializing. E.L. drank a second drink–a Red Bull and vodka mixed
drink that Defendant took from a bartender and poured into her cup. E.L. drank a third
drink, a shot of whiskey that Defendant took from a bartender and gave her. E.L.’s fourth
drink was “blue and in a clear cup.” E.L. explained that she did not see the bartender
pour this drink but that Defendant brought her the drink. Defendant told E.L. that the
blue drink was the California version of a Long Island Iced Tea and that E.L. needed to
try it. Defendant gave E.L. another shot, but she “had taken a sip or two of the blue drink
and [she] was starting to feel a little intoxicated, so [she] gave that shot to somebody
else.” E.L. could not remember if she finished the blue drink.

E.L.’s next memory was “waking up in an unfamiliar room around 8 a.m. the next
morning” on June 23. E.L. stated that she was clothed and lying in a bed; she was alone
in the room. E.L. stated that she felt “off and confused and scared.” She noticed that her
keys and phone were sitting on top of a dresser near the bed, but she could not find her
shoes. She exited the room and realized that she was in Gillette Hall, so she knocked on
Jake Bernstein’s door across the hall from the room that she woke up in. Mr. Bernstein
did not immediately answer the door, so E.L. called him and he let her into his room.
E.L. also texted Defendant to “figure out what was going on.” E.L. left Gillette Hall
between 11 a.m. and noon; her vehicle was parked in front of Gillette Hall when she
exited the dorm. She “had no idea” how her vehicle had gotten there. As E.L. drove her
vehicle back to her apartment, she noticed “blood smeared across the glove box in front
of the passenger seat.” E.L. “notice[d] how [she] was in a lot of pain everywhere, and
particularly [her] left shoulder hurt and also [her] left wrist, and [she] had a wound on
[her] right knee that was actively bleeding.” When E.L. arrived at her apartment, her
roommate, Ms. Miller, was worried for her. E.L. “quickly changed and just quickly
rinsed off”; she noticed that her hair had gotten wet and dried overnight. After changing,
E.L. went to eat with Ms. Miller.

- 26 -
E.L. conversed with Defendant throughout the day of June 23. Defendant told her
that she “had gotten sick in his room and he had to spend the whole night taking care of
[her], it was so horrible for him, and he was not happy about it.” Eventually, Defendant
asked E.L. to come to his room in Gillette Hall around 5 or 6 p.m. E.L. and Defendant
discussed the previous night, and Defendant told her again that she threw up in his room
and that he cleaned it up. When E.L. pressed Defendant for more details about the
previous night, Defendant said that he did not want to talk about it because “it was
horrible.” After E.L. and Defendant spoke for a while, Defendant “suddenly started
being very nice” and “eventually he kind of suddenly initiated intercourse.” Defendant
did not wear a condom during the intercourse.

After hearing Defendant’s version of the events of the evening of June 22 and
early morning of June 23, E.L. learned more information “that was not consistent with
what [Defendant] had been telling [her.]” On the morning of June 26, officers from VPD
contacted E.L. She stated that her “biggest concern at that time was trying to protect
him” so that Defendant would not be removed from the Vanderbilt football team. During
her interview with VPD, E.L. saw some still photographs from the video surveillance
recorded in Gillette Hall during the offenses. E.L. agreed to undergo a medical-legal
exam at Vanderbilt University Medical Center; however, she stated that she “was worried
that [Defendant] would be mad at [her] because he would have to give a cheek swab if
[she] got the examination.”

E.L. stated that she had no memory of her movements in Gillette Hall between 4
a.m. and 8 a.m. on June 23. E.L. did not know Co-defendants McKenzie, Batey, or
Banks at the time the offenses occurred. E.L. testified that she did not give Defendant or
Co-defendants McKenzie, Banks, and Batey permission to touch her.

On cross-examination, E.L. agreed that she met Defendant in early 2013 when
Defendant visited Vanderbilt University on a recruiting trip. She agreed that she “saw”
Defendant three or four times in June prior to the current offenses, including earlier in the
week of June 22. Regarding the evening of June 22, E.L. recalled that she made her own
drink at her apartment and used three ounces of gin. E.L. agreed that she drank more
than usual at Tin Roof. She also agreed that she had blacked out previously but stated
that she had never passed out from consuming alcohol; she stated that she walked around
and spoke to people during the previous blackout.

After the State rested, Defendant moved the trial court to read Ms. Martel’s
testimony that was proffered outside the presence of the jury into the record. The trial
court allowed the testimony to be read to the jury. During the jury-out testimony, Ms.
Martel agreed that in July 2013, she told Detective Zocola that E.L. told her that a woman
named Angie gave E.L. the blue drink. On cross-examination, Ms. Martel stated that she
- 27 -
“never saw the drink being purchased and [she] never saw it being handed off.” Ms.
Martel only saw the blue drink in E.L.’s hand.

The State made the following election of offenses for counts one through seven:

Count [o]ne of the [i]ndictment alleges an act of aggravated rape against
[E.L.] and refers to the following conduct: [Co-defendant] Banks
penetrating the anus of [E.L.] with an object while [E.L.] was unconscious
on the floor of the dorm room located in Gillette Hall on Vanderbilt
University campus.

Count [t]wo of the [i]ndictment alleges an act of aggravated rape against
[E.L.], and refers to the following conduct: the digital penetration of
[E.L.]’s vagina by [Co-defendant] Batey while [E.L.] was unconscious on
the floor of the dorm room located in Gillette Hall on Vanderbilt University
campus.

Count [t]hree of the [i]ndictment alleges an act of aggravated rape against
[E.L.], and refers to the following conduct: the digital penetration of
[E.L.]’s anus by [Co-defendant] Batey while [E.L.] was unconscious on the
floor of the dorm room located in Gillette Hall on Vanderbilt University
campus.

Count [f]our of the [i]ndictment alleges an act of aggravated rape against
[E.L.], and refers to the following conduct: an act of fellatio upon [E.L.]’s
mouth or lips by [Co-defendant] Batey while [E.L.] was unconscious on the
floor of the dorm room located in Gillette Hall on Vanderbilt University
campus.

Count [f]ive of the [i]ndictment alleges an act of aggravated rape against
[E.L.], and refers to the following conduct: the penile penetration of
[E.L.]’s vagina by [Co-defendant] Batey while [E.L.] was unconscious on
the floor of the dorm room located in Gillette Hall on Vanderbilt University
campus.

Count [s]ix of the [i]ndictment alleges an act of aggravated sexual battery
against [E.L.], and refers to the following conduct: the touching of the
primary genital area of [E.L.] by [Co-defendant] Banks while [E.L.] was
unconscious on the floor of the dorm room located in Gillette Hall on
Vanderbilt University campus.

- 28 -
Count [s]even of the [i]ndictment alleges an act of aggravated sexual
battery against [E.L.], and refers to the following conduct: [Co-defendant]
Batey placing his buttocks on [E.L.]’s face while [E.L.] was unconscious
on the floor of the dorm room located in Gillette Hall on Vanderbilt
University campus.

The jury found Defendant guilty of aggravated rape in counts one through five, of
aggravated sexual battery in counts six and seven, and of unlawful photography in count
eight.

Sentencing hearing

At Defendant’s sentencing hearing, the State argued that Defendant was a standard
offender. The trial court admitted the presentence report. The trial court considered an
audio recording of an interview of Mr. Finley as well as a sworn affidavit from Mr.
Finley. During the interview, Mr. Finley stated that he overheard a conversation between
Defendant and Mr. Quinzio; Defendant told Mr. Quinzio that he had attempted to give a
date rape drug to a female acquaintance, Angelica LaVecchia, but he was unsuccessful
because he did not crush the pill up. The trial court entered a victim impact statement
from E.L., which stated the following:

I had intended to give a detailed Victim Impact Statement at today’s
sentencing hearing specific to the effects of [Defendant]’s actions. As a
result of the last sentencing hearing in this case, that is no longer something
I’m able to do. I ask that my prior statement be referenced. Also, two
professionals who have helped me through this and witnessed the impact on
me have submitted letters to you describing what they have seen; and I ask
that you consider those.

Please do not use my absence as an excuse for leniency as it in no
way diminishes the profound and insidious impact of [Defendant] on me
and my life. I still ask that he receive the full sentence allowed under the
law for orchestrating a sustained thirty-minute gang rape against me, a
defenseless woman who trusted him. The minimum sentence is not enough
for what this man did to me.

E.L.’s prior victim impact statement set out the following:

It’s hard for me to stand here on display and speak to you today
about the impact this has had on my life. The thought of sharing any more

- 29 -
of myself that hasn’t already been taken from me seems unbearable, and it
goes against every instinct that I have.

I was fearful of giving a victim impact statement at all because I
know that after three years and everything that has happened, I can never
do it justice, and I’m scared of that failure. It will never be possible for
anyone to put into words how this has affected me. You will never
understand what this has done to me if you aren’t standing in my shoes.
The humiliation, the pain, the isolation, being reduced to nothing but a
piece of flesh right before your eyes, it does something to you that is truly
impossible to describe.

I also know that it’s hard to encapsulate the impact this has had
because it is still ongoing. The attack on me didn’t end that day because I
relive it in every proceeding and experience additional attacks every time I
am in court.

When I let myself think of this[,] I become so angry and feel so
powerless, even today, that speaking coherently about it at all is a
challenge.

There are no words to describe the horror of those images from that
night and how it feels to watch yourself be dehumanized.

A detective showed me some of those photos and videos that you
and forty-two jurors have now seen so many times, and what I saw was
image after image of my genitalia covering the entire frame on the screen.
These stark, alien-looking fingers all over the flesh were moving from
frame to frame, with multiple hands reaching in. Videos played, and I
heard the laughing. I heard the degrading, taunting voices.

My memory of the images I was shown then starts to flash in and
out. The realization of all the different ways that they raped me, that people
can see these close up pictures of my body, the unknown of what was done
to me in those thirty minutes that wasn’t recorded-it was incomprehensible.
I wanted to run away and never stop running.

At one point[,] I saw what I first thought was a dead woman’s face.
I was suddenly overwhelmed by my memory of a family member’s corpse,
and then I realized that it’s me. They had taken a picture of my face during

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the attack. I was lifeless and my face was covered in something shiny. I
didn’t recognize myself.

Something permanent snapped that day. I felt myself detach from
my body. Now, I feel like I’m walking around in the shell of someone else.
A part of me went numb, a sense of being a whole person with hopes and
dreams about what’s possible in the world was now gone.

I was twenty-one years old when this happened. I’m twenty-four
today. Since the horror of that night, all I have wanted is for this to be
behind me, to be left alone and try to live my life in peace, but the process
to get justice has been a never-ending, constant misery that has twisted
itself so into my life that I can’t even remember what it was like in a time
when this wasn’t happening. Everything . . . [D]efendant has done in this
case and the media circus surrounding it have been a continuous disruption
repeatedly dragging me back every step I try to take forward. I can only
feel that . . . [D]efendant has intentionally wanted this to be as tortuous for
me as possible.

What happened to me that night has been compounded by the live-
streaming, tweeting, and international dissemination of every detail of how
I was degraded and humiliated for all posterity. In this age of technology,
anyone I ever meet in my personal or professional life can learn I am a rape
victim and the details of the case before I’ve even fully introduced myself
to them. There is no way for me to even know if any given person I
interact with has done so. This is something I now have to expect for the
rest of my life.

Again, the attack on me didn’t end that day because I have to relive
it in every proceeding and am constantly experiencing additional attacks.
The fact that I even had to breathe the same air as the men who did this to
me ever again . . . is unthinkable. But, I have endured all of this because
the details of the rape are so horrific, and there is so much irrefutable
evidence, I knew that they had to be stopped and held accountable.

This is a serious violent crime, and it must receive the enhanced
punishment it deserves. Any victim should know they would have justice if
they went through the process.

Additionally, the trial court admitted letters from two mental health professionals
who worked with E.L. that discussed the impact of the offenses on E.L. E.L. received
- 31 -
therapy during the summer of 2015. Dr. Nancy Cook stated that “[i]n spite of significant
effort on her part, [E.L.] reported persistent and recurrent distressing recollections of the
images and sounds, a sense of powerlessness and hopelessness, irritability, difficulty
concentrating and hypervigilance.” Dr. Cook diagnosed E.L. with Post-Traumatic Stress
Disorder (“PTSD”). Dr. Cook explained that because E.L. had to attend multiple trials
and proceedings related to the offenses, she relived the trauma of the offenses, which
“continually disrupt[ed] her academic planning and her emotional sense of wholeness.”
Additionally, Dr. Cook stated that the offenses “caused serious, long-term identifiable
emotional impacts and significant neurological changes in [E.L.’s] body.” Dr. Cook
stated that E.L. would need to continue therapy because of the significant trauma. Wanda
Swan, Director of The Respect Program at Emory University, stated in her letter that she
assisted E.L. as her on-campus crisis counselor. Ms. Swan stated that E.L.’s former
friends, dance team members, and coaches “harass[ed] and bull[ied] her, minimize[d] her
trauma, encourage[d] her to ‘just be normal,’ blame[d] her for the assault, and
question[ed] her judgment.” Additionally, Ms. Swan stated that “[t]here are pieces,
definitive properties of [E.L.’s] personality, character, mental and emotional capacity that
she will never be able to reunite with.”

The trial court also entered a letter from Reverend Kevin Riggs, who worked with
Defendant in the Jobs for Life program while Defendant was incarcerated. Reverend
Riggs stated that Defendant successfully completed the Jobs for Life class while
incarcerated. Additionally, the trial court entered a statement of Ms. LaVecchia and a
police report on the alleged incident between Defendant and Ms. LaVecchia. Ms.
LaVecchia stated that she was unaware of allegations that Defendant put a date rape drug
in her drink. The State and Defendant stipulated that Mr. Quinzio stated in an interview
that he did not remember Defendant mentioning incidents involving date rape drugs.

Defendant called Pernilla Linner, who testified that she lived in LaQuinta,
California, and knew Defendant because she had been friends with Defendant’s mother
for over twenty years. Ms. Linner stated that, in her interactions with Defendant, he was
always “very, very polite[,]” “very respectful[,]” and “[v]ery kind.” Ms. Linner also
testified that Defendant was respectful when playing sports with her children.
Additionally, she stated that Defendant was “kind of like a father figure” to his brothers;
she described Defendant as “a perfect sibling.” On cross-examination, Ms. Linner stated
that she was not aware that Defendant used illegal steroids and cocaine and consumed
alcohol while under the age of twenty-one. However, she stated that this knowledge did
not change her opinion of Defendant.

Frank Gill testified that he met Defendant three years prior to the sentencing
hearing when Mr. Gill volunteered in a prison ministry. Mr. Gill did not believe that

- 32 -
Defendant would be a danger to the community after serving his sentence. Mr. Gill also
testified that Defendant had “tremendous potential” for rehabilitation.

Shannon Fix testified that she lived in Palm Desert, California, and that Defendant
was “like a nephew to [her].” She explained that she had known Defendant for
approximately seven years because Defendant’s brothers were friends with her son. Ms.
Fix testified that Defendant watched over her three children and that she was comfortable
leaving Defendant alone with her children. She stated that Defendant transferred from
the University of San Diego to a local community college when one of his brothers was
diagnosed with retinitis pigmentosa; Defendant volunteered to coach his brothers’
football team, drove his brothers to medical appointments and school, and helped them
with homework. Ms. Fix stated that Defendant regularly attended religious services with
his family and described Defendant as “endearingly naive, very cerebral, [and] very
bright.” On cross-examination, Ms. Fix testified that Defendant expressed remorse that
he had not done more to help E.L. and stop the offenses.

Defendant gave an allocution and expressed his remorse for his involvement in the
offenses. He apologized to E.L. and stated that he was “ashamed of [him]self and that
[he] was so irresponsible with alcohol, which le[d] to something tragic.”

The trial court stated that it had considered “the evidence that was presented at
trial, all of the motions that were heard, the sentencing hearing, Presentence Report, the
evidence at the sentencing hearing, Principles of Sentencing, arguments of counsel, the
nature of the criminal conduct involved here, as well as the enhancement and mitigating
factors.” The trial court found that “the victim was particularly vulnerable because of her
physical incapacity[,]” “the victim suffered psychological injuries as a result of this
incident[,]” and that Defendant abused a position of private trust because he “formally or
informally stood in a relationship to the victim that promoted confidence, reliability and
faith[.]” The trial court also found that Defendant was a leader in the commission of the
offenses because “he [wa]s the one that could have stopped this incident.”

The trial court additionally found that Defendant “did not have any prior criminal
convictions[,]” that Defendant had “a lot of family and community support,” and that
Defendant “may be remorseful, seemed remorseful at least.” The trial court concluded
that “the enhancement factors outweigh[ed] the mitigating factors in this particular case.”
The trial court sentenced Defendant, as a Range I standard offender, to serve seventeen
years each for counts one through five, aggravated rape, nine years each for counts six
and seven, aggravated sexual battery, and two years for count eight, unlawful
photography. The trial court ordered all the sentences to run concurrently for a total
effective sentence of seventeen years in the Tennessee Department of Correction.

- 33 -
Defendant filed a timely motion for new trial. He argued, in pertinent part, that (1)
the evidence was insufficient; (2) the trial court erred in denying his motions to dismiss
the superseding indictment; (3) the trial court erred in excluding the testimony of Dr. J.
Sidney Alexander; (4) the trial court erred in denying Defendant’s motion to strike the
venire during voir dire or to grant additional peremptory strikes; (5) the trial court erred
by failing to admonish the prospective jurors at the beginning of voir dire; (6) the trial
court erred by instructing the jury on “presence and companionship” regarding criminal
responsibility; (7) the trial court erred in excluding evidence of the prior bad acts of Co-
defendants Batey, Banks, and McKenzie; (8) the trial court erred in excluding
Defendant’s voicemail that he left on Mr. Quinzio’s phone; and (9) the trial court erred in
denying Defendant’s motion to suppress his statement from June 27, 2013. The trial
court denied Defendant’s motion for new trial. Defendant now timely appeals.

II. Analysis

(1) Denial of motion to dismiss superseding indictment

Defendant argues that the trial court violated “his rights to due process and
protection against double jeopardy under the Tennessee Constitution, Art. 1, § 10, and the
Fifth Amendment of the United States Constitution” by denying his motion to dismiss the
superseding indictment. He asserts that the trial court should have dismissed the
superseding indictment because jeopardy attached to the original indictment when the
trial court swore in the jury at Defendant’s first trial. Defendant argues that the original
indictment failed to charge aggravated rape and aggravated sexual battery and contends
that the State was “prohibited from adding offenses to the superseding indictment when it
failed to include them in the original indictment.” Additionally, he asserts that none of
the exceptions to the mandatory joinder rule apply in this case, so the State should have
joined the charges of aggravated rape and aggravated sexual battery to the charges of
assault in the original indictment. Further, he argues that the State engaged in
prosecutorial vindictiveness by seeking a superseding indictment. In his reply brief,
Defendant argues that he should have been retried on the original indictment because
jeopardy attached to the original indictment at the first trial, and therefore, the State was
prohibited by Tennessee Rule of Criminal Procedure 7(b) from amending the indictment
without Defendant’s consent.

The State responds that Defendant’s second trial did not violate double jeopardy
principles because double jeopardy does not preclude the retrial of Defendant. The State
argues that the jeopardy from Defendant’s first trial did not terminate when the trial court
granted Defendant’s motion for a new trial; essentially, the jeopardy from the first trial

- 34 -
“continued” to the superseding indictment.9 Additionally, the State contends that the
issuance of the superseding indictment did not violate double jeopardy principles because
“the superseding indictment was issued well before the second trial, giving . . .
[D]efendant ample notice of the charges.” Further, the State asserts that Defendant
received adequate notice of the charges in the superseding indictment because it charged
the same offenses as the initial indictment except for the omission of the destruction of
evidence charge. The State argues that it properly exercised its discretion by obtaining a
superseding indictment that clarified “that the aggravated rape and aggravated sexual
battery charges were based on the incapacity of the victim.”

On August 9, 2013, the Davidson County Grand Jury returned an eight-count
indictment against Defendant and Co-defendants Banks, Batey, and McKenzie. Counts
one through five alleged aggravated rape and used the following language:

THE GRAND JURORS of Davidson County, Tennessee, duly
impaneled and sworn, upon their oath, present that:

BRANDON E. BANKS, CORY LAMONT BATEY, [Defendant],
and JABORIAN DASHON MCKENZIE between the 22nd day of June,
2013, and the 23rd day of June, 2013, in Davidson County, Tennessee and
before the finding of this indictment, did intentionally, knowingly, or
recklessly engage in unlawful sexual penetration of [E.L.] and Brandon E.
Banks, Cory Lamont Batey, [Defendant], and Jaborian Dashon McKenzie
were aided or abetted by one or more other persons, in violation of
Tennessee Code Annotated § 39-13-502, and against the peace and dignity
of the State of Tennessee.

Counts six and seven alleged aggravated sexual battery using the following
language:

THE GRAND JURORS of Davidson County, Tennessee, duly
impaneled and sworn, upon their oath, present that:

BRANDON E. BANKS, CORY LAMONT BATEY, [Defendant],
and JABORIAN DASHON MCKENZIE between the 22nd day of June,

9
We note that Justice Holmes’ concept of “continuing jeopardy” set out in Kepner v. United
States, 195 U.S. 100, 134 (1904) (Holmes, J., dissenting), has been cited disapprovingly in numerous
decisions of the United States Supreme Court. Swisher v. Brady, 438 U.S. 204, 225 (1978); United States
v. Scott, 437 U.S. 82, 90 n.6 (1978); Breed v. Jones, 421 U.S. 519, 534-35 (1975); United States v.
Jenkins, 420 U.S. 358, 369 (1975); Green v. United States, 355 U.S. 184, 189, 192 (1957); Seiber v. State,
542 S.W.2d 381, 385 (Tenn. Crim. App. 1976) (citing Breed, 421 U.S. at 533).
- 35 -
2013, and the 23rd day of June, 2013, in Davidson County, Tennessee and
before the finding of this indictment, did intentionally engage in unlawful
sexual contact with [E.L.], and Brandon E. Banks, Cory Lamont Batey,
[Defendant], and Jaborian Dashon McKenzie were aided or abetted by one
or more other persons, in violation of Tennessee Code Annotated § 39-13-
504, and against the peace and dignity of the State of Tennessee.

The record on appeal includes a document entitled Defendant’s “Memorandum of
Law Regarding Counts 1 Through 7 of Indictment[.]”10 In this memorandum, Defendant
argued that “[c]areful examination of Counts 1 through 7 of the instant indictment shows
that the only criminal offense as to which every element is alleged is assault in violation
of Tennessee Code Annotated § 39-13-101(a)(3)[.]” Thus, Defendant asserted that the
language of counts one through five in the indictment failed to allege “force, coercion, a
weapon or any other article.” Defendant also noted that the indictment of counts one
through five failed to allege bodily injury or that “any defendant knew or had reason to
know that the victim was mentally defective, mentally incapacitated or physically
helpless.” Defendant alleged that the indictment for counts six and seven similarly failed
to allege aggravated sexual battery under Tennessee Code Annotated section 39-13-
504(a)(3). In its response, the State argued that “[a]n indictment which references the
statute defining the offense is sufficient and satisfies the constitutional and statutory
requirements of [State v. Hill, 954 S.W.2d 725 (Tenn. 1997)], giving the accused
sufficient notice of the charged offense.”

During a jury-out hearing in Defendant’s first trial, Defendant alleged that “the
facts found by the Grand Jury only make out a misdemeanor offense of assault.”
Defendant asked the trial court to instruct the jury only on assault. The trial court noted
that the State charged alternative theories in the aggravated rape and aggravated sexual
battery counts and elected to proceed on the allegation that E.L. was mentally
incapacitated during the offenses. The trial court found that the Davidson County Grand
Jury indicted Defendant and Co-defendants Banks, Batey, and McKenzie with aggravated
rape and aggravated sexual battery. The trial court concluded that “the parties ha[d] been
given sufficient notice[.]” The jury found Defendant guilty of four counts of aggravated

10
This memorandum of law was not accompanied by a motion in the record. In a later filing,
Defendant stated that he was “not intending to move the Court for any relief but rather submitting
authority for why the Court shouldn’t charge more than what has been indicted.” Further, this filing,
titled “DEFENDANTS’ REPLY TO THE STATE’S ‘RESPONSE’ REGARDING COUNTS 1-7 OF
THE INDICTMENT” (hereinafter “Reply”), states that Defendant “has never claimed that any count of
the indictment is defective, and . . . Defendant does not seek relief based on any alleged defect.” Instead,
Defendant “ask[ed] the Court to instruct the jury on the sole offense that the facts found by the grand jury
makes out and to decline to instruct on any other or greater offense.”
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rape, one count of attempted aggravated rape, two counts of aggravated sexual battery,
one count of tampering with evidence, and one count of unlawful photography..

On June 15, 2015, 139 days after the jury found him guilty, Defendant filed a
motion for mistrial or, in the alternative, a motion to set aside the verdict on the basis that
the jury foreperson made a material misrepresentation during voir dire. At the motion
hearing on the same day,11 the jury foreperson gave testimony that “was inconsistent with
the answers provided during voir dire.” On June 23, 2015, the trial court granted
Defendant’s motion; the trial court’s order notes that Defendant “did not request a new
trial pursuant to Rule 33 out of concern that [he] may waive any appellate issues.” The
trial court stated that, “as a practical matter, a new trial, if granted, would have to be
pursuant to Rule 33 of the Tennessee Rules of Criminal Procedure.” The trial court
stated that “[a] mistrial is granted prior to the verdict in a trial” and that a defendant could
challenge juror misconduct in a motion for new trial. The trial court cited to State v.
Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993), for the conclusion that “[w]hen
conduct becomes apparent after the jury has rendered a verdict, a new trial is the
appropriate remedy.” The trial court concluded that the jury foreperson committed
misconduct when he failed to disclose during voir dire that he was the named victim in a
twenty-three count indictment in a statutory rape case and granted Defendant’s motion.

On July 7, 2015, the Davidson County Grand Jury returned a superseding
indictment charging Defendant and Co-defendants Banks, Batey, and McKenzie with five
counts of aggravated rape, two counts of aggravated sexual battery, and one count of
unlawful photography. The aggravated rape counts alleged the following:

THE GRAND JURORS of Davidson County, Tennessee, duly
impaneled and sworn, upon their oath, present that:

BRANDON E. BANKS, CORY LAMONT BATEY, [Defendant],
and JABORIAN DASHON MCKENZIE on the 23rd day of June, 2013, in
Davidson County, Tennessee and before the finding of this indictment, did
intentionally, knowingly, or recklessly engage in unlawful sexual
11
The motion for mistrial was not included in the record on appeal. A transcript of this motion
hearing was also not included in the record on appeal. As we have previously noted, Defendant bears the
burden of preparing an adequate record on appeal. See Ballard, 855 S.W.2d at 560. Defendant’s burden
of preparing an adequate record on appeal includes the duty to “have prepared a transcript of such part of
the evidence or proceedings as is necessary to convey a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b). This court is
precluded from considering an issue presented for review when the record is incomplete and does not
contain a transcript of the proceedings relevant to the issue, or portions of the record upon which the
appellant relies. Ballard, 855 S.W.2d at 560-61 (citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn.
Crim. App. 1988).
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penetration of [E.L.] and Brandon E. Banks, Cory Lamont Batey,
[Defendant], and Jaborian Dashon McKenzie did aid or abet each other in
the commission of the offense and Brandon E. Banks, Cory Lamont Batey,
[Defendant], and Jaborian Dashon McKenzie knew or had reason to know
that [E.L.] was mentally incapacitated or physically helpless, in violation of
Tennessee Code Annotated § 39-13-502, and against the peace and dignity
of the State of Tennessee.

The aggravated sexual battery counts alleged the following:

THE GRAND JURORS of Davidson County, Tennessee, duly
impaneled and sworn, upon their oath, present that:

BRANDON E. BANKS, CORY LAMONT BATEY, [Defendant],
and JABORIAN DASHON MCKENZIE on the 23rd day of June, 2013, in
Davidson County, Tennessee and before the finding of this indictment, did
intentionally engage in unlawful sexual contact with [E.L.], and Brandon E.
Banks, Cory Lamont Batey, [Defendant], and Jaborian Dashon McKenzie
did aid or abet each other in the commission of the offense and Brandon E.
Banks, Cory Lamont Batey, [Defendant], and Jaborian Dashon McKenzie
knew or had reason to know that [E.L.] was mentally incapacitated or
physically helpless, in violation of Tennessee Code Annotated § 39-13-504,
and against the peace and dignity of the State of Tennessee.

On September 11, 2015, Defendant filed a “Motion to Dismiss Superseding
Indictment,” which argued that “[t]he superseding indictment allege[d] an additional
element in Counts 1-7 that was not alleged in the original indictment, specifically that the
defendants ‘knew or had reason to know that [the alleged victim] was mentally
incapacitated or physically helpless’ in the counts alleging aggravated rape and
aggravated sexual battery.”12 Defendant contended that the inclusion of additional or
different elements violated his protection against double jeopardy. He also asserted that
the jeopardy that attached to the original indictment continued due to the mistrial, and
therefore, the State should proceed under the original indictment.

The State responded that it could properly proceed on the superseding indictment
because the trial court’s grant of a new trial “returned . . . Defendant to the same position
he was in prior to the first trial[.]” At a hearing on the motion on October 19, 2015, the
trial court found that “there [were] no new charges that [were] brought with the
superseding indictment, only an additional element.” The trial court stated that the grant

12
Second alteration in the original text.
- 38 -
of a new trial “place[d] the defendants back in the same position that they were initially
and, as such, . . . a superseding indictment can be brought[.]” On October 20, 2015, the
trial court filed an order denying Defendant’s motion to dismiss the superseding
indictment. The trial court found “that the indictment [wa]s appropriate and the charges
therein should not be dismissed.”

On June 13, 2016, the first day of Defendant’s second trial, Defendant again filed
a motion to dismiss the superseding indictment and argued that the indictment violated
the prohibition against double jeopardy. The court minutes from that day reflect that the
trial court denied this motion. The trial court entered a written order denying the motion
on June 22, 2016, and again concluded that “[t]he superseding indictment which was
filed after the mistrial was not amended with additional charges nor does it require
joinder.”

After the trial court swore in the jury, the State read the indictments, and
Defendant pled not guilty, Defendant filed a motion to dismiss the indictments.
Defendant argued that because jeopardy attached during the first trial and continued to
the second trial, he was placed in jeopardy twice for the same offenses once the jury was
sworn in the second trial. Defendant asserted that jeopardy continued from the first trial
because the trial court declared a mistrial. Defendant also argued that the State should
have proceeded on the original indictment because the State cannot obtain a superseding
indictment while jeopardy continues from a previous indictment. The State argued that it
had properly obtained a superseding indictment. The trial court denied the motion, and
the trial proceeded.

Initially, we must determine whether the trial court granted a motion for mistrial or
a motion for new trial after the conclusion of Defendant’s first trial. Although Defendant
apparently filed a motion for mistrial, the trial court concluded that a new trial was the
appropriate remedy to address the juror misconduct that came to light after the jury
rendered its verdict and Defendant’s first trial concluded. “A mistrial is granted in a case
in which the jury is discharged without a verdict; a motion for new trial is made after a
judgment has been rendered.” State v. Terry Sanders, No. M2011-00426-CCA-R3-CD,
2012 WL 5948885, at *4 (Tenn. Crim. App. Nov. 15, 2012) (quoting Howell v. Davis,
299 S.E.2d 336, 337 (S.C. 1983)) (internal quotation marks omitted), perm. app. denied
(Tenn. Mar. 5, 2013). Because Defendant filed his motion after the jury rendered its
verdict and because the trial court essentially treated the motion as a motion for new trial,
we will interpret Defendant’s motion as a motion for new trial.

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(A) Double jeopardy

The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution, made applicable to the states through the Fourteenth Amendment, states,
“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V. Similarly, the Tennessee Constitution guarantees “[t]hat
no person shall, for the same offense, be twice put in jeopardy of life or limb.” Tenn.
Const. art. I, § 10. Both clauses provide three distinct protections: “(1) protection against
a second prosecution for the same offense after acquittal; (2) protection against a second
prosecution for the same offense after conviction; and (3) protection against multiple
punishments for the same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).

A defendant acquitted of criminal charges may not be subjected to retrial on those
same charges. State v. Harris, 919 S.W.2d 323, 327 (Tenn. 1996); see also Ball v. United
States, 163 U.S. 662, 671 (1896). Additionally, “when a conviction has been set aside
because of insufficiency of the evidence, double jeopardy forbids giving the prosecution
‘another opportunity to supply evidence which it failed to muster in the first
proceeding.’” Harris, 919 S.W.2d at 327 (quoting Burks v. United States, 437 U.S. 1, 11
(1978)). However, a retrial of a defendant who has successfully appealed an issue other
than sufficiency of the evidence does not subject the defendant to double jeopardy. Id.
(citing Burks, 437 U.S. at 11; Ball, 163 U.S. at 672; State v. Campbell, 641 S.W.2d 890,
893 (Tenn. 1982)); see also Lockhart v. Nelson, 488 U.S. 33, 38 (1988) Jeffers v. United
States, 432 U.S. 137, 152 (1977); Price v. Georgia, 398 U.S. 323, 326 (1970); Green v.
United States, 355 U.S. 184, 189, 192 (1957). Further, “upon appellate reversal of a
conviction[,] the Government is not limited at a new trial to evidence presented at the
first trial, but is free to strengthen its case in any way it can by the introduction of new
evidence.” United States v. Shotwell Mfg. Co., 355 U.S. 233, 243 (1957). This is more
commonly known as the “clean slate” rule. See State v. Kacy Dewayne Cannon, No.
E2011-02624-CCA-R3-CD, 2012 WL 6049639, at *8 (Tenn. Crim. App. Dec. 5, 2012),
perm. app. denied (Tenn. Apr. 10, 2013). Thus, the mere fact that Defendant’s case was
retried after the trial court granted a new trial on the basis of juror misconduct did not
place Defendant under jeopardy twice for the same criminal conduct.

The Tennessee Supreme Court stated the following regarding the State’s power to
seek superseding indictments:

The power to seek a superseding indictment lies within th[e] broad
discretion of the State. A superseding indictment is an indictment obtained
without the dismissal of a prior indictment. Where there has been no
jeopardy on the first indictment, a grand jury may return a new indictment
against an accused even though another indictment is pending. Although
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the State may not bring a superseding indictment to harass or intimidate the
accused, a legitimate decision to bring a superseding indictment is uniquely
within the State’s authority. Thus, the State may obtain a superseding
indictment at any time prior to trial without dismissing the pending
indictment and may then select the indictment under which to proceed at
trial.

State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000) (internal citations and footnote
omitted).

When the trial court granted Defendant’s motion, the judgments from the first trial
were vacated, and Defendant returned to the pretrial stage of the criminal proceeding,
with the exception of the jury’s acquittal of aggravated rape in count four. Essentially, it
was as if Defendant’s first trial never happened. Thus, because Defendant’s case had not
proceeded to trial, the State had the discretion to seek a superseding indictment. See id.

In any event, excluding count four, which we will discuss in depth later in this
opinion, the original and superseding indictments charged the same offenses. The
Tennessee Supreme Court has previously held that “specific reference to a statute within
the indictment may be sufficient to place the accused on notice of the charged offense.”
State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000); see also State v. Carter, 988 S.W.2d 145,
149 (Tenn. 1999), Ruff v. State, 978 S.W.2d 95, 100 (Tenn. 1998). Here, the original
indictment did not list the aggravating factor of the aggravated rape and aggravated
sexual battery counts, but the indictment did refer to the appropriate section of Tennessee
Code Annotated for those offenses. Thus, the original indictment was still sufficient to
put Defendant on notice of the offenses for which he was charged. Additionally, because
the original and the superseding indictment both charged Defendant with committing
aggravated rape and aggravated sexual battery, the State did not improperly amend the
offenses by obtaining a superseding indictment.

Because the State had the discretion to seek a superseding indictment after the trial
court ordered a new trial and because the original and superseding indictment both
charged Defendant with aggravated rape and aggravated sexual battery, the State did not
place Defendant in jeopardy twice for the same offense by seeking the superseding
indictment.

(B) Mandatory joinder of offenses

Under Tennessee Rule of Criminal Procedure 8(a), “[t]wo 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
- 41 -
“based on the same conduct or arise from the same criminal episode”; are “within the
jurisdiction of a single court”; and are “known to the appropriate prosecuting official at
the time of the return of the indictment(s), presentment(s), or information(s).” Tenn. R.
Crim. P. 8(a)(1). “A defendant shall not be subject to separate trials for multiple offenses
falling within Rule 8(a)(1) unless they are severed pursuant to Rule 14.” Tenn. R. Crim.
P. 8(a)(2). All three of the criteria listed in Rule 8(a)(1) must exist before multiple
offenses are required to be joined.

The findings of fact made by a trial court on the mandatory joinder of offenses
“are binding upon this court unless the evidence contained in the record preponderates
against them.” State v. Baird, 88 S.W.3d 617, 620 (Tenn. Crim. App. 2001) (citing State
v. England, 19 S.W.3d 762, 766 (Tenn. 2000)). “However, this court is not bound by the
trial court’s conclusions of law.” Id. (citing State v. Simpson, 968 S.W.2d 776, 779
(Tenn. 1998)). The application of the law to the facts is a question of law that this court
reviews de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).

We have previously concluded that the original indictment and the superseding
indictment charged Defendant with the same offenses: aggravated rape, aggravated
sexual battery, and unlawful photography. Because the indictments charged the same
offenses, the State did not “save back” any offenses that arose from the same conduct or
the same criminal episode. See Tenn. R. Crim. P. 8(a), Advisory Comm’n Cmts. Thus,
we conclude that Rule 8 is not implicated in Defendant’s case. Additionally, because
Defendant sought and received a new trial, the State’s superseding indictment did not
cause Defendant to endure unnecessary court proceedings. The trial court properly
concluded that the State was not required to join the offenses alleged in the superseding
indictment with the offenses alleged in the original indictment.

(C) Plain error in the superseding indictment

In our review of this case, we note that the jury acquitted Defendant of aggravated
rape and convicted Defendant of attempted aggravated rape in count four at the
conclusion of the first trial. Once a jury acquits a defendant of a charge, the State may
not pursue a conviction for that offense after the trial court has ordered a new trial. Thus,
the State should not have sought a superseding indictment for aggravated rape in count
five. Instead, the State should have sought a superseding indictment for attempted
aggravated rape. Because Defendant was subjected to jeopardy for aggravated rape in
count four during the original trial and the jury acquitted him of that offense, the
prosecution for aggravated rape in count five in the second trial was plain error. Thus,
we vacate Defendant’s conviction for aggravated rape in count five. Because the original
jury found Defendant guilty of the lesser included offense of attempted aggravated rape
and the second jury found Defendant guilty of the greater offense of aggravated rape, we
- 42 -
conclude that the trial court should modify Defendant’s conviction in count five to
attempted aggravated rape. We will address the sufficiency of this conviction later in this
opinion. Additionally, on remand, the trial court should enter an amended judgment
reflecting the imposition of the minimum sentence within the applicable range for count
five.

(2) Prosecutorial vindictiveness

Defendant asserts that “[t]he State’s election to file a superseding indictment and
include charges in the second indictment that it failed to include on the original
indictment creates a ‘realistic likelihood’ of prosecutorial retaliation.” Defendant argues
that because the original indictment only charged him with assault and the superseding
indictment charged him with aggravated rape and aggravated sexual battery, the
superseding indictment greatly increased his punishment exposure, creating a rebuttable
presumption of prosecutorial vindictiveness. The State does not specifically address this
argument. Because Defendant raises this issue for the first time on appeal, we conclude
that he has waived plenary review of this issue and we will review only for plain error.

Rule 36(a) of the Tennessee Rules of Appellate Procedure states that “[n]othing in
this rule shall be construed as requiring relief be granted to a party responsible for an
error or who failed to take whatever action was reasonably available to prevent or nullify
the harmful effect of an error.” Tenn. R. App. P. 36(a). “The failure to make a
contemporaneous objection constituted waiver of the issue on appeal.” State v. Gilley,
297 S.W.3d 739, 762 (Tenn. Crim. App. 2008). However, “[w]hen necessary to do
substantial justice,” this court may “consider an error that has affected the substantial
rights of a party” even if the issue was waived. Tenn. R. App. P. 36(b). Such issues are
reviewed under plain error analysis. State v. Hatcher, 310 S.W.3d 788, 808 (Tenn.
2010).

Plain error relief is “limited to errors that had an unfair prejudicial impact which
undermined the fundamental fairness of the trial.” State v. Adkisson, 899 S.W.2d 626,
642 (Tenn. Crim. App. 1994). In order to be granted plain error relief, five criteria must
be met: (1) the record must clearly establish what occurred in the trial court; (2) a clear
and unequivocal rule of law must have been breached; (3) a substantial right of the
accused must have been adversely affected; (4) the accused did not waive the issue for
tactical reasons; and (5) consideration of the error is “necessary to do substantial justice.”
Adkisson, 899 S.W.2d at 641-42 (quoting Tenn. R. App. P. 36(b)); see also State v. Smith,
24 S.W.3d 274, 282-83 (Tenn. 2000) (formally adopting the Adkisson standard for plain
error relief). When it is clear from the record that at least one of the factors cannot be
established, this court need not consider the remaining factors. Smith, 24 S.W.3d at 283.

- 43 -
The defendant bears the burden of persuasion to show that he is entitled to plain error
relief. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).

It is a violation of basic due process to punish a person for choosing to exercise his
or her constitutional rights. North Carolina v. Pearce, 395 U.S. 711, 724-25 (1969). The
Tennessee Supreme Court has held that, even in the absence of proof of actual bad faith
or malice, there is a rebuttable presumption of prosecutorial vindictiveness that may arise
if the circumstances pose a “realistic likelihood” of prosecutorial retaliation. State v.
Phipps, 959 S.W.2d 538, 546 (Tenn. 1997). Our supreme court established the following
criteria for assessing whether a “realistic likelihood” of prosecutorial retaliation exists:
(1) “[w]hether the right asserted by the defendant would result in duplicable expenditures
of prosecutorial resources”; (2) “whether the prosecution would be required to do over
again what it thought it had already done correctly once”; (3) “whether the prosecutor has
a personal stake or an interest in self vindication”; (4) “whether institutional biases
militated against retrial of a decided question”; and (5) “whether the prosecutorial
decision to increase the charge or sentence was made after the initial trial was completed
rather than in a pre-trial context.” Id. If the circumstances in a particular case “give rise
to a realistic likelihood of prosecutorial retaliation[,]” the State must establish, by clear
and convincing evidence, that a legitimate purpose motivated the challenged decision.
Id.

If proven, allegations of prosecutorial vindictiveness or selective prosecution in
the institution of a prosecution may warrant dismissal of the indictment based on
constitutional concerns. State v. Skidmore, 15 S.W.3d 502, 508 (Tenn. Crim. App. 1999)
(citing Blackledge v. Perry, 417 U.S. 21, 27 (1974)). However, if a prosecutor has
probable cause to believe the accused committed the underlying offense, the decision to
prosecute the accused rests entirely within the prosecutor’s discretion, subject to certain
constitutional limitations. Id. (citing State v. Superior Oil, Inc., 875 S.W.2d 658, 660
(Tenn. 1994); Quillen v. Crockett, 928 S.W.2d 47, 51 (Tenn. Crim. App. 1995)).

Here, we conclude that the facts before us do not create a rebuttable presumption
of prosecutorial vindictiveness because there is no “reasonable likelihood” of
prosecutorial retaliation. See Phipps, 959 S.W.2d at 546. Defendant has not presented
any evidence that the prosecutors involved in his trials had “a personal stake or an
interest in self[-]vindication[.]” See id. The State has consistently asserted that it sought
a superseding indictment to “clarify” that it intended to prosecute Defendant for
aggravated rape and aggravated sexual battery on the theory that the victim, E.L., was
mentally incapacitated during the offenses. Further, there is no evidence that any
“institutional biases militate[] against retrial” because the trial court ordered a new trial
prior to when the State sought a superseding indictment. See State v. Frank Michael
Vukelich, No. M1999-00618-CCA-R3-CD, 2001 WL 1044617, at *8 (Tenn. Crim. App.
- 44 -
Sept. 11, 2001) (concluding that “no institutional biases militated against retrial of a
decided question, because the Defendant was to be tried again anyway”), perm. app.
denied (Tenn. Apr. 1, 2002).

Further, Defendant has not established that the State acted with actual malice
when it sought a superseding indictment prior to Defendant’s second trial. See United
States v. Goodwin, 457 U.S. 368, 384 (1982). As we have previously concluded, the
original indictment and the superseding indictment both charged Defendant with
aggravated rape, aggravated sexual battery, and unlawful photography. Because
Defendant has not established a presumption of prosecutorial vindictiveness or the
presence of actual vindictiveness, we conclude that no substantial right was affected by
the State’s decision to obtain a superseding indictment. Therefore, Defendant is not
entitled to plain error relief on this ground.

(3) Exclusion of Defendant’s intoxication expert

Defendant contends that the trial court erred in excluding the testimony of a
defense witness, Dr. Sidney Alexander. He asserts that a major part of his trial strategy
was arguing that “he was so intoxicated from alcohol at the time of the alleged offenses
that he did not have the capacity to form the intent necessary to be criminally responsible
for the offenses committed by his co-defendants.” Defendant argues that the trial court’s
decision prejudiced him and violated his right to due process and a fair trial. The State
responds that “the trial court acted within its discretion in excluding the testimony based
on the defendant’s untimely notice and the expert’s lack of qualifications.”

On September 15, 2014, prior to his first trial, Defendant filed a notice of intent to
offer expert testimony on his mental state. The notice stated that Defendant intended to
call Dr. Stephanie Stolinsky at trial. The record reveals that the State received Dr.
Stolinsky’s report on October 13, 2014. On October 17, 2014, the State filed a motion to
exclude Dr. Stolinsky’s testimony on the ground that her testimony would not be
admissible under Tennessee Rules of Evidence 401 and 702. Dr. Stolinsky’s report was
not included in the record on appeal as an exhibit, but it was attached to the State’s
motion. Dr. Stolinsky did not testify at Defendant’s first trial.

On September 25, 2015, Defendant filed a “Motion for Leave of Court to Tender
Motion on Experts[.]” The Motion stated that, on September 11, 2015, the trial court
held a scheduling conference and set a date for filing of notice of experts. Defendant
asked for an extension of thirty days to file a notice of expert testimony. Defendant
attached an email to this motion from the Criminal Court Clerk to all prosecutors and
defense attorneys involved in the case. The email referred to a meeting in the trial
judge’s chambers that was held that morning and stated that September 25, 2015, was the
- 45 -
deadline for filing motions on experts. The trial court granted this motion on September
25, 2015, according to a minute entry from that date. On October 12, 2015, Defendant
filed a “Motion for Leave of Court to File Pretrial Motions[.]” This motion stated that
Defendant had “identified and retained particular experts” and asked the trial court to
extend its original deadline for the filing of pretrial motions on October 9, 2015. At a
motion hearing on October 19, 2015, the trial court set a deadline of December 1, 2015,
for Defendant to file a notice of expert testimony.

On May 6, 2016, the State filed a motion to exclude Defendant’s experts, Jim
Kempvanee and Dr. Alexand

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4424048. Public record. Not legal advice.