# State of Tennessee v. Jeremiah McDaniel

> Court of Criminal Appeals of Tennessee · February 24, 2022

URL: https://www.frixlaw.com/law-library/cases/6317427

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** February 24, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Norma McGee Ogle
- **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/6317427

## How later opinions describe it (automated extraction)

- applying the Bise standard to alternative sentencing
- applying the Bise standard to “all sentencing decisions”

## Opinion text

02/24/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 20, 2021

STATE OF TENNESSEE v. JEREMIAH MCDANIEL

Appeal from the Criminal Court for Monroe County
No. 17-322 Andrew M. Freiberg, Judge
___________________________________

No. E2019-01862-CCA-R3-CD
___________________________________

The Appellant, Jeremiah McDaniel, was convicted in the Monroe County Criminal Court
of solicitation of a minor to commit sexual battery, a Class A misdemeanor, and received
a sentence of one hundred eighty days to be served in jail. On appeal, the Appellant
contends that the trial court erred by constructively amending the indictment from
solicitation of a minor to commit sexual battery by an authority figure to solicitation of a
minor to commit sexual battery because sexual battery is not a lesser-included offense of
sexual battery by an authority figure; that the evidence is insufficient to support the
conviction because the evidence fails to show lack of consent; that the trial court should
have dismissed the case or stricken the victim’s trial testimony because the State failed to
produce the victim’s audio-recorded statement; that the trial court erred by admitting
photographs of Facebook messages allegedly between the Appellant and the victim into
evidence; that the trial court erred by limiting his cross-examination of the victim, by
advising the victim of the victim’s Fifth Amendment rights, and by allowing the victim to
invoke those rights; and that his six-month sentence in confinement is excessive. Based
upon the record and the parties’ briefs, we conclude that sexual battery without consent is
not a lesser-included offense of sexual battery by an authority figure but that sexual battery
without consent is a lesser-included offense of solicitation of a minor to commit sexual
battery by an authority figure. Therefore, the trial court properly instructed the jury on the
lesser-included offense. However, we also conclude that the evidence is insufficient to
support the Appellant’s conviction of solicitation of a minor to commit sexual battery.
Therefore, the conviction is reversed and vacated, and the original charge is dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
and Vacated, Charge Dismissed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Jeremiah McDaniel.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney
General; Stephen D. Crump, District Attorney General; and Ashley Ervin and Clay Collins,
Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In October 2017, the Monroe County Grand Jury indicted the Appellant for
solicitation of a minor to commit sexual battery by an authority figure, a Class D felony.
The minor was D.B., who was seventeen years old at the time of the alleged crime.1 The
Appellant went to trial on May 21, 2019.

At trial, the victim testified that he currently had a felony theft charge pending
against him in Monroe County but that the State had not offered him anything in exchange
for his testimony against the Appellant. The victim grew up in Madisonville, lived with
his mother, and was never in the custody of the Department of Children’s Services (DCS).
However, he had been on probation in the juvenile court system. The victim was friends
with A.M., who was the Appellant’s adopted son, and the victim had spent the night in the
Appellant’s home. The Appellant was a caseworker for DCS. The victim never went on
any trips with the Appellant’s family, but he had talked with the Appellant about the
Appellant’s work.

The victim testified that on the night of May 23, 2017, he was at a residence next to
the Catholic church in Madisonville and that his friend, J.B., was with him. The victim’s
cellular telephone received a written message from the Appellant “[t]hrough Messenger on
Facebook,” and they began sending written messages back and forth. The victim had never
communicated with the Appellant via Facebook Messenger before that night. The State
asked how the victim knew he was corresponding with the Appellant. The victim stated
that the Appellant’s profile picture was on the Appellant’s messages and that the Appellant
identified himself as A.M.’s “dad.”

The victim testified that the Appellant asked through Messenger if the victim knew
where J.B. was located. At that time, the Appellant was J.B.’s DCS caseworker, and J.B.
was trying to avoid the Appellant because J.B. had failed a drug screen. The victim lied to
the Appellant and responded that he did not know J.B.’s whereabouts. The Appellant asked
if the victim was working, which the victim thought was unusual, and the victim responded

1
We will refer to the victim and any individuals who may have been minors at the time of the crime
by their initials to protect their identities.
-2-
that he was “doing a couple of odd jobs” like mowing grass. The Appellant told the victim
that he “probably” knew of a way the victim could make some money. He then sent the
following message to the victim: “‘I pay you to let me jerk you off[.]’” The victim said
the Appellant offered him money and “Xanaxes.”

The victim testified that he used another cellular telephone to take photographs of
the messages on his cellular telephone, and the State introduced the twelve photographs,
labeled A through L, into evidence as collective Exhibit 1. The photographs showed as
follows:2

You missed a call from Jeremiah
- Tue at 9:39 PM

CALL BACK

[The Appellant:] Hey this Jeremiah [A.M.’s] dad can u call me

[The victim:] Hello

[The Appellant:] You haven’t seen [J.B.] have you or heard where he could
be

[The victim:] No I haven’t Im not friends with him. Did he do something?

[The Appellant:] He’s in state custody and he ran away on a trial home
placement apparently he’s talking to this girl named Josie do you know
anything about her I know she still lives in the trailer parks but she moved
out [of] town and I have a word that he could be with her

....

[The victim:] Yea I know her but I have [no] idea where she could be. If I
find out where she’s staying I’ll [let you know]

[The Appellant:] OK thank you

2
The photographs of the messages in Exhibit 1 appear to have been labeled out of order. Before
trial, the State filed a motion in limine, requesting that the trial court find the Facebook messages admissible.
The State attached the photographs, again labeled A through L, to its motion. We have chosen to show the
messages in the order they appeared with the State’s motion.
-3-
[The victim:] No problem its good hearing from you! Do you still remember
who I am?

[The Appellant:] Yes I do how have you been doing

[The victim:] Good just a couple rough patches here and there

[The Appellant:] R u working

[The victim:] No but I mow a few peoples yards ever so often cause I have
to help take care of my grandmother

[The Appellant:] Well I may have some way for u to make some money

[The Appellant:] Do u have a gf jw

[The Appellant:] ?

[The victim:] Nope single as [I] can be lol and that would be great of you I
appreciate it

[The Appellant:] Well I have 10 I could get to u tonight but . . .

[The Appellant:] And I can give you some more Friday when I get paid

[The victim:] What?

....

[The Appellant:] I pay u to let me jerk u off i’ll bring you the money tonight
[and] the rest Friday

[The victim:] Just wait until tomorrow . . . so I can get all the money at once

[The Appellant:] Tomorrow’s just Thursday

[The Appellant:] And I swear to God I’m a man of my word I will pay you
on Friday

[The Appellant:] I’ll even bring you a Xanax tonight to help you calm down

-4-
The victim testified that after he received the Appellant’s messages, he “didn’t know
what to, how to really think about it at first.” However, he and J.B. “started talking about
it” and decided to have the Appellant meet the victim “at the Exxon.” The victim said that
he telephoned the Appellant to let the Appellant know where to meet him and that he
recognized the Appellant’s voice because he had talked with the Appellant on the telephone
previously. The Appellant and the victim made plans to meet at the Exxon in Madisonville,
go to an automatic teller machine (ATM), and go to the DCS office.

The victim testified that J.B. and a female named S.W. dropped him off at the
Exxon. J.B. and S.W. then parked across the street. The Appellant was already at the
Exxon, and the victim recognized the Appellant’s vehicle because the victim had been in
the vehicle previously. The victim got into the Appellant’s vehicle, the Appellant drove to
the ATM, and the Appellant withdrew one hundred dollars. The Appellant then drove to
the DCS office parking lot. While the Appellant was driving, he asked if the victim
“wanted to do any Xanax’s before or after,” and the victim answered, “[B]efore.” The
Appellant gave the victim a Xanax pill and “parked out back over that little bridge . . .
looking thing.” While the Appellant and the victim were sitting in the Appellant’s vehicle,
J.B. and S.W. pulled up. J.B. opened the Appellant’s door, the victim got out of the
passenger side of the Appellant’s vehicle, and the victim ran to S.W.’s car “with the
money.” The victim and J.B. returned to the residence beside the Catholic church. The
victim identified the Appellant in the courtroom as the man who picked him up at the
Exxon.

On cross-examination, the victim acknowledged that the messages he exchanged
with the Appellant were not dated. He said, though, that he was “pretty sure” they occurred
on the night of May 23, 2017, and that he met the Appellant at the Exxon in the early
morning hours of May 24, 2017. The victim later spoke with Detective Travis Jones. The
victim said that he did not give his cellular telephone to Detective Jones because he “didn’t
want to” and acknowledged that he hid the telephone from the detective because he “didn’t
want anybody snooping through [his] phone.” The victim said that he later broke his
telephone and acknowledged that his telephone “disappeared.” The victim used another
cellular telephone to take the photographs of the messages he exchanged with the
Appellant. The victim sent the photographs to J.B.’s mother.

The victim acknowledged that he lied to the Appellant about not knowing J.B.’s
whereabouts. The victim said that although he and the Appellant did not discuss the
victim’s age, the Appellant “already knew my [age].” At the time of this incident, the
victim and the Appellant were Facebook “friends,” but the victim and the Appellant had
never corresponded via Facebook Messenger. The victim acknowledged that the State was
in the process of prosecuting him for theft and that the State had offered him diversion in
that case.
-5-
On redirect-examination, the victim testified that the Appellant knew his age
because the victim and A.M. were in the same grade at school. The victim said he did not
give the Appellant’s messages to law enforcement.

Travis Jones testified that in May 2017, he was a detective with the Monroe County
Sheriff’s Department (MCSD). At some point, Detective Jones received a referral from
the DCS Special Investigations Unit about the Appellant’s Facebook messages to the
victim. Terry Ryan, a DCS investigator from Knoxville, worked with Detective Jones on
the case.

Detective Jones testified that he “track[ed] down” J.B. and had J.B. interviewed at
the Child Advocacy Center (CAC) by someone who specialized in forensic interviews.
J.B. was “a runaway juvenile,” and law enforcement took him into custody after his
interview. The Appellant was thirty-three years old and worked for DCS in Madisonville.
Detective Jones obtained the Appellant’s bank records and video of the bank’s ATM.
Detective Jones did not try to obtain the Appellant’s Facebook records, explaining that
“I’ve tried to get Facebook records before, and Facebook basically tells you they don’t
recognize anything from Tennessee as far as subpoenas and they’re not really cooperative
at all.” Detective Jones contacted the victim, but the victim refused to go to the CAC for
an interview. Therefore, Detective Jones and Mr. Ryan met with the victim behind the
Catholic church on Old Tellico Highway. Detective Jones audio recorded the victim’s
interview, but the interview was lost after Detective Jones left the MCSD to take other
employment.

On cross-examination, Detective Jones testified that J.B.’s interview at the CAC
occurred on May 25, 2017. Detective Jones said that he did not know J.B. was “drug
screened” before the interview or that J.B. tested positive for amphetamine,
methamphetamine, “benzos,” and marijuana. Detective Jones interviewed the victim
behind the Catholic church on May 30, 2017. J.B.’s mother was present for the victim’s
interview, and the victim’s trial testimony differed from what he told Detective Jones. The
victim did not show his cellular telephone to Detective Jones because the victim said he
had “deleted everything off his phone.” Detective Jones obtained J.B.’s cellular telephone
for a forensic examination, but the telephone did not contain any relevant evidence. On
redirect-examination, Detective Jones testified that DCS provided him with the
photographs in Exhibit 1.

J.B. testified that at the time of the Appellant’s trial, criminal charges were pending
against him but that he had not discussed the charges with the State. When J.B. was sixteen
years old, he went into DCS custody due to truancy and drug use. The Appellant was J.B.’s
first caseworker and was J.B.’s caseworker in May 2017. J.B. had to meet with the
-6-
Appellant every month. J.B. said that he knew the Appellant previously because J.B. used
to be best friends with the Appellant’s son, A.M.

J.B. testified that on the night of May 23, 2017, he and the victim were at Abernathy
Trailer Park in Madisonville. The Appellant texted the victim’s telephone via Facebook,
and the two of them exchanged multiple messages. The Appellant offered the victim “some
Xanaxes” and one hundred dollars if the victim would let the Appellant “jerk [the victim]
off.” J.B. said that he and the victim “kind of played it along” and that he and S.W. dropped
off the victim at the Skyway Market on Highway 411. The Appellant was parked at a gas
pump, and the victim got into the Appellant’s silver Toyota FJ Cruiser. When the
Appellant pulled out of the Skyway parking lot, S.W. and J.B. followed him. The
Appellant pulled into People’s Bank, so S.W. and J.B. pulled into a Walmart parking lot.
S.W. and J.B. then followed the Appellant and the victim to the DCS parking lot.

J.B. testified that he put on a ski mask and a toboggan because he was “on the run”
from the Appellant. He ran to the Appellant’s vehicle and “slung open” the driver’s door.
The Appellant “freaked out,” and the victim got out of the Appellant’s vehicle and ran.
The victim got into S.W.’s vehicle, but J.B. “didn’t catch up in time.” The Appellant tried
to block S.W.’s vehicle from leaving the parking lot, but S.W. and the victim managed to
drive away. S.W. “backtracked” and picked up J.B. Later that night, the victim sent a text
message to the Appellant, stating that he would not turn in the Appellant in exchange for
five hundred dollars. The victim and the Appellant “met up,” the Appellant gave the money
to the victim, and the victim “split” the money with J.B.

On cross-examination, defense counsel asked if J.B. and the victim planned to rob
the Appellant. J.B. answered, “No. After the messages sent to him and I seen how sick he
was, then yes.” J.B. said that he used his cellular telephone to take photographs of the
Appellant’s and the victim’s messages and that he did not remember if he gave his
telephone to Detective Jones. He acknowledged that he was taking amphetamine,
methamphetamine, “benzos,” and marijuana at the time of his CAC interview.

Christian Wade testified that he was an IT technician for People’s Bank of East
Tennessee and that he had access to the bank’s video surveillance. Mr. Wade obtained
video of the Madisonville branch’s ATM for the early morning hours of May 24, 2017.
The State played the video for the jury, and we have reviewed the video. The video shows
that at 3:22 a.m. on May 24, 2017, a silver Toyota FJ Cruiser stopped at the ATM. The
driver, a white male, obtained cash from the machine. The passenger side of the vehicle
was not visible.

At the conclusion of Mr. Wade’s testimony, the State rested its case, and defense
counsel made a motion for judgment of acquittal on the basis that the State failed to prove
-7-
that the Appellant was an authority figure to the victim. The trial court granted the
Appellant’s motion for judgment of acquittal on the indicted offense of solicitation of a
minor to commit sexual battery by an authority figure but submitted the case to the jury on
the lesser-included offense of solicitation of a minor to commit sexual battery. The jury
convicted the Appellant of that offense, a Class A misdemeanor, and the trial court
sentenced him to six months in jail.

II. Analysis

A. Lesser-Included Offense

The Appellant contends that the trial court committed reversible error by
constructively amending the indictment to solicitation of a minor to commit sexual battery
because sexual battery is not a lesser-included offense of sexual battery by an authority
figure. The State argues that the trial court properly instructed the jury on solicitation of a
minor to commit sexual battery. We conclude that sexual battery without consent is not a
lesser-included offense of sexual battery by an authority figure but that sexual battery
without consent is a lesser-included offense of solicitation of a minor to commit sexual
battery by an authority figure. Therefore, the trial court did not err by instructing the jury
on solicitation of a minor to commit sexual battery without consent.

At the conclusion of the State’s proof, the Appellant made a motion for judgment
of acquittal. In a memorandum of law submitted to the trial court, the Appellant argued
that the State failed to show he was an authority figure to the victim because he did not
hold a position of trust with the victim or have supervisory authority or disciplinary power
over the victim as a DCS employee. The State also filed a memorandum, arguing that the
Appellant held a position of trust with the victim because the victim “knew the defendant
not only as a DCS worker but also as the father of a close friend.” The trial court agreed
with the Appellant and found that “the authority figure element is lacking.” However, the
trial court concluded, over the objections of both the Appellant and the State, that sexual
battery without consent was a lesser-included offense of sexual battery by an authority
figure.

First, the trial court noted that this court “explicitly” stated in two cases that sexual
battery was a lesser-included offense of sexual battery by an authority figure. Specifically,
this court stated in State v. Billy Ramer, No. W2015-01692-CCA-R3-CD, 2016 WL
1446108, at *1 (Tenn. Crim. App. at Jackson, Apr. 12, 2016), that the defendant was
charged with sexual battery by an authority figure but “pled guilty to the lesser-included
offense of sexual battery.” In State v. Travis Lurry, No. W2010-01932-CCA-R3-CD, 2011
WL 2698317, at *2 (Tenn. Crim. App. at Jackson, July 12, 2011), this court stated that the

-8-
trial court vacated the defendant’s jury conviction of sexual battery by an authority figure
but found the defendant “guilty of the lesser-included offense of sexual battery.”

The trial court also concluded that sexual battery without consent was a lesser-
included offense of sexual battery by an authority figure pursuant to State v. Burns, 6
S.W.3d 453 (Tenn. 1999). The trial court explained,

I don’t think that they have two different elements under the [Burns] test. . .
. [S]exual battery by an authority figure, if you go under the part the victim
was at the time of the offense 13 years of age or older but less than 18 years
of age, and if you look at sexual battery, 39-13-505(a)(2) where it talks about
consent and the defendant knows or had reason to know that the contact, the
victim did not consent. What’s alleged in this case is money for a handjob.
It is a pay for play. It is alleged as a transaction. And a minor cannot consent,
I don’t believe, under our laws. And then it becomes, well, did the defendant
know or have reason to know that the victim did not consent? And that would
go to the age.

Accordingly, the trial court granted the Appellant’s motion for judgment of acquittal as to
the indicted offense of solicitation of a minor to commit sexual battery by an authority
figure but ruled that it was going to submit the case to the jury on the offense of solicitation
of a minor to commit sexual battery.

During the final charge, the trial court instructed the jury on sexual battery under a
theory of force or coercion and under a theory of lack of consent. See Tenn. Code Ann. §
39-13-505(a)(1), (2). The State subsequently argued in its closing argument that force or
coercion did not exist in this case and that the jury should find the Appellant guilty based
on the “alternative” element, lack of consent. Therefore, based on the trial court’s ruling
and the State’s closing argument, the issue before us is whether solicitation of a minor to
commit sexual battery without consent is a lesser-included offense of solicitation of a minor
to commit sexual battery by an authority figure. The first question we must address is
whether the trial court properly determined that sexual battery without consent is a lesser-
included offense of sexual battery by an authority figure. We note that while this court
stated, in dicta, in Billy Ramer and Travis Lurry that sexual battery is a lesser-included
offense, this court has never analyzed the issue.

In Burns, our supreme court set out a three-part test for determining whether an
offense was a lesser-included offense of the charged offense. Part (a) provided that an
offense was a lesser-included offense if all of its statutory elements were included within
the statutory elements of the offense charged. Burns, 6 S.W.3d at 466. Part (b) provided
that an offense was a lesser-included offense if it failed to meet the definition in part (a)
-9-
only because it contained a statutory element or elements establishing (1) a different mental
state indicating a lesser kind of culpability and/or (2) a less serious harm or risk of harm to
the same person, property, or public interest. Id. at 466-67. Finally, part (c) provided that
an offense was a lesser-included offense if it consisted of facilitation, attempt, or
solicitation of the offense charged. Id. at 467. The trial court was to instruct the jury on
all lesser-included offenses if the evidence was legally sufficient to support a conviction
for the lesser-included offense. Id. at 469.

In 2009, Tennessee Code Annotated section 40-18-110(f) was amended to provide
that an offense is a lesser-included offense if:

(1) All of its statutory elements are included within the statutory
elements of the offense charged;

(2) The offense is facilitation of the offense charged or of an offense
that otherwise meets the definition of lesser included offense in subdivision
(f)(1);

(3) The offense is an attempt to commit the offense charged or an
offense that otherwise meets the definition of lesser included offense in
subdivision (f)(1); or

(4) The offense is solicitation to commit the offense charged or an
offense that otherwise meets the definition of lesser included offense in
subdivision (f)(1).

“Subsection (f) effectively codified parts (a) and (c) of the Burns test.” State v. Howard,
504 S.W.3d 260, 269 (Tenn. 2016). Furthermore, subsection (g) was added to specify
certain lesser-included offenses. See Tenn. Code Ann. § 40-18-110(g) (providing that
second degree murder is a lesser-included offense of first degree murder, voluntary
manslaughter is a lesser-included offense of first degree premeditated murder and second
degree murder, aggravated sexual battery is a lesser-included offense of aggravated rape,
and sexual battery and sexual battery by an authority figure are lesser-included offenses of
rape and aggravated rape). In Howard, our supreme court determined that subsections (f)
and (g) did not abrogate part (b) of the Burns test and that part (b) continues to be applicable
to determining whether an offense is a lesser-included offense. Id. at 270.

As to the offense of solicitation of a minor, Tennessee Code Annotated section 39-
13-528(a)(5), (6) provides that

- 10 -
[i]t is an offense for a person eighteen (18) years of age or older, by means
of oral, written or electronic communication, electronic mail or internet
services, directly or through another, to intentionally command, request, hire,
persuade, invite or attempt to induce a person whom the person making the
solicitation knows, or should know, is less than eighteen (18) years of age,
or solicits a law enforcement officer posing as a minor, and whom the person
making the solicitation reasonably believes to be less than eighteen (18) years
of age, to engage in conduct that, if completed, would constitute a violation
by the soliciting adult of [sexual battery by an authority figure or sexual
battery.]

Relevant to this case, sexual battery by an authority figure is defined as “unlawful sexual
contact with a victim by the defendant” if “[t]he victim was, at the time of the offense,
thirteen (13) years of age or older but less then eighteen (18) years of age” and “[t]he
defendant was at the time of the offense in a position of trust, or had supervisory or
disciplinary power over the victim by virtue of the defendant’s legal, professional or
occupational status and used the position of trust or power to accomplish the sexual
contact.” Tenn. Code Ann. § 39-13-527(a)(1), (3)(A). Sexual battery, in relevant part, is
“unlawful sexual contact with a victim by the defendant or the defendant by a victim” and
“[t]he sexual contact is accomplished without the consent of the victim and the defendant
knows or has reason to know at the time of the contact that the victim did not consent[.]”
Tenn. Code Ann. § 39-13-505(a)(2).

Solicitation of a minor to commit sexual battery by an authority figure is a Class D
felony whereas solicitation of a minor to commit sexual battery is a Class A misdemeanor.
See Tenn. Code Ann. §§ 39-13-505(c), -527(b), -528(c). We note that it is not a defense to
a solicitation charge that “the solicitation was unsuccessful [or] that the conduct solicited
was not engaged in.” Tenn. Code Ann. § 39-13-528(b).

In this case, the trial court found that all of the statutory elements in sexual battery
were included within the statutory elements of sexual battery by an authority figure. In
comparing the elements of the two offenses pursuant to Tennessee Code Annotated section
40-18-110(f)(1), both require unlawful sexual contact. The greater offense of sexual
battery by an authority figure also requires that the victim be thirteen to seventeen years
old and that the defendant be an authority figure to the victim. Sexual battery does not
contain an age element for the victim but contains an element that the sexual contact was
accomplished without the victim’s consent and the defendant knew or had reason to know
at the time of the contact that the victim did not consent. The trial court reasoned that the
lack-of-consent element in sexual battery was satisfied by the age element in sexual battery
by an authority figure because the trial court found that a minor cannot consent to sex.

- 11 -
A minor cannot consent to any form of statutory rape. State v. Collier, 411 S.W.3d
886, 899 (Tenn. 2013). Likewise, a minor cannot consent to rape of a child. State v. Jones,
889 S.W.2d 225, 227 (Tenn. Crim. App. 1994). Against that backdrop, this court has held
that a minor cannot consent to rape by coercion, which is the unlawful sexual penetration
of the victim accompanied by the use of parental, custodial, or official authority over a
child less than fifteen years of age. State v. Tarrants Chandler, No. M2013-00279-CCA-
R3-CD, 2014 WL 3055972, at *18 (Tenn. Crim. App. at Nashville, July 7, 2014) (citing
Tenn. Code Ann. §§ 30-13-501(1), -503(a)(1)). As this court explained in Tarrants
Chandler,

Similarly to the crime of rape by coercion, the crimes of rape of a child and
statutory rape all impose an age limitation on the victim. See [Tenn. Code
Ann.] § 39-13-501(1) (defining coercion as “the use of parental, custodial, or
official authority over a child less than fifteen (15) years of age”); [Tenn.
Code Ann.] § 39-13-522(a) (victim of rape of a child is more than three but
less than thirteen years of age); [Tenn. Code Ann.] § 39-13-506(b)(1), (2)
(victim of statutory rape at least thirteen but less than eighteen years of age);
Collier, 411 S.W.3d at 899. The legislature specifically included the age
restriction of “less than fifteen years” for the crime of rape by coercion. This
age restriction is indicative of an intent to create a specific offense when the
victim is less than fifteen years old, much like rape of a child and statutory
rape are age[-]specific offenses. Because a minor victim may not consent to
the crimes of rape of a child or statutory rape, it follows that a minor victim
also may not consent to rape by coercion. See Collier, 411 S.W.3d at 899.
We see no reason to conclude that a [fourteen-year-old] who would be
incapable of consenting to a statutory rape would somehow be capable of
consenting to a rape by coercion. Such a conclusion is contradictory to the
special protections that the legislature and supreme court have carved out for
sexual offenses committed against minors. Therefore, it was not error for the
trial court to exclude the defense of consent, and the defendant is not entitled
to any relief on this claim.

Id.

We agree with this court’s reasoning in Tarrants Chandler. The legislature
specifically included the age restriction of “thirteen (13) years of age or older but less then
eighteen (18) years of age” for the crime of sexual battery by an authority figure. The age
restriction indicates that the legislature intended to create an age-specific offense when the
victim is thirteen to seventeen years old, just as the legislature intended to create the age-
specific offenses of rape of a child, statutory rape, and rape by coercion. Because a minor
victim may not consent to any of those crimes, it follows that a minor victim also may not
- 12 -
consent to sexual battery by an authority figure. Therefore, it would appear that the lack-
of-consent element in sexual battery corresponds to the age element in sexual battery by
an authority figure. However, the lack-of-consent element in sexual battery also requires
that the defendant knew or had reason to know at the time of the contact that the victim did
not consent. The age element in sexual battery by an authority figure does not require that
the defendant knew or had reason to know the victim’s age. Accordingly, we conclude
that sexual battery without consent is not a lesser-included offense of sexual battery by an
authority figure under Tennessee Code Annotated section 40-18-110(f)(1).

That said, the Appellant was indicted for solicitation of a minor to commit sexual
battery by an authority figure. Solicitation of a minor requires that a defendant knew or
should have known that the victim was less than eighteen years old. Therefore, we think
that all of the statutory elements in sexual battery without consent are incorporated into the
elements of solicitation of a minor to commit sexual battery by an authority figure and that
the former is a lesser-included offense of the latter under Tennessee Code Annotated
section 40-18-110(f)(1). Thus, the trial court did not err by instructing the jury on
solicitation of a minor to commit sexual battery without consent as a lesser-included
offense of solicitation of a minor to commit sexual battery by an authority figure.

B. Sufficiency of the Evidence

The Appellant claims that the evidence is insufficient to support his conviction of
solicitation of a minor to commit sexual battery because the proof fails to show lack of
consent. The State argues that the evidence is sufficient because the Appellant offered,
and the victim accepted, the “mood altering” drug Xanax, which “indicated” to the
Appellant that the victim was not “fully on board” with having sexual contact with the
Appellant. We agree with the Appellant that the evidence is insufficient to support the
conviction.

When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate court is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate
view of the evidence and all reasonable or legitimate inferences which may be drawn
therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning
the credibility of witnesses and the weight and value to be afforded the evidence, as well
as all factual issues raised by the evidence, are resolved by the trier of fact. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the evidence,
nor will this court substitute its inferences drawn from the circumstantial evidence for those
inferences drawn by the jury. Id. Because a jury conviction removes the presumption of
- 13 -
innocence with which a defendant is initially cloaked at trial and replaces it on appeal with
one of guilt, a convicted defendant has the burden of demonstrating to this court that the
evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and
‘[t]he inferences to be drawn from such evidence, and the extent to which the circumstances
are consistent with guilt and inconsistent with innocence, are questions primarily for the
jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313
S.W.2d 451, 457 (Tenn. 1958)). “The standard of review ‘is the same whether the
conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).

As stated previously, the statute for solicitation of a minor to commit sexual battery
provides that

[i]t is an offense for a person eighteen (18) years of age or older, by means
of oral, written or electronic communication, electronic mail or internet
services, directly or through another, to intentionally command, request, hire,
persuade, invite or attempt to induce a person whom the person making the
solicitation knows, or should know, is less than eighteen (18) years of age . .
. to engage in conduct that, if completed, would constitute . . . [s]exual
battery[.]

Tenn. Code Ann. § 39-13-528(a)(6). Sexual battery is “unlawful sexual contact with a
victim by the defendant or the defendant by a victim” and “[t]he sexual contact is
accomplished without the consent of the victim and the defendant knows or has reason to
know at the time of the contact that the victim did not consent[.]” Tenn. Code Ann. § 39-
13-505(a)(2). “‘Sexual contact’ includes the intentional touching of the victim’s [or] the
defendant’s . . . intimate parts, or the intentional touching of the clothing covering the
immediate area of the . . . intimate parts, if that intentional touching can be reasonably
construed as being for the purpose of sexual arousal or gratification.” Tenn. Code Ann. §
39-13-501(6).

In State v. Denny Merrill Phillips, the defendant was charged with solicitation of a
minor to commit rape, which was defined in that case as unlawful sexual penetration of the
victim by the defendant or the defendant by the victim “‘accompanied by any of the
following circumstances,’ one of which is the ‘sexual penetration is accomplished without
the consent of the victim and the defendant knows or has reason to know at the time of the
- 14 -
penetration that the victim did not consent.’” No. E2010-02233-CCA-R3-CD, 2012 WL
765216, at *5 (Tenn. Crim. App. at Knoxville, Mar. 12, 2012) (citing Tenn. Code Ann. §
39-13-503(a)(2)). At trial, the evidence showed that the forty-year-old defendant followed
the sixteen-year-old male victim into the bathroom at Cove Lake Park twice. See Denny
Merrill Phillips, No. E2010-02233-CCA-R3-CD, 2012 WL 765216, at *1-3. The first time,
the defendant did not say anything to the victim. Id. at *1. However, the second time, the
defendant asked if the victim “‘would like to give [the defendant] a blow job.’” Id. at *2.
The victim told him no, so the defendant offered to pay the victim one hundred dollars. Id.
The victim again said no and telephoned 911. Id. The jury convicted the defendant as
charged of solicitation of a minor to commit rape. Id. at *4.

On appeal, the defendant claimed that the evidence was insufficient to support the
conviction because the State “failed to present any facts or evidence to the jury from which
it could have reasonably concluded that the sexual penetration solicited by the defendant
would have occurred without the victim’s consent.” Id. at 6. The State argued that the
victim’s lack of consent was established by his telling the defendant no after the first
solicitation; therefore, the defendant knew when he offered the victim one hundred dollars
that any sex act that occurred would be without the victim’s consent. Id. This court agreed
with the defendant that the evidence was insufficient, explaining,

The precise words used by the defendant lend themselves most
naturally to an interpretation that the defendant would not have engaged in a
sex act with the victim without the victim’s consent. The victim testified that
the defendant asked him if he would “like” to give him a “blow job,” which
implies that a sex act would only occur if the victim desired it. The victim
further testified that the defendant offered to give him $100, which would
also imply that the defendant was soliciting a consensual sex act and that no
sex act would occur without the victim’s agreement to do so in exchange for
money.

....

The defendant made no statement to the victim, police, or anyone else
indicating that he intended to engage in a sex act with the victim without the
victim’s consent. He did not physically touch the victim. There is no
evidence in the record that the defendant carried rope, duct tape, or other
material for restraining the victim or that the defendant had a weapon of any
sort. When the victim refused his advances, the defendant made no effort to
prevent him from leaving and made no attempt to follow him. The victim
was even afforded the opportunity to photograph the defendant’s license
plate before he escaped. In short, there is no evidence in this case that the
- 15 -
defendant solicited the victim with the intention of raping him without his
consent.

Id.3

Turning to the instant case, the Appellant sent a message to the victim in which the
Appellant offered the victim one hundred dollars if the victim would “let” the Appellant
touch the victim’s penis. The Appellant also offered the victim Xanax to help the victim
calm down. Although the State asserts that the Appellant’s offering the victim Xanax to
calm down is proof that the Appellant knew or should have known that the victim did not
consent, the victim testified that the Xanax was part of the payment for the sexual act and
that the Appellant asked if he wanted to take the Xanax “before or after” the sexual contact.
Moreover, there was no evidence that the Appellant needed the Xanax to overcome the
victim’s lack of consent because unlike the victim in Denny Merrill Phillips, the victim in
this case expressed consent. The victim responded to the Appellant’s solicitation by stating
that he wanted “all of the money at once.” The victim then spoke with the Appellant on
the telephone, agreed to meet the Appellant at the Exxon, got into the Appellant’s vehicle,
consumed the Xanax offered by the Appellant, and accepted the Appellant’s payment of
one hundred dollars. Although the victim apparently had no intentions of going through
with the sexual contact, he certainly indicated to the Appellant that he was willing to
participate right up until J.B. opened the driver’s door of the Appellant’s vehicle. The
Appellant never made any statements indicating that he intended to engage in a sex act
with the victim without the victim’s consent, he did not touch the victim, and he did not try
to stop the victim from exiting his vehicle. Although the Appellant tried to stop S.W.’s
vehicle from leaving the parking lot, the victim had just taken the Appellant’s money.
Therefore, we must conclude that there is no evidence in this case that the Appellant
solicited the victim with the intention of committing sexual battery without the victim’s
consent. Accordingly, the Appellant’s conviction is reversed and vacated, and the original
charge against him is dismissed. Despite this conclusion, we will address the Appellant’s
remaining claims in the event of further appellate review.

C. Victim’s Recorded Statement

The Appellant claims that the trial court should have dismissed the indictment
against him or should have stricken the victim’s trial testimony because the State failed to
preserve the victim’s audio-recorded statement to Detective Jones. The State argues that

3
This court found, though, that the evidence was sufficient to support a conviction of solicitation
of a minor to commit statutory rape. Id. at *1. However, given that statutory rape is not a lesser-included
offense of rape, this court concluded that the defendant’s conviction could not be amended to solicitation
of a minor to commit statutory rape. Id.
- 16 -
the trial court properly remedied the situation with a simple jury instruction. We conclude
that the Appellant is not entitled to relief on this issue.

Before trial, the Appellant filed a motion to prohibit the victim from testifying at
trial pursuant to Tennessee Rule of Criminal Procedure 26.2 and filed a motion to dismiss
the charge against him pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), because
the State negligently destroyed the victim’s audio-recorded interview with Detective Jones.
In a pretrial hearing, the victim testified for the State that he showed the messages on his
telephone to Detective Jones. On cross-examination, the victim testified that he was “pretty
sure” he showed the messages to the detective and that he later broke his telephone. At the
conclusion of the victim’s hearing testimony, defense counsel requested the victim’s
recorded statement to Detective Jones, and the trial court stated that “there is no statement
to produce.”4

Detective Jones testified for the Appellant at the hearing. Detective Jones said that
the victim did not show him any messages. On cross-examination, Detective Jones testified
that he received the photographs of the messages from DCS and that he showed the
photographs to the victim during the victim’s May 30 interview. Detective Jones did not
attempt to obtain the victim’s telephone because the victim claimed he had deleted the
messages from the telephone. Detective Jones said that he audio recorded the victim’s
interview and that the recording would confirm that he showed the photographs to the
victim. Detective Jones stated that he downloaded the audio-recorded interview onto his
computer but that the recording no longer existed. An “IT guy” from the sheriff’s
department tried to obtain the recording from Detective Jones’s computer but was unable
to do so. At the conclusion of the hearing, the trial court ruled that the State did not violate
Tennessee Rule of Criminal Procedure 26.2. Specifically, the trial court found that the
recording no longer existed; therefore, the State was not “disobeying” an order to deliver
the victim’s statement to the defense.

In a subsequent hearing, the trial court addressed the Ferguson issue. During the
hearing, the State advised the trial court that two written summaries of the lost interview
existed. The State then had J.B. and Dustin Atkins, the Chief Operating Officer for
People’s Bank of East Tennessee, testify. After their testimony, the trial court found that
the lost recording was exculpatory because the Appellant could have used the recording to
impeach the victim at trial. The trial court found, though, that the recording was lost due
to simple negligence. The trial court also found that the lost evidence was not particularly
significant given the written summaries of the interview and the fact that the victim,
Detective Jones, and Mr. Ryan could testify about the interview at trial. Finally, the trial
court addressed the sufficiency of the other evidence the State would present at trial to

4
Defense counsel also requested the victim’s statement at the conclusion of his trial testimony.
- 17 -
support a conviction. The trial court noted that J.B. was going to testify about the messages
sent by the Appellant and that the State was going to present evidence that the Appellant
withdrew money from Peoples Bank at 3:00 a.m. The trial court found that in light of the
Ferguson factors, a trial without the recording would not lack fundamental fairness and
refused to dismiss the indictment. However, the trial court stated that it was going to “craft”
a jury instruction because “I do think that a jury instruction would be sufficient to cure any
ill that exists as a result of the negligence in the destruction or misplacement of that
interview.” During the final jury charge, the trial court instructed the jurors that they could
infer the missing evidence would have been favorable to the Appellant. On appeal, the
Appellant maintains that the trial court should have prohibited the victim from testifying
at trial pursuant to Tennessee Rule of Criminal Procedure 26.2 and that the trial court
should have dismissed the charge against him pursuant to Ferguson.

Regarding the victim’s testimony, Tennessee Rules of Criminal Procedure 26.2(a),
commonly referred to as the Jencks Rule, provides that after a witness has testified on direct
examination, the opposing party can make a motion to receive any statement made by the
witness that is in the possession of the party who called the witness and relates to the
witness’s testimony. “If the party who called the witness disobeys an order to deliver a
statement, the court shall strike the witness’s testimony from the record and order the trial
to proceed.” Tenn. R. Crim. P. 26.2(d). In this case, the trial court found that the statement
had been lost and, therefore, did not order the State to turn it over to the defense. Thus, we
agree with the trial court that the State did not violate the plain language of Rule 26.2
because the State did not “disobey” an order to deliver the statement. See State v. Ronald
Wayne Gilbert, No. E2017-00396-CCA-R3-CD, 2018 WL 2411835, at *5 (Tenn. Crim.
App. at Knoxville, May 29, 2018) (stating that “the sanctions prescribed by the rule are
only applicable when the State disobeys a court order to deliver the statement”).
Accordingly, we conclude that the trial court did not abuse its discretion by refusing to
strike the victim’s trial testimony. See State v. Danny Howard, No. W2012-02109-CCA-
R3-CD, 2013 WL 6254679, at *13 (Tenn. Crim. App. at Jackson, Dec. 2, 2013) (applying
abuse of discretion standard for review of Rule 26.2 violation).

Regarding the trial court’s failure to dismiss the charge against the Appellant, the
Due Process Clause of the Fourteenth Amendment to the United States Constitution and
article I, section 8 of the Tennessee Constitution afford every criminal defendant the right
to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001). As such, the State has
a constitutional duty to furnish a defendant with exculpatory evidence pertaining to the
defendant’s guilt or innocence or to the potential punishment faced by a defendant. See
Brady v. Maryland, 373 U.S. 83, 87 (1963).

In Ferguson, our supreme court addressed the issue of when a defendant is entitled
to relief in the event the State has lost or destroyed evidence that was alleged to have been
- 18 -
exculpatory. 2 S.W.3d at 915-18. The court explained that a reviewing court must first
determine whether the State had a duty to preserve the lost or destroyed evidence. Id. at
917. Ordinarily, “the State has a duty to preserve all evidence subject to discovery and
inspection under Tenn. R. Crim. P. 16, or other applicable law.” Id. However,

[w]hatever duty the Constitution imposes on the States to preserve evidence,
that duty must be limited to evidence that might be expected to play a
significant role in the suspect’s defense. To meet this standard of
constitutional materiality, evidence must both possess an exculpatory value
that was apparent before the evidence was destroyed, and be of such a nature
that the defendant would be unable to obtain comparable evidence by other
reasonably available means.

Id. (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)).

If the proof demonstrates the existence of a duty to preserve the evidence and further
shows that the State has failed in that duty, a court must proceed with a balancing analysis
involving consideration of the following factors:

1. The degree of negligence involved;

2. The significance of the destroyed evidence, considered in light of the
probative value and reliability of secondary or substitute evidence that
remains available; and

3. The sufficiency of the other evidence used at trial to support the
conviction.

Id. (footnote omitted). If the court’s consideration of these factors reveals that a trial
without the missing evidence would lack fundamental fairness, the court may consider
several options such as dismissing the charges or providing an appropriate jury instruction.
Id. This court reviews the trial court’s decision concerning the fundamental fairness of a
trial conducted without the missing evidence under a de novo standard of review. State v.
Merriman, 410 S.W.3d 779, 791 (Tenn. 2013). We review the appropriateness of the
remedy provided by the trial court under an abuse of discretion. Id.

The victim initially testified at the pretrial hearing that he showed the messages on
his telephone to Detective Jones. The victim later testified that he was “pretty sure” he
showed the messages to the detective. Detective Jones testified that he obtained the
photographs of the messages from DCS, that he showed the photographs to the victim, and
that the victim’s audio-recorded interview would have confirmed that he showed the
- 19 -
messages to the victim, not vice versa. We note that Detective Jones testified at trial that
the victim’s interview differed from the victim’s trial testimony; however, Detective Jones
but did not explain how the victim’s interview differed from the victim’s testimony. In
any event, to the extent that the Appellant could have used the victim’s audio-recorded
interview to impeach the victim, the State had a duty to preserve the evidence.

Regarding negligence, the record shows that Detective Jones downloaded the
recording onto his computer but that the recording was lost when Detective Jones left his
job at the MCSD to take employment at another agency. The record does not indicate
anything more than simple negligence. As to the significance of the lost evidence, the
record does not demonstrate that the lost recording was particularly damaging to the State
or particularly helpful to the defense because the victim testified on cross-examination that
he was just “pretty sure” he showed the photographs to Detective Jones. Moreover, our
determination of the significance of the lost evidence is curtailed because Detective Jones
did not testify at the hearing or at trial about what else the victim told him on May 30. In
any event, the State advised the trial court that summaries of the lost recording were
available to the Appellant. Finally, despite our ruling that the State failed to prove lack of
consent, the State’s evidence was very damaging to the Appellant. The victim and J.B.
testified about the messages exchanged between the Appellant and the victim, the State
introduced the messages into evidence, and the State presented surveillance video from the
Appellant’s bank that supported the victim’s and J.B.’s testimony. Therefore, in balancing
the Ferguson factors, we conclude that the loss of the recording did not deprive the
Appellant of a fair trial. We also conclude that the trial court did not abuse its discretion
by choosing to instruct the jurors that they could infer the missing evidence was favorable
to the Appellant as an appropriate remedy for the loss of the recording. Thus, the Appellant
is not entitled to relief on this issue.

D. Admissibility of Photographs

The Appellant claims that the trial court erred by allowing the State to introduce the
photographs of the Facebook messages into evidence because the messages were not
properly authenticated pursuant to Tennessee Rule of Evidence 901(a). The State argues
that the trial court did not err. We agree with the State.

Prior to trial, the State filed a motion in limine, requesting a ruling on the
admissibility of the photographs of the Facebook messages. In a pretrial hearing, the victim
testified about receiving the Facebook messages from the Appellant, and his hearing
testimony was essentially the same as his trial testimony. The State showed the victim
twelve images in Exhibit 1. The images were labeled A through L, and the victim identified
them as “the messages between me and Jeremiah” that appeared on the victim’s cellular
telephone. The victim said that he and J.B. took “screenshots” of the messages with another
- 20 -
telephone and that the victim sent the screenshots to J.B.’s mother. On cross-examination,
the victim clarified that the images were photographs, not screenshots, of the messages on
his telephone and that he took the photographs with another telephone. The victim said
that he later ran over his telephone with a skateboard, breaking the telephone, and that he
no longer had access to that particular Facebook account because he could not remember
his password. The victim said that the Appellant’s profile picture appeared next to each
one of the Appellant’s messages. The victim acknowledged that the Appellant’s name and
profile picture were the only way to identify the messages as coming from the Appellant,
that the Appellant’s telephone number did not appear with the messages, and that no date
appeared on the messages.

Detective Jones also testified at the pretrial hearing. He said he obtained the
photographs in Exhibit 1 from DCS and that it was his understanding J.B. used J.B.’s
telephone to photograph the messages on the victim’s telephone.

At the conclusion of the hearing, the trial court found the “[Linzy] case very
persuasive and a good kind of recitation of the law.” The trial court noted that “[t]here was
some confusion” as to whether the images in Exhibit 1 were screenshots captured by the
victim’s telephone or photographs taken by J.B.’s telephone. The trial court determined
that the images were photographs but accredited the victim’s testimony that he and the
Appellant exchanged the Facebook messages in the photographs. The trial court then
stated as follows:

I also want to note some things about the appearance and contents [of the
messages]. If you look at Exhibit 1 A, this Court has the ability to take
judicial notice of things which are inherent, like a calendar. And the
indictment in this case charges the Defendant with solicitation on or between
the 23rd and 24th day of May 2017. Taking judicial notice of 2017, it is
noteworthy to the Court that May 23rd is a Tuesday. When you look at
Exhibit 1 A, missed call from Jeremiah on Tuesday at 9:39 p.m. So the
indictment date in which he says this existed and when it began and what it
purported to be is also corroborated by the fact that the calendar, based upon
the indictment on that same day, is a Tuesday. And this screenshot shows
that it is a Tuesday. I also want to note that . . . the name Jeremiah McDaniel
is on it. Hey, this is Jeremiah, [A.M’s] dad. Can you call me? And also the
bubbles were a profile picture of Mr. McDaniel.

Finally, the trial court noted that the Appellant’s messages contained information that
would have been known by the Appellant. For example, the messages stated that J.B. was
in State custody but had run away and that J.B. was talking to a girl who lived in a trailer
park. Therefore, the trial court ruled that Exhibit 1 was admissible at trial.
- 21 -
Tennessee Rule of Evidence 901 provides that “[t]he requirement of authentication
or identification as a condition precedent to admissibility is satisfied by evidence sufficient
to the court to support a finding by the trier of fact that the matter in question is what its
proponent claims.” Whether evidence has been sufficiently authenticated is within the trial
court’s sound discretion, and its decision will not be overturned absent an abuse of
discretion. See State v. Mickens, 123 S.W.3d 355, 376 (Tenn. Crim. App. 2003).

“A trial court has broad discretion regarding the admissibility of photographs. State
v. Davidson, 509 S.W.3d 156, 198 (Tenn. 2016) (citing State v. Banks, 564 S.W.2d 947,
949 (Tenn. 1978)). “Before a photograph is admissible, it must be verified and
authenticated by a knowledgeable witness.” Id. (citing Banks, 564 S.W.2d at 949).
Generally, “[a] photograph can b[e] authenticated by proof that it depicts what it is claimed
to depict, Rule 901(a).” Neil P. Cohen at al., Tennessee Law of Evidence, § 4.01[21][e]
(6th ed. 2011). However,

[i]t is not necessary . . . that the witness through whom a photo is being
introduced was also the photographer who took the photo in question. Any
person, whether or not the photographer, familiar with the place or item that
was photographed can authenticate the picture by testifying that it is a true
and accurate depiction of the location or item at issue in the case.

Id.

In State v. Jabriel Linzy, the State sought to introduce messages found on Facebook
and Twitter. No. E2016-01052-CCA-R3-CD, 2017 WL 3575871, at *1 (Tenn. Crim. App.
at Knoxville, Aug. 18, 2017). The messages reflected that the defendant and the victim
were members of rival gangs and that the defendant had issued threats against the victim.
Id. at *13. The defendant argued that the comments could not be attributed to him; in other
words, the comments could not be authenticated. Id. at *11. This court stated that
“evidence from social media and emails was authenticated when the prosecution offered
corroborating circumstantial evidence.” Id. at *12. The corroborating circumstantial
evidence consisted of a witness who knew the defendant’s Twitter account, a witness who
knew the victim’s Twitter account, and witnesses who had seen certain photographs on the
defendant’s and the victim’s Facebook pages. Id. at *13. However, we cautioned that
“‘[t]o the extent that the [d]efendant argues that the State was required to affirmatively
prove that the [d]efendant was the author of the message, we agree with reasoning from
other jurisdictions that such challenge goes to the weight of the evidence, not its
admissibility.’” Id. at *12 (quoting State v. Vermaine M. Burns, No. M2014-00357-CCA-
R3-CD, 2015 WL 2105543, at *12 (Tenn. Crim. App. at Nashville, May 5, 2015)).

- 22 -
The present case is similar to Jabriel Linzy in that the State is attributing the
Facebook messages to the Appellant. The trial court found that there was ample
circumstantial evidence to authenticate the messages. We agree with the trial court. The
author of the messages identified himself as “Jeremiah” and “[A.M.’s] dad.” Additionally,
the Appellant was J.B.’s caseworker, and the author stated that J.B. was in state custody
but had run away, both of which were true. The author of the messages offered to pay the
victim, so the victim telephoned the Appellant to plan their meeting. The victim said he
recognized the Appellant’s voice, and video surveillance from the Appellant’s bank
showed a man matching the description of the Appellant and driving the same car as the
Appellant withdrawing money in the hours after the messages were sent. As in Jabriel
Linzy, the Appellant had an opportunity to cross-examine the witnesses, and defense
counsel argued that someone other than the Appellant could have sent the messages. In
fact, during defense counsel’s closing argument, he explained to the jury, step by step, how
someone could take a person’s profile picture and use it to impersonate that person on
Facebook. Like Jabriel Linzy, this is a matter of weight of the evidence, and we conclude
that there was circumstantial evidence to authenticate the Facebook messages.

E. Fifth Amendment

The Appellant contends that the trial court erred by limiting his cross-examination
of the victim about the victim’s recent arrest, by advising the victim of his Fifth
Amendment rights, and by allowing the victim to invoke his Fifth Amendment rights. The
State argues that the trial court did not err because the Appellant was attempting to ask the
victim about an ongoing criminal investigation that was being handled by federal
authorities. We conclude that the trial court did not err.

During the victim’s cross-examination, defense counsel questioned him about his
pending theft case, and the victim acknowledged that the State had offered him diversion.
Defense counsel then asked the victim, “Now on March the 7th of 2019, you were arrested
again, weren’t you?” The victim said yes, and defense counsel asked, “And at that time,
you had in your possession . . . 45 caliber rounds -[?]” At that point, the trial court
interrupted defense counsel and advised the victim of his constitutional right not to
incriminate himself. The trial court asked if the victim had a lawyer in that case, and the
victim said yes. The trial court advised the victim that he had a right to consult with his
lawyer, that he was testifying under oath, and that anything he said could be used against
him in a court of law. The trial court asked if the victim understood his rights, and the
victim said yes. Defense counsel resumed his cross-examination and asked the victim, “At
the time you were arrested, you had in your possession a black magazine with .45 caliber
rounds on your person, is that correct?” The victim responded, “I’m gonna invoke my
Fifth Amendment.” Defense counsel then asked, “And the passenger seat of the vehicle

- 23 -
that you exited from where you were sitting had a black Sig M-1911 .45 loaded with a
silver magazine under that seat?” The victim responded, “I’m not gonna tell about it.”

The trial court ruled that the victim had affirmatively invoked his right against
compulsory self-incrimination and stated that it was going to “quash further questions
regarding facts of any pending case.” Defense counsel requested a bench conference.
During the conference, defense counsel advised the trial court that the victim may have
committed a federal crime by possessing the firearm and ammunition and requested to ask
the victim if he had talked with the district attorney’s office about “any federal prosecution
for that offense.” The State responded, “Why? That, that makes the jury know that this is
some kind of federal offense, Your Honor, when in fact that case was dismissed . . . because
it wasn’t found to allege an offense on its face . . . . Our office never even touched it, let
alone had a conversation about it.” The trial court noted, “If it was dismissed, you can
bring that out.” However, the trial court then ruled that defense counsel could not ask the
victim if he had talked with the district attorney’s office about the federal case. Despite
that ruling, the State asked the victim on redirect-examination if he knew what happened
to the March case, and the victim responded, “I’m pretty sure it got dismissed.” The State
asked if the victim had ever talked with the district attorney general’s office about the
March case and if anyone had ever made any promises to him in that case. The victim
answered both questions in the negative.

A defendant’s constitutional right to confront witnesses against him includes the
right to conduct meaningful cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51
(1987); State v. Brown, 29 S.W.3d 427, 430-31 (Tenn. 2000). “Generally speaking, a
denial of the right to an effective cross-examination is ‘constitutional error of the first
magnitude and amounts to a violation of the basic right to a fair trial.’” State v. Dishman,
915 S.W.2d 458, 463 (Tenn.Crim.App.1995) (quoting State v. Hill, 598 S.W.2d 815, 819
(Tenn. Crim. App. 1980)). Additionally, the right to cross-examine a witness for bias is a
fundamental right. State v. Rice, 184 S.W .3d 646, 670 (Tenn. 2006). However, “a
defendant’s right to confrontation does not preclude a trial court from imposing limits upon
cross-examination which take into account such factors as harassment, prejudice, issue
confusion, witness safety, or merely repetitive or marginally relevant interrogation.” State
v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim. App. 1994). Moreover, “where there is a
conflict between the basic right of a defendant to compulsory process and the witness’s
right against self-incrimination, . . . the right against self-incrimination is the stronger and
paramount right.” The propriety, scope, manner, and control of the cross-examination of
witnesses rests within the discretion of the trial court, and this court will not disturb the
limits placed upon cross-examination by a trial court unless the court has unreasonably
restricted the right. Dishman, 915 S.W.2d at 463.

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Here, the Appellant attempted to ask the victim about the facts of a federal case for
which the victim had been arrested less than three months earlier. Therefore, we conclude
that the trial court did not err by advising the victim of his Fifth Amendment Right against
compulsory self-incrimination and by allowing the victim to invoke that right. On redirect-
examination, the State asked the victim the very same questions that defense counsel had
requested to ask him, i.e., whether he had talked to the district attorney’s office about that
case and whether he had been promised anything in relation to that case. The victim
answered both questions in the negative. The Appellant has not explained what more he
should have been allowed to ask the victim about the March case. Therefore, he is not
entitled to relief on this issue.

F. Sentencing

Finally, the Appellant claims that his six-month sentence in confinement is
excessive.5 The State argues that the trial court properly sentenced the Appellant. We
agree with the State.

The jury convicted the Appellant on May 23, 2019. That afternoon, the trial court
held a misdemeanor sentencing hearing. At the hearing, Dewayne Benjamin Thomas
testified for the Appellant that he was a judge in Monroe County Juvenile and General
Sessions Court and that he had observed the Appellant in the courtroom as a DCS
employee. Judge Thomas said that the Appellant was “very efficient” and “[d]id his job as
directed” and that he never heard any complaints about the Appellant. On cross-
examination, Judge Thomas testified that since the Appellant’s conviction, he could no
longer trust the Appellant with a child. Upon being questioned by the trial court, Judge
Thomas said the Appellant’s duties for DCS mainly related to delinquent matters.

Ann Barker testified that she had been an attorney for almost forty years and that
she had worked with the Appellant in juvenile cases. She described the Appellant as “a
really conscientious worker” and said he “really cared about the kids.” Ms. Barker never
heard any complaints about the Appellant. On cross-examination, Ms. Barker testified that
she did not attend the Appellant’s trial. However, she did not think the Appellant would
have done “that.”

Jennifer McDaniel, the Appellant’s wife, testified that they had been married for
twelve years and had one biological child. They became foster parents in 2009 and adopted
the last child they fostered, A.M. A.M. was sixteen years old at the time of his adoption
and was twenty years old at the time of the Appellant’s trial. Mrs. McDaniel said that she

5
At sentencing, the trial court denied judicial diversion. The Appellant does not contest that ruling.
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was not aware of any complaints about the Appellant and that “we’re still in contact with
many of the kids that came through our home.”

On cross-examination, Mrs. McDaniel testified that the Appellant worked for DCS
for more than one year. Prior to DCS, the Appellant worked in foster care with Omni
Visions for about one year. Mrs. McDaniel said that the Appellant sometimes got called
away from home in the middle of the night for his work and that she was not with him in
the early morning hours of May 24, 2017. She said the Appellant had not been employed
since his arrest.

The parties stipulated that the Appellant did not have any prior arrests or
convictions. The trial court found that enhancement factor (14), that the defendant abused
a position of public trust, applied to the Appellant’s sentence. See Tenn. Code Ann. § 40-
35-114. The trial court gave the factor “very significant” weight. In mitigation, the trial
court applied factor (1), that “[t]he defendant’s criminal conduct neither caused nor
threatened serious bodily injury.” Tenn. Code Ann. § 40-35-113(1). The trial court also
applied mitigating factor (13), the “catchall” provision, for the Appellant’s lack of a
criminal history, being married, being “a good worker up until this,” and working in the
best interest of children in foster care. See Tenn. Code Ann. § 40-35-113(13). The trial
court sentenced the Appellant to one hundred eighty days.

As to the manner of service of the sentence, the trial court questioned whether the
Appellant could be rehabilitated. The trial court found that confinement was necessary to
avoid depreciating the seriousness of the offense and that deterrence was needed because
“[w]e’ve got to prevent people in positions of public trust from abusing that trust” and
because “we’ve got to deter shocking, reprehensible and offensive conduct.” The trial
court denied the Appellant’s request for probation but set the percentage of his sentence to
serve in confinement prior to becoming eligible for release into rehabilitative programs at
“zero.”

This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see State v. King, 432
S.W.3d 316, 324 (Tenn. 2014) (applying the Bise standard to “all sentencing decisions”);
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the Bise standard to
alternative sentencing). In determining a defendant’s sentence, the trial court considers the
following factors: (1) the evidence, if any, received at the trial and the sentencing hearing;
(2) the presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5)
evidence and information offered by the parties on enhancement and mitigating factors; (6)
any statistical information provided by the Administrative Office of the Courts as to
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sentencing practices for similar offenses in Tennessee; (7) any statement by the defendant
in his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code
Ann. §§ 40-35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98. The burden is on the
Appellant to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-
401, Sent’g Comm’n Cmts.

Regarding alternative sentencing for a felony, a defendant is eligible for alternative
sentencing if the sentence actually imposed is ten years or less. See Tenn. Code Ann. §
40-35-303(a). Moreover, a defendant who is an especially mitigated or standard offender
convicted of a Class C, D, or E felony should be considered a favorable candidate for
alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-
102(6). The following sentencing considerations, set forth in Tennessee Code Annotated
section 40-35-103(1), may constitute “evidence to the contrary”:

(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of
the offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.

State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, a court
should consider a defendant’s potential or lack of potential for rehabilitation when
determining if an alternative sentence would be appropriate. See Tenn. Code Ann. § 40-
35-103(5). A defendant with a long history of criminal conduct and “evincing failure of
past efforts at rehabilitation” is presumed unsuitable for alternative sentencing. Tenn. Code
Ann. § 40-35-102(5).

In misdemeanor sentencing, the “trial court need only consider the principles of
sentencing and enhancement and mitigating factors in order to comply with the legislative
mandates of the misdemeanor sentencing statute.” State v. Troutman, 979 S.W.2d 271,
274 (Tenn. 1998). Thus, the trial court is afforded considerable latitude in misdemeanor
sentencing. See State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999). The trial
court retains the authority to place a defendant on probation immediately or after a time of
confinement. See Tenn. Code Ann. § 40-35-302(a).

The record reflects that the trial court complied with the requirements of
misdemeanor sentencing. Therefore, we afford the trial court wide latitude in its ruling. In
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determining the length and manner of service of the sentence, the trial court found
enhancement factor (14) applicable and gave the factor significant weight. The trial court’s
comments also demonstrate that it did not think the Appellant was particularly suitable for
rehabilitation. The trial court found that the facts of this case were “shocking” and
“reprehensible” in that the Appellant was in a position of public trust, deceived his wife
and family, targeted a minor who was vulnerable due to his circumstances, and offered the
minor money and drugs for a “handjob.” We conclude that the trial court did not abuse its
discretion by ordering that the Appellant serve one hundred eighty days in jail.

III. Conclusion

Based upon the record and the parties’ briefs, we conclude that the evidence is
insufficient to support the Appellant’s conviction of solicitation of a minor to commit
sexual battery. Therefore, the Appellant’s conviction is reversed and vacated, and the
original charge against him is dismissed.

_________________________________
NORMA MCGEE OGLE, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6317427. Public record. Not legal advice.