State of Tennessee v. Tolbert Cates Kail

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
July 10, 2012 Session

STATE OF TENNESSEE v. TOLBERT CATES KAIL

Appeal from the Circuit Court for Crockett County
No. 3970 Clayburn Peeples, Judge

No. W2011-01474-CCA-R3-CD - Filed May 17, 2013

The Defendant-Appellant, Tolbert Cates Kail, was convicted by a Crockett County jury of
two counts of especially aggravated sexual exploitation of a minor, a Class B felony, sexual
exploitation of a minor with fifty images or less, a Class D felony, contributing to the
delinquency of a minor, a Class A misdemeanor, and assault, a Class B misdemeanor. The
trial court sentenced Kail as a Range I, standard offender to an effective sentence of twelve
years at 100%. On appeal, Kail argues (1) the evidence was insufficient to support his
convictions; and (2) the trial court erred in denying his motion to sever. Upon review, we
affirm the judgments of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.

Brandon L. Newman and James B. Webb, Trenton, Tennessee (on appeal); David Camp,
Jackson, Tennessee (at trial), for the Defendant-Appellant, Tolbert Cates Kail.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Garry G. Brown, District Attorney General; and Edward L. Hardister, Assistant
District Attorney General, for the Appellee, State of Tennessee.

OPINION

A Crockett County Grand Jury returned a seven-count indictment charging Tolbert
Cates Kail with sexual exploitation of a minor (less than one hundred images) (count one);
especially aggravated sexual exploitation of a minor (counts two and three); sexual battery
by an authority figure (count four); incest (count five); rape (count six); contributing to the
delinquency of a minor by providing alcoholic beverages to said minor on several occasions
(count seven). Kail’s adopted daughter, a minor, was named as the victim in counts two
through seven of the indictment. In count one, the State did not name a specific victim, but
it included the birth date of Kail’s minor adopted daughter.

The victim, age seventeen at the time of trial, testified that she was born in July 1992.
She was adopted by Kail and his wife at the age of thirteen. The victim described two
incidents of sexual misconduct with Kail. She said that the first instance occurred in August
2006, when Mrs. Kail was not at home. Kail came into the bathroom while she was taking
a bath and “started touching on [her] private area and rubbing [her] boobs.” The victim said
that Kail told her to get out of the bathtub because he wanted to perform oral sex on her, and
she complied. She said Kail told her not to say anything to anybody about the encounter.

The victim said the next incident occurred a few months later. She testified that Kail
asked her to watch a pornographic movie with him. After watching some of the movie, the
victim went to her bedroom. Kail then came to her bedroom and told her that he wanted to
have sex with her. The victim said Kail tried to penetrate her vagina but she kept saying,
“No, please, stop, stop, stop.” Kail eventually stopped and again told the victim not to tell
anyone about the encounter. The victim could not recall whether the above incident occurred
in 2006. Asked if she fought Kail, the victim replied that she was scared.

The victim testified that Kail “took pictures of [her] once and sent a picture . . . on
[her] phone that [she had taken] of [her] butt and he took it off [her] phone and sent it to his.”
She identified the photograph at trial, which was admitted as exhibit 1. Exhibit 1 shows a
side view of the victim’s torso, stomach, and buttocks. The victim is wearing only panties
in the photograph. The victim testified that Kail took additional photographs of her, which
were admitted into evidence as collective exhibit 2A-2F.

Exhibit 2A is a photograph showing the victim from her head to below her breast.
The victim is nude with her breasts fully exposed. In exhibit 2B, a photograph showing the
victim from her shoulders to her stomach, the victim is holding pool balls over the nipples
of her breasts. In exhibit 2C, a photograph showing the victim wearing a sports bra tank top
and shorts covering her mid-thigh area, the victim is posing on a pool table. In exhibit 2D,
a photograph showing the victim wearing the same clothes as in exhibit 2C, the victim is
positioned on her hands and knees facing the camera on top of the pool table. Exhibit 2E,
a photograph showing the victim’s face and shoulder, the victim is wearing a tank top and
holding a pool stick. Exhibit 2F appears to be a wider view of the same photograph as
exhibit 2D; however, the victim’s face is distorted and more of her arms and legs are shown
in the photograph.

-2-
 The victim said that Kail took the photographs in exhibit 2 on a digital camera using
an “SD card” and later uploaded the photographs onto the desktop computer in the dining
room. She said that there were three computers in the home, two desktops and one laptop.
Mrs. Kail used the laptop, and the desktop computer located in the kitchen was used by
everyone. The other desktop computer was originally in the victim’s room, but when it
stopped working it was placed in the gray house behind the Kail home. The victim described
the gray house as “a little hang-out area.” The victim did not recall whether the photographs
of her were taken in 2006.

At age fourteen and sometime in the summer of 2006, the victim began to drink
alcohol in the Kail home “about every weekend.” She said Kail bought her Bud Lite,
Smirnoff, Hot Damn, and Ice One on One to drink. The victim named five other girls her
age, including her best friend, who would also drink alcohol at the Kail’s gray house. The
victim said Mrs. Kail would be in Memphis visiting her parents, with her daughter, or in bed
and “wouldn’t know any of this was going on.” The last time alcohol was provided to the
victim by Kail was a few months before she left their home in 2007.

The victim testified that she assisted Kail make a video, admitted as exhibit 3, which
depicted her best friend, age fifteen, exposing her breasts and buttocks while intoxicated.1
She said that Kail started the video and she stopped it. She agreed that the video was taken
at the Kail home and that she briefly “reach[ed] over and pull[ed] down [her friend’s]
shorts.” She confirmed that Kail’s voice was heard on the video. The victim uploaded the
video onto her computer, which was the same computer that was later recovered from the
Kail’s gray house. Finally, the victim was shown exhibits four and five, both notebooks
compiled after a forensic examination of the computers. Both exhibits contained sexually
explicit photographs of young girls and various computer printouts listing incest related
internet websites previously visited on the computers recovered from the Kail home. She
denied downloading the photographs or visiting the internet websites listed in the exhibits.
On November 10, 2007, the day the victim reported the offense, she moved out of the Kail
home and into the home of her best friend, the minor who was filmed in the video.

On cross-examination, the victim agreed that she was required to attend Saturday
School on November 10, 2007, the day she reported the offense. She attended Saturday
School because she had skipped school earlier in the week with her boyfriend, Blake
Bolding. According to the victim, the night before Saturday School “a pretty big blow-up”

1
The actual video, a compact disc, admitted into evidence as exhibit 3 was not readable by this
court’s computers. However, there appears to be an unmarked video attached to another exhibit which is a
duplicate of exhibit 3 that was readable. We nevertheless caution the parties to ensure that this court is able
to view electronic evidence offered in future appeals.

-3-
occurred at Walmart because her boyfriend “just showed up” there while the victim and the
Kails were shopping. She admitted that her boyfriend would come to the Kail home when
the Kails were not present, that the desktop computers were not password protected, and that
she never used her mother’s laptop computer. Finally, she said that her boyfriend and several
other friends had access to and had previously used her computer.

The victim said that Kail purchased a separate memory card to take nude pictures of
her and “guessed” he would hide the card in his room. She agreed that her boyfriend and
others had access to the camera. The victim clarified her previous testimony and agreed that
she had in fact started the portion of the video when her friend exposed herself. She
confirmed that during the filming Kail told her to turn the camera off and that she refused.

Sergeant-Detective Penny Curtis of the Crockett County Sheriff’s Department spoke
with Kail on November 10, 2007, the day she was notified of the offense. Kail told her that
he had taken a photograph of the victim which was located on his cell phone. She said Kail
explained that the victim had transferred the photograph to him from her phone. Sergeant-
Detective Curtis confirmed that exhibit 1 was the same photograph she viewed and recovered
from Kail’s cell phone. Sergeant-Detective Curtis compiled a notebook, admitted as exhibit
7, that contained an additional twenty-four photographs of the victim and other young
women, fully clothed or in a swim suit, recovered from Kail’s cell phone. Sergeant-
Detective Curtis testified that Kail denied taking nude photographs of the victim. However,
Kail admitted taking a photograph of the victim in a tank top and a pair of “git-r-done” boxer
shorts, which Sgt. Curtis believed was consistent with the photographs in collective exhibit
2.

Sergeant-Detective Curtis recovered the following items, admitted as exhibits at trial,
from the Kail house on November 10, 2007: a laptop, a Gateway computer from the kitchen,
a VHS video, a digital camera, and three handwritten sheets of paper, all of which were
forwarded to the Tennessee Bureau of Investigation (TBI) for analysis. Sometime later,
Kail’s attorney brought Sgt. Curtis the computer tower that was in the victim’s room and
removed to the gray house, an “e-machine,” and a manila envelope containing the computer’s
hard drive. These items were also forwarded to the TBI crime lab. Sergeant-Detective Curtis
said exhibit 3, the homemade video showing the victim’s minor friend, was retrieved from
the hard drive of the computer from the gray house.

On cross-examination, Sgt. Curtis said she searched for the digital camera’s memory
card but never found it. She said she did not search the gray house on November 10, 2007.
She also testified that the TBI lab reports did not reveal any tampering with the hard drive
from the computer from the gray house.

-4-
 Special Agent Melanie Garner of the Tennessee Bureau of Investigation, an expert in
the area of computer forensics, examined the computers recovered from the Kail home and
admitted as exhibit 8 (“the laptop”), exhibit 9 (“the Gateway”), and exhibit 13 (“the e-
machine”). She made a “bit-by-bit copy” of each computer’s hard drive. As a result of her
examination, she prepared exhibit 4, a notebook containing twelve sexually explicit
photographs of young girls printed from the hard drive of the Kails’ laptop computer. Agent
Garner was also able to determine that the following internet websites had been previously
accessed on the same laptop computer: “RealIncestVideos.com,” “TightTeenies.com,”
“ForcedFuckers.com,” “Younger19.com,” and “NNTeens,org.” She testified that the
photographs in collective exhibit 2 were also retrieved from the laptop.

Based on her examination of the Gateway computer, Agent Garner compiled another
notebook, exhibit 5, which contained approximately fifty-two photographs of nude young
girls in suggestive positions or engaged in sexually explicit acts. She was also able to
retrieve a listing of previously accessed “URL’s” for the Gateway computer which included
“Teen Sex Movies.com,” “Free Rape Photos.com,” “DaddysWhores.com,” and
“LittleIncest.com.” She noted that November 2, 2007, was the last time one of these internet
websites was accessed. In regard to the e-machine, which was recovered with the computer
tower from the gray house, Agent Garner prepared only a partial report. She explained that
the e-machine was previously examined by a defense witness, and she was uncertain of the
chain of custody. Nevertheless, Agent Garner forwarded her report to Sgt. Curtis. She
confirmed that the Kail’s computers were not password protected and that the age of the
females depicted in the images was unknown. Finally, Agent Garner testified that she was
unable to determine who downloaded the photographs or when they were downloaded.

The victim’s best friend, age seventeen at the time of trial, testified that exhibit 3 was
a video of her drinking alcohol at the Kails’ house. She thought the video was made in the
spring of 2007, around nine o’clock in the evening. The victim, her best friend, two other
adults, and Kail were present when the video was filmed. Kail purchased the alcohol for
them, and she had been drinking prior to the video. She said the victim and Kail each held
the camera, and Mrs. Kail was not present. She further testified that she and the victim
would drink alcohol “every weekend” or summer day when Mrs. Kail was away. She did not
download the pictures in exhibit 5 and had no knowledge of any of her friends downloading
them. She said Kail behaved “normally most of the time” around the victim but that
sometimes “[h]e would touch her butt or something like that.”

Anthony Blake Bolding, age nineteen at trial, testified that he took the victim home
from school about twenty times. He said he went inside the Kail house once, never used the
computers in the house, and never downloaded any photographs from the internet at their
house. He also denied taking photographs of the victim with her breasts exposed and did not

-5-
take any of the photographs in exhibit two. On cross-examination, Mr. Bolding said he dated
the victim for three months, including November 9 and 10 of 2007. He denied seeing the
victim at Walmart Friday evening, November 9, 2007. He recalled one time in late
September when he entered the Kail house. He said Kail was in a recliner in the living room
and Mrs. Kail was asleep. He denied being at the Kail’s house when they were not present.
Although he never borrowed the Kails’ camera, Mr. Bolding said Kail used it to take a
picture of his car, which he was trying to sell.

Heather Esque Brooks, a good friend of the Kails’ older daughter, testified on behalf
of Kail that she lived at the Kails’ house October 2006 through April 2007. She said prior
to October 2006, she visited the Kails’ house “regularly.” She had opportunities to visit with
the victim, and the victim never told her that Kail behaved inappropriately. On cross-
examination, Mrs. Brooks confirmed that while living at the Kails’ house, the laptop was
Mrs. Kail’s computer and everyone was allowed to use it. Another large computer was
located in the kitchen and accessible to anyone. She believed there was a third computer in
the house located in the victim’s room that was later moved to “the family area.” Mrs.
Brooks denied using the victim’s computer but agreed that it was accessible to anyone. She
tried to access the victim’s computer once but was unable to because she did not know the
password. She also observed Kail use the computers in the home.

Mrs. Brooks was never invited to parties in the gray house and was unaware they
occurred. She denied Kail took pictures of her in a bathing suit or underwear and noted she
was there during cooler months. She confirmed that Kail had a digital camera he used to take
pictures, and she recalled him videotaping the 2007 New Year’s Eve party at his house for
which he provided alcohol. The victim was not at the party. She agreed that as Kail
videotaped it, he “would actually take a camera and come up on [Mrs. Brooks’] rear ends or
come up on [her] front areas” and she “would actually kind of show some skin.” Mrs.
Brooks identified photos of herself taken by Kail at the New Year’s Eve party, which were
admitted into evidence. On redirect examination, Mrs. Brooks testified that no one under the
age of eighteen was at this party.

Andrew Freese, an IT consultant for ATA Technologies, testified as an expert witness
in the field of computer data recovery. He examined the e-machine and prepared a report
which was admitted into evidence. He recovered various items from the e-machine including
a video, pornographic and non pornographic images, instant messages containing sexual
content, and an internet web history of searches for sexual content. On cross-examination,
Mr. Freese said the e-machine was not password protected, was open for anyone to use, and
had several pornographic sites related to incest on it.

-6-
 Billy Jones, a neighbor who lived across the street from Kail, testified that he raised
Kail and spoke to him daily. Mr. Jones said the Kails would tell him when they would be
away from their house. Jones did not recall seeing anyone other than the victim at the house
when the Kails were absent.

The jury convicted Kail of sexual exploitation of a minor (50 images or less); two
counts of especially aggravated sexual exploitation of a minor; assault (as a lesser included
offense of sexual battery by an authority figure); and contributing to the delinquency of a
minor. The jury found Kail not guilty of incest and rape. Kail was sentenced to two years,
two twelve-year terms, six months, and eleven months and twenty-nine days, respectively,
to be served concurrently. Kail filed a motion for new trial, which the trial court denied.
Kail then filed a timely notice of appeal.

ANALYSIS

I. Sufficiency of the Evidence. Kail argues the evidence was insufficient to support
his convictions of sexual exploitation of a minor, especially aggravated sexual exploitation
of a minor, assault, and contributing to the delinquency of a minor. The State responds that
the evidence was sufficient to sustain each of Kail’s convictions. We agree with the State.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing 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). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,
“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if
the evidence is insufficient to support a finding by the trier of fact of guilt beyond a
reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case where there is
direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 208 Tenn. 75, 343 S.W.2d 895, 897 (Tenn. 1961)). The trier
of fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and must reconcile all conflicts in the evidence. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency of the
evidence, this court shall not “reweigh or reevaluate the evidence.” Henley v. State, 960
S.W.2d 572, 578–79 (Tenn. 1997). This court has often stated that “[a] guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A

-7-
guilty verdict also “removes the presumption of innocence and replaces it with a presumption
of guilt, and the defendant has the burden of illustrating why the evidence is insufficient to
support the jury’s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

When the State offers proof of guilt based on circumstantial evidence, the jury decides
how much weight to give 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.” Marable v. State, 313
S.W.2d 451, 457 (Tenn. 1958) (internal quotation and citation omitted)). This court may not
substitute its inferences for those drawn by the trier of fact in cases involving circumstantial
evidence. State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010) (citing Liakas v. State, 199
Tenn. 298, 286 S.W.2d 856, 859 (Tenn. 1956)). We note that the standard of review “‘is the
same whether the conviction is based upon direct or circumstantial evidence.’” State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (quoting State v. Sutton, 166 S.W.3d 686, 689
(Tenn. 2005)).

In regard to the sexual exploitation of a minor (50 or less images) conviction, the State
was required to show that Kail “knowingly possess[ed] material that include[d] a minor
engaged in . . . [s]exual activity or [s]imulated sexual activity that is patently offensive.”
T.C.A. § 39-17-1003(a)(1), (2) (2003). A minor is defined as “any person who has not
reached eighteen (18) years of age.” T.C.A. § 39-17-1002(3). “Material” is defined, in
pertinent part, as a “photograph . . . or other pictorial representation[, or any] image stored
on a computer hard drive, a computer disk of any type, or any other medium designed to store
information for later retrieval.” T.C.A. § 39-17-1002(2)(A), (C). “Sexual activity” is defined,
in part, as “[v]aginal . . . or oral intercourse . . . done with another person [or l]ascivious
exhibition of the female breast or the genitals, buttocks, anus or pubic or rectal area of any
person.” T.C.A. § 39-17-1002(8)(A), (G). To sustain an especially aggravated sexual
exploitation of a minor conviction, the State was required to prove that Kail “knowingly
promot[ed . . . assist[ed] . . . or permit[ted] a minor to participate in the performance of, or
in the production of, acts or material that includes the minor engaging in [s]exual activity.”
T.C.A. § 39-17-1005(a)(1). The statute permits “the trier of fact [to] infer that a participant
is a minor if the material through its title, text, visual representation or otherwise represents
or depicts the participant as a minor.” T.C.A. § 39-17-1005 (2003).

Relying on the victim’s testimony that her then-boyfriend had used the computers in
the Kails’ home, Kail argues that the State “failed to prove beyond a reasonable doubt that
[he] was the person who had downloaded these [child pornographic] images to this
computer.” Kail additionally claims that the verdict was tainted by evidence admitted on
unrelated charges. In response, the State contends that the evidence is sufficient to support
the conviction. We agree with the State.

-8-
 Kail does not dispute the amount of photographs necessary for the offense or the
offensive nature of the photographs recovered from the computers. He argues, as he did at
trial, that because other people had access to the computers, he cannot be guilty of the
offenses. We certainly agree with Kail to the extent that he argues the computers were
widely accessible. Nevertheless, the proof at trial showed that each computer was recovered
from Kail’s house. The victim, friends who frequented the house, and her then-boyfriend
denied accessing the computers for the purpose of downloading pornography. Moreover, a
close review of the record shows that Kail admitted that he took photographs of the victim
wearing a tank top and “‘git-r-done’ shorts.” While that photograph alone was not
pornographic, it was taken at the same time and in the same location as the other photographs
in exhibit 2 which showed the victim’s breasts.

Based on the above evidence, it is reasonable for a jury to infer that Kail downloaded
the remaining twelve sexually explicit photographs found on the same laptop. Additionally,
the victim and other witnesses who lived at the Kail home testified that the Gateway desktop
computer located in the kitchen was used by everyone, including Kail. It contained over fifty
sexually explicit photographs of young girls. The jury, as was its prerogative, simply rejected
Kail’s claim that someone else downloaded the photographs. See, e.g., State v. Kevin Allen
Gentry, No. E2009-02041-CCA-R3-CD, 2011 WL 2936403, at *10-11 (Tenn. Crim. App.
July 21, 2011) perm. app. denied (Tenn. Nov. 16, 2011). Accordingly, Kail is not entitled
to relief on this issue.

In regard to the especially aggravated sexual exploitation of a minor convictions, Kail
claims that the evidence is insufficient on the following grounds: (1) the State failed to prove
that he took the photos originating from the victim’s phone; (2) the State failed to recover the
memory card for his camera; (3) the victim admitted taking some photographs herself; and
(4) the victim said her boyfriend borrowed the camera and could have taken some photos.
Based on our review, none of these grounds merit relief.

As an initial matter, the arguments in Kail’s brief to this court fail to address the
grounds upon which the State relied to establish these offenses. Kail’s primary focus is on
exhibit 1, a photograph of the victim wearing only panties and showing a side view of her
stomach and buttocks. However, prior to trial, the State argued that the first count of
especially aggravated sexual exploitation of a minor was based on Kail’s act of making
photographs of the victim in which she displayed her breasts and her body in a way that was
lascivious. At trial, the victim testified that she took the photograph in exhibit 1, but Kail
later transferred it from her phone to his. The victim additionally testified that Kail had taken
photographs of her “topless” and on top of a pool table. She said Kail told her to hold pool
balls over her breasts and then took a photograph of her. She testified that the photograph

-9-
of her in the “‘git-r-done’ shorts” was taken at the same time. These photographs, admitted
as collective exhibit 2, were obtained from the laptop taken from Kail’s home. Based on this
evidence, we conclude that a reasonable jury could have found Kail guilty of especially
aggravated sexual exploitation of a minor.

Kail makes no argument in his brief to this court challenging the sufficiency of the
evidence supporting the second count of especially aggravated sexual exploitation of a minor
conviction. In any event, the State argued this count was based on Kail’s act of using or
permitting the victim to participate in the filming of a minor, her best friend, in which the
victim’s best friend was intoxicated and exposed her breasts and buttocks. At trial, even
though the victim conceded that she was in control of the camera when her friend exposed
herself, the victim and her friend both testified that Kail was also in control of the video
camera when they started to film. Accordingly, we conclude that the evidence is sufficient
to support the conviction.

In regard to the assault conviction, the State was required to show that Kail
“[i]ntentionally or knowingly cause[d] physical contact with another and a reasonable person
would regard the contact as extremely offensive or provocative.” T.C.A. § 39-13-101(a)(3)
(2003). Here, Kail challenges the evidence supporting the assault conviction by disputing
the testimony of the victim. He claims that her testimony was the only source of information
regarding the touching, that her testimony was “questionable,” and that “two witnesses
testified as to [the victim’s] lack of truthfulness.” In response, the State contends, and we
agree, that the evidence is sufficient to support the assault conviction. At trial, the victim
testified that Kail touched her private areas on two separate occasions and that she was
scared. As this court has repeatedly stated, it is within the province of the jury to determine
witness credibility. Accordingly, we conclude that the evidence is sufficient to support
Kail’s conviction of assault.

In regard to the conviction of contributing to the delinquency of a minor, the State was
required to show that Kail “contribut[ed] to or encourag[ed] the delinquency or unruly
behavior of a child, whether by aiding or abetting or encouraging the child in the commission
of an act of delinquency[.]” T.C.A. § 37-1-156(a) (2001). Kail contends that the victim
admitted filming the video, uploading it to the computer and internet, and hearing Kail tell
her to stop recording. He also argues that the verdict was tainted by evidence admitted on
unrelated charges. The State responds that the evidence was sufficient to support the
conviction.

A “delinquent act” is defined as “an act designated a crime under the law.” T.C.A.
§ 37-1-102(b)(9). In Tennessee, possessing or consuming alcohol while under the age of
twenty-one is a crime. T.C.A. §§ 1-3-105(1), 1-3-113(b), 37-1-102(b)(9), 39-17-1505(a),

-10-
57-5-301(e)(1) (2006). The indictment charged Kail with contributing to the delinquency of
his minor daughter by providing her with alcoholic beverages on several occasions. The
victim and her best friend testified that Kail provided them with alcoholic beverages and
hosted drinking parties, weekly. While the video appears to show the victim’s friend
drinking an alcoholic beverage, it merely corroborates actual trial testimony of the victim and
her friend. This is more than sufficient evidence to support Kail’s conviction. Kail is not
entitled to relief.

II. Severance of Offenses. Here, Kail contends that the trial court abused its
discretion by denying his motion to sever the offenses in this case. He argues that the trial
court failed to make the requisite findings pursuant to Spicer v. State, 12 S.W.3d 438, 443
(Tenn. 2000); specifically, whether the offenses constituted a part of the same common
scheme or plan and whether the evidence of each crime would be admissible in the other.
Based on comments the trial court made during a motion to suppress, the State contends that
the trial court implicitly made the above determinations and properly denied the motion to
sever. Here, we agree with Kail and conclude that the trial court abused its discretion in
denying Kail’s motion to sever.

A trial court’s decision “to consolidate or sever offenses pursuant to Rules 8(b) and
14(b)(1) [is] to be reviewed for an abuse of discretion.” State v. Shirley, 6 S.W.3d 243, 247
(Tenn. 1999). “Therefore, a trial court’s refusal to sever offenses will be reversed only when
the ‘court applied an incorrect legal standard, or reached a decision which is against logic or
reasoning that caused an injustice to the party complaining.’” Id. (citing State v. Shuck, 953
S.W.2d 662, 669 (Tenn. 1997)). “It is the responsibility of the defendant to show that he was
clearly prejudiced by the trial court’s refusal to sever the offenses.” State v. Hall, 976
S.W.2d 121, 146 (Tenn. 1998).

In this case, the State joined multiple offenses in a single indictment pursuant to
Tennessee Rule of Criminal Procedure 8(b), and Kail filed a motion to sever the offenses.
The Tennessee Supreme Court has stated that “[i]f the defendant . . . moves to sever the
offenses for trial, then [Tennessee Rules of Criminal Procedure,] Rule 14(b)(1) places the
burden on the prosecution to show that the offenses are part of a common scheme or plan and
the evidence of each crime would be admissible in the trial of the other.” State v. Denton,
149 S.W.3d 1, 13 (Tenn. 2004). Note that “the trial court must consider the motion by the
severance provisions of Rule 14(b)(1), not the ‘same or similar character’ standard of Rule
8(b).” Spicer, 12 S.W.3d at 443.

“[T]he ‘primary issue’ to be considered in any severance case is whether evidence of
one offense would be admissible in the trial of the other if the two offenses remained
severed.” Id. at 445 (citing State v. Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984)).

-11-
Tennessee Rule of Evidence 404(b) states that “[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action in conformity
with the character trait.” Tenn. R. Evid. 404(b). However, “other crimes, wrongs or acts”
are admissible under Rule 404(b) when they are alleged to be a part of a common scheme or
plan that is relevant to a material issue at trial. See Bunch v. State, 605 S.W.2d 227, 229
(Tenn. 1980). In State v. Parton, 694 S.W.2d 299, 303 (Tenn.1985), the supreme court held
that proof of other crimes may be admissible if, after a jury-out hearing, the trial court
determines: (1) the evidence is relevant to an issue at trial, such as identity, and (2) the
probative value of the evidence outweighs its prejudicial effect.

“In Tennessee, there are three types of common scheme or plan evidence: (1) offenses
that reveal a distinctive design or are so similar as to constitute ‘signature’ crimes; (2)
offenses that are part of a larger, continuing plan or conspiracy; and (3) offenses that are all
part of the same criminal transaction.” Shirley, 6 S.W.3d at 248 (citing Neil P. Cohen et al.,
Tennessee Law of Evidence § 404.11, at 180 (3d ed. 1995)). As relevant in the case here,
“[t]he larger, continuing plan category encompasses groups or sequences of crimes
committed in order to achieve a common ultimate goal or purpose.” State v. Hallock, 875
S.W.2d 285, 290 (Tenn. Crim. App. 1993) (citing N. Cohen, Tennessee Law of Evidence,
§ 404.11 (2d ed. 1990)).

Spicer outlined the determinations a trial court must make at a hearing on a motion
to consolidate or sever:

Before consolidation is proper, a trial court must conclude from the evidence
and arguments presented at the hearing that: (1) the multiple offenses
constitute parts of a common scheme or plan, Tenn. R. Crim. P. 14(b)(1); (2)
evidence of each offense is relevant to some material issue in the trial of all the
other offenses, Tenn. R. Evid. 404(b)(2); [State v.] Moore, 6 S.W.3d [235,]
239 [(Tenn. 1999)]; and (3) the probative value of the evidence of other
offenses is not outweighed by the prejudicial effect that admission of the
evidence would have on the defendant, Tenn. R. Evid. 404(b)(3).

Spicer, 12 S.W.3d at 445. Spicer also stated that “[a]s the comments to Rule of Criminal
Procedure 8 make clear, the purpose of the severance provisions is to ensure that the
defendant is insulated from the evidence of the other offenses when that evidence is not
otherwise admissible.” 12 S.W.3d at 446 (citing Tenn. R. Crim. P. 8, Advisory Comm’n
Comments; Burchfield, 664 S.W.2d at 288). The Tennessee Supreme Court explained:

-12-
 In certain situations, the State may offer evidence of prior crimes, wrongs or
acts that are relevant only to provide a contextual background for the case. To
do so,

the state must establish, and the trial court must find, that (1) the
absence of the evidence would create a chronological or
conceptual void in the state’s presentation of its case; (2) the
void created by the absence of the evidence would likely result
in significant jury confusion as to the material issues or evidence
in the case; and (3) the probative value of the evidence is not
outweighed by the danger of unfair prejudice.

State v. Goodwin, 143 S.W.3d 771, 780-81 (Tenn. 2004) (citation omitted) (quoting State
v. Gilliland, 22 S.W.3d 266, 272 (Tenn. 2000)).

Spicer added that “because the trial court’s decision of whether to consolidate
offenses is determined from the evidence presented at the hearing, appellate courts should
usually only look to that evidence, along with the trial court’s findings of fact and
conclusions of law, to determine whether the trial court abused its discretion by improperly
joining the offenses.” 12 S.W.3d at 445. However, the Tennessee Supreme Court held that
where “the proceedings on the consolidation issue were shortened by the fact that the matter
was not raised until the first morning of the trial[,] . . . . [its] analysis in such circumstances
necessarily requires review of the evidence at trial.” State v. Toliver, 117 S.W.3d. 216, 229
n.4 (Tenn. 2003).

Prior to trial, Kail properly filed a motion to sever in which he claimed that counts one
and seven, sexual exploitation of a minor (less than one hundred images) and contributing
to the delinquency of a minor, were wholly separate and unrelated to the remaining counts
in the indictment. His motion further claimed that counts one and seven were not part of a
common scheme or plan and that evidence relating to counts one and seven would not be
admissible upon the trial of the other offenses charged in the case. Kail asserted counts two
and three, especially aggravated sexual exploitation of a minor, should be tried together, and
counts four, five and six, sexual battery by an authority figure, incest, and rape, should be
tried together.

There is no written response from the State to Kail’s motion to sever in the record on
appeal. At the August 24, 2009 hearing on the motion to sever, the parties relied solely upon
argument and offered no proof. The State argued that severance was not necessary because
the same victim was alleged in each count. It additionally claimed that the “child
pornography pictures” found as a result of a search warrant were part of Kail’s common plan

-13-
or scheme and established his intent and motive to commit the offense. In response, defense
counsel argued that the proof did not establish a “scheme.” The record does not contain a
written order from the trial court denying Kail’s motion to sever. However, the trial court
orally denied the motion and stated the following:

[Defense Counsel,] based on what I know now, which is what I’ve heard, I’m
going to deny your motion at this time. I will allow you as you get more
information about what the State’s theory of the case is . . . . to make that
motion again [at a later time].”

In denying Kail’s motion to suppress and after defense counsel expressed concern
regarding the potential prejudice Kail would suffer as a result of the trial court’s denial of
Kail’s motion to sever, the trial court engaged in the following exchange with defense
counsel:

[Defense Counsel]: It’s my understanding [exhibit 3] is only pertinent or
relevant strictly as to the issue of Count Seven, which is the delinquency.

[The Court]: I think–I personally think it’s relevant with regard to the sexual
battery by an authority figure. I don’t see the relevance with regard to the
hundred images, but–

[Defense Counsel]: The concern, Your Honor, and I understand the Court’s
ruling, of the jury being able, because we have separate incidents occurring
here involving various activities, some of which involve [the victim] and some
of which involve the pornography issue, some contributing.

[The Court]: I understand there’s a lot, but, I even see an avenue for
acceptance here on part of a common scheme or plan. I see an acceptance for
giving the jury a complete look at what was happening.
....
[The Court]: I see it as relevant to the credibility of the witness, so I’m afraid
I’m going to have to overrule your objection.

Despite the comments made by the trial court at the suppression hearing, we conclude
that it failed to make the requisite findings pursuant to Spicer and the above authority;
namely, that there was a common scheme or plan, that evidence of one crime would be
admissible in the trial of the other, and that the probative value of admitting the evidence of
the other offenses was not outweighed by its prejudicial effect. Accordingly, we agree with

-14-
Kail and conclude that the trial court abused its discretion in denying Kail’s motion to sever.
State v. Denton, 149 S.W.3d 1, 13 (Tenn. 2004).

We must now examine the effect of the trial court’s error in failing to comply with the
dictates of Spicer in denying Kail’s motion to sever. In doing so, we must “determine what
harm, if any, [Kail] suffered as a result of the improper joinder of the offenses and whether
the gravity of the error warrants a new trial.” Dotson, 254 S.W.3d at 388. Upon “considering
the whole record, [t]he more the proof exceeds that which is necessary to support a finding
of guilt beyond a reasonable doubt, the less likely it becomes that an error affirmatively
affected the outcome on its merits.” Id. (internal quotations omitted). “The key question is
whether the error likely had an injurious effect on the jury’s decision-making process. If the
answer is yes, the error cannot be harmless.” Id. at 389.

As we understand Kail’s argument, he contends that counts one and seven should have
been severed from the remaining counts in the indictment and tried separately.2 Based on our
review of the record as a whole, we conclude that the offenses establish a common scheme
or plan. The proof at trial established that Kail downloaded pornographic images of young
girls engaged in explicit sex acts. It further established that Kail asked his minor adopted
daughter to watch a pornographic video with him prior to attempting sexual intercourse with
her. The State argues, and we agree, that the evidence supporting count seven, contributing
to the delinquency of a minor, enabled Kail to accomplish his overall common scheme or
plan, as intoxicating the victim would “facilitate [Kail’s] ability to produce sexually-oriented
materials featuring the victim and engage in sexual contact with her.”

We likewise conclude that each offense is relevant to some material issue in the trial
of all the other offenses. Kail’s defense theory was that someone else downloaded the
pornographic images found on the computers in his home and someone else took the
lascivious photographs of the victim found on the computers in his home. Accordingly,
identity was at issue in counts one, two, and three. The evidence relied upon by the State to
establish count one was derived from the computers recovered from Kail’s home. As
previously discussed, Kail admitted taking the photographs in exhibit 2, which served as the
basis for count two. The evidence in count two therefore would have been admissible in
counts one and three for the purpose of establishing identity. Moreover, while exhibit 3
served as the basis for count three, especially aggravated sexual exploitation of a minor, it
also would have been admissible in count seven because it corroborated the testimony of the
victim and her friend that Kail provided them with alcohol. Finally, we conclude that the

2
We do not consider, and Kail does not argue, counts five and six (rape and incest) because the jury
found Kail not guilty of these charges.

-15-
probative value of admitting the evidence supporting the offenses in counts one and seven
outweighed any unfair prejudicial effect.

Although the trial court failed to fulfill its responsibility of making findings of fact
and conclusions of law following the pre-trial hearing on Kail’s motion to sever, we conclude
that the evidence presented at trial established Kail’s common scheme or plan, that the
evidence of each offense would have been admissible in the trial of the other to prove
identity, motive, or intent, and that the probative value of the admission of the other offenses
was not outweighed by their prejudicial effect. Accordingly, we cannot say that the trial
court’s error had an injurious effect on the jury’s decision-making process. Because Kail has
failed to demonstrate prejudice as a result of the trial court’s error, he is not entitled to relief.

CONCLUSION

Upon review, we affirm the judgments of the Crockett County Circuit Court.

_________________________________
CAMILLE R. McMULLEN, JUDGE

-16-