State of Tennessee v. Kevin Allen Gentry

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 26, 2010

STATE OF TENNESSEE v. KEVIN ALLEN GENTRY

Direct Appeal from the Circuit Court for Sevier County
No. CR11894 Richard R. Vance, Judge

No. E2009-02041-CCA-R3-CD - Filed July 21, 2011

A Sevier County Circuit Court Jury convicted the appellant, Kevin Allen Gentry, of twelve
counts of especially aggravated sexual exploitation of a minor and ten counts of sexual
exploitation of a minor. The trial court imposed a total effective sentence of thirty-eight
years in the Tennessee Department of Correction. On appeal, the appellant argues that the
charges should be dismissed because the State “held back” the indictment in the instant case
in violation of Rule 8(a) of the Tennessee Rules of Criminal Procedure, that the trial court
erred in denying his motion to suppress because of an invalid search warrant, that the
evidence is insufficient to sustain his convictions, and that the trial court erred in sentencing.
Upon review, we affirm the judgments of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which JERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

Amber D. Haas, Sevierville, Tennessee, for the appellant, Kevin Allen Gentry.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; James B. Dunn, District Attorney General; and Jeremy D. Ball, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On December 18, 2006, the appellant was charged by presentment with twenty-three
counts of especially aggravated sexual exploitation of a minor. The counts involved victims
A.H., B.H., and L.H., all of whom were minor females unrelated to the appellant.1 Prior to
trial, the State dismissed count ten and proceeded to try the appellant on the remaining
twenty-two counts.

The State’s first witness at trial, Sevier County Sheriff’s Detective Matthew Cubberly,
testified that in the early morning hours of May 14, 2004, he executed a search warrant at the
appellant’s residence. When Detective Cubberly arrived, the appellant, A.H., and an adult
female were present at the residence. Pursuant to the search warrant, Detective Cubberly
confiscated several items from the appellant’s bedroom, including the appellant’s computer,
floppy disks, hard drive disks, CDs, DVDs, VHS tapes, film, notes, a printer, a digital
camera, and the appellant’s passport. Detective Cubberly stated that he took the confiscated
items to Investigator Melvin Pierce of the Internet Crimes Against Children Unit (ICACU)
at the Knoxville Police Department for forensic testing. Detective Cubberly said Investigator
Pierce found images of minor females in sexual situations on a CD which had been “stacked
around the computer.”

Later that day, Detective Cubberly took a statement from the appellant at the sheriff’s
department. The appellant told Detective Cubberly that “nude photographs and videos of
[A.H.] and [B.H.]” were on the computer. The appellant advised Detective Cubberly that he
also had photographs of the appellant and the victims engaged in sexual activity. Detective
Cubberly said the appellant was calm when he gave the statement and that he did not seem
upset.

Investigator Pierce testified that he analyzed the computer, CDs, and floppy disks
confiscated from the appellant’s residence. From one of the confiscated CDs, Investigator
Pierce retrieved twenty-two images of minors engaged in sexual acts or posed in a sexually
provocative manner. Investigator Pierce explained that each photograph had a “file created
date. That is specific to when the image was created and stored on the computer that copied
it to the disk, not [when it was] copied to the disk.”

Investigator Pierce made paper copies of the twenty-two images, placing each on a
separate page. Image number one was a photograph of the appellant. Investigator Pierce
said that image number two depicted a minor female “on all fours,” being penetrated from
behind by the appellant while she performed cunnilingus on another minor female.
Investigator Pierce said that image number three depicted the same scene except “a sexual
device” was being used. Image number four depicted the victims in the same poses while
the appellant looked at the camera. Image number five depicted a similar scene but the
appellant was not looking at the camera. Image number six depicted a similar scenario, but

1
It is the policy of this court to refer to minor victims of sexual offenses by their initials.

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the appellant was grasping the shoulder and waist of the minor he was penetrating.

Image number seven depicted the appellant engaged in vaginal intercourse with a
female who appeared to be a minor. Image number eight showed a minor female exposing
her vagina. In image number nine, the minor female was exposing her vagina and her anus.
Image numbers two through nine had a file created date of June 25, 2003.

Image number ten depicted a minor female lying on a mattress, exposing her vagina.
Image number twelve depicted a minor female exposing her breasts. Image numbers ten and
twelve had file created dates of June 20, 2002.

Image number thirteen depicted two minor females, one of whom was exposing her
vagina. Image number fourteen depicted three females, two of whom appeared to be minors,
exposing their buttocks and genitals. Image numbers thirteen and fourteen had a file created
date of June 28, 2002.

Image number fifteen depicted a minor female pulling up her shirt and exposing her
breasts. Image number sixteen depicted a minor female exposing her vagina. Image
numbers fifteen and sixteen had a file created date of June 25, 2002. Image number
seventeen showed a minor female exposing her breasts and vagina. This image had a file
created date of June 29, 2002.

Image number eighteen showed a minor female “doing . . . a back bend with her
breasts exposed.” Image number twenty showed a minor female exposing her breasts. Image
number twenty-one depicted a minor female exposing her vagina. Image numbers eighteen
through twenty-one had a file created date of June 25, 2002.

Image number twenty-two showed the appellant looking directly into the camera while
a minor female fellated him. Image number twenty-three also depicted the minor female
performing fellatio on the appellant. Finally, image number twenty-four depicted the
appellant performing cunnilingus on the minor female. The file created date on the final
three images was March 2, 2003.

Investigator Pierce said that a picture of the appellant’s driver’s license and social
security card was retrieved from the confiscated computer’s hard drive. Additionally, from
either “the floppy disk, CDs or the computer,” Investigator Pierce retrieved two photographs
of the three minor females, fully clothed.

A.H. testified that her date of birth was June 5, 1989, and that on June 25, 2003, she
was fourteen years old. She said that she met the appellant when she was nine years old and

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that she started going to the appellant’s residence when she was eleven years old. When she
began visiting, the appellant had an adult, live-in, girlfriend named Chanelle Rice. Two other
adults, a woman named Vickie and a man named Michael McGarvey, also lived at the house.
A.H. said that she moved into the appellant’s residence because her mother took drugs, and
A.H. believed the appellant’s residence was a better environment for her.

A.H. said that her sister, L.H., was born on November 6, 1987, and that L.H. and the
appellant developed a sexual relationship. Thereafter, in 2002 or 2003, A.H. began a
consensual sexual relationship with the thirty- or thirty-one-year-old appellant.

After A.H. began living at the appellant’s home, B.H., a friend from school, came to
the home to “hang out.” B.H. also had a sexual relationship with the appellant, and the three
of them engaged in sexual acts together. A.H. said that she eventually became jealous of
B.H. and did not want her to visit. A.H. said that the appellant would insist that she bring
B.H. to his home and that he would go get B.H. A.H. said that she could not leave the
appellant’s home because she had nowhere else to go. A.H. stated that the appellant knew
her age and the ages of L.H. and B.H.

A.H. identified the photographs of the appellant and the three minors. She stated that
the scenes were not “staged” and that the photographs depicted “actual sexual activity.” She
said that Chanelle Rice and Vickie took the photographs but that the appellant was involved
in “positioning or things like that.” She acknowledged that she knew the photographs were
being taken.

A.H. said that image numbers two through six were of her, B.H., and the appellant.
Image number seven depicted the appellant and B.H. A.H. said she was depicted in image
numbers eight, nine, twelve, thirteen, fifteen, twenty, and twenty-one. Image number ten
depicted B.H. A.H. said her sister, L.H., was depicted in image numbers sixteen through
nineteen. She said that image number fourteen depicted A.H., L.H., and Chanelle Rice.
Finally, she stated that image numbers twenty-two through twenty-four depicted A.H. and
the appellant. A.H. stated that she had never seen anyone but the appellant use the computer
in his bedroom.

B.H. testified that her date of birth was November 21, 1988. In 2003, when she was
fourteen years old, she began spending time with A.H. and the appellant at his residence. She
stated that she engaged in consensual sexual acts with the appellant and with the appellant
and A.H. She stated that occasionally the sexual acts were photographed. She said that the
appellant did not ask her to pose for the photographs and that she knew the photographs were
being taken. B.H. maintained that some of the photographs were taken by Vickie and that
one photograph may have been taken by A.H. After viewing the photographs admitted at

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trial, B.H. acknowledged that she was depicted in image numbers two through seven and
number ten. B.H. said both she and A.H. had used the appellant’s computer, but the
appellant’s roommates had not used it.

The appellant chose not to put on any proof at trial.

Based upon the foregoing, the jury found the appellant guilty of especially aggravated
sexual exploitation of a minor as alleged in counts one through nine. Additionally, the jury
found the appellant guilty of especially aggravated sexual exploitation of a minor as alleged
in counts twenty-one through twenty-three. Finally, the jury found the appellant guilty of
sexual exploitation of a minor as alleged in counts eleven through twenty.

At sentencing, Detective Cubberly testified that he had investigated a previous rape
of a child case involving the appellant. Detective Cubberly stated that the appellant failed
to appear in court on that charge because he “faked a suicide.” The appellant was later
apprehended in South Carolina.

Brent Horst, the attorney who represented the appellant on the rape of a child case,
testified that he became aware of the photographs in the instant case “a little while after” the
appellant was indicted for rape of a child. He stated that A.H., a victim in the instant case,
was a witness in the rape case.

The appellant testified that he was not guilty of the instant charges. He admitted he
was in some of the photographs; however, he denied that he took any of the photographs or
that he knew the photographs were in his home. The appellant stated that he did not ask the
victims to take the photographs and that he specifically told his roommate not to take the
photographs. The appellant said “[t]here was only one picture where I was facing said
camera . . . [and] it seems that any picture that was taken after that was taken from a different
angle in the house like she had hid somewhere else in the house and took them.” On cross-
examination, the State asked the appellant, “What did you do to ensure that [the roommate]
had not taken a picture?” The appellant responded, “Well, I didn’t do anything at the time.
I was a bit busy.”

At the conclusion of the sentencing hearing, the trial court observed that the
involvement of another person in the offenses “does not negate [the appellant’s] own guilt.”
The court stated that “[w]hile [the appellant’s] record of criminal convictions was not
extensive, it was significant because of the conviction for rape of a child and the other minor
[driving] offenses,” thus justifying the imposition of the maximum sentence of twelve years
for each of the especially aggravated sexual exploitation of a minor convictions and two
years for each of the sexual exploitation of a minor convictions. The court considered as

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mitigation that the victims did not suffer serious bodily injury. The court also found that the
appellant did not exhibit any remorse for his crimes.

The trial court noted that several of the appellant’s convictions were based upon
photographs which were taken, at most, minutes apart; therefore, the court found that the
sentences for the convictions based upon activity closely related in time should be served
concurrently with each other. Regardless, the court found that some consecutive sentencing
was warranted because the appellant “was convicted of two or more offenses involving the
sexual abuse of minors.” The court noted that “one of those minors was actually living with
him. Another was her sister. Another, a friend.” The court stated that the relationship
between the appellant and the victims lasted over an extended period of time, approximately
one year. The court found that the appellant engaged in “an extensive, pervasive, continuous
course of conduct engaging in extensive pervasive sexual activity with these children.” The
court also noted that the victims had suffered “mental anguish.” Accordingly, the court
ordered that the sentences for counts one through seven be served concurrently with each
other, counts eight and nine should be served concurrently with each other but consecutively
to counts one through seven, counts eleven through twenty should be served concurrently
with each other but consecutively to counts eight and nine, and counts twenty-one through
twenty-three should be served concurrently with each other but consecutively to counts
eleven through twenty, for a total effective sentence of thirty-eight years. Finally, the court
ordered that the instant sentences be served consecutively to the appellant’s previously
imposed twenty-five-year sentence for rape of a child. The court found “that this extended
confinement is necessary to protect society and the community and that the aggregate of these
sentences totally sixty-three years reasonably relates to the severity and the tremendous
magnitude of the offenses . . . which this defendant has committed.”

On appeal, the appellant contends that “the State violated the ‘holding back’ statute
in bringing the [instant] charges,” that the trial court erred in denying his motion to suppress,
that the evidence is insufficient to sustain his convictions, and that the trial court erred in
sentencing.

II. Analysis

A. Rule 8 Violation

The appellant argues that the trial court erred by denying his motion to dismiss the
indictment, contending that the State “held back” the indictments in the instant case and

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thereby violated Rule 8(a) of the Tennessee Rules of Criminal Procedure.2

At the hearing on the motion to dismiss the sexual exploitation of a minor indictment,
the appellant argued that the photographs, which were the bases for the especially aggravated
sexual exploitation of a minor charges, were “part and parcel” of the rape case. The appellant
contended that Rule 8 therefore required that all of the offenses be joined in the same
indictment. The appellant argued that since the charges were not joined, the indictment on
the instant charges must be dismissed. The State contended that the indictment on the instant
charges was returned before the appellant’s trial for rape of a child and that the charges
involved different victims. Further, the State argued that the delay in examining the
computer and photographic evidence resulted from the appellant’s absconding and faking his
suicide. The State asserted that the investigation and prosecution of the instant charges were
suspended following the appellant’s alleged death; however, the prosecution “resumed in
earnest” after the appellant was apprehended in South Carolina.

Detective Cubberly testified at the suppression hearing that he received a complaint
from a minor female victim, alleging that she had been involved in a sexual relationship with
the appellant and that the appellant was involved with another teenage female who was living
with him. The victim told Detective Cubberly that the appellant had taken photographs of
her and stored them on a computer. On May 13, 2004, while investigating the allegations,
Detective Cubberly obtained a search warrant for the appellant’s residence and seized the
computer and photographs at issue in the instant case. The items were taken to Knoxville
for forensic examination. Before the items were analyzed, the appellant was indicted in
January 2005 on three counts of statutory rape and in February 2005 on one count of rape of
a child. After making bond on those charges, the appellant absconded and faked his suicide.
The computer and other items were not analyzed because the appellant was allegedly dead.

The appellant was indicted on the instant charges in December 2006 after he was
apprehended in South Carolina. On July 27, 2007, the appellant was convicted by a jury for
rape of a child. The appellant filed a motion to dismiss the indictment on the especially
aggravated sexual exploitation of a minor charges on July 27, 2007. The trial court denied
the motion, and trial commenced in April 2009.

Tennessee Rule of Criminal Procedure 8(a)(1) provides that

[t]wo or more offenses shall be joined in the same indictment,
presentment, or information, with each offense stated in a

2
The record does not contain a transcript of the hearing on this issue because the tape was lost
by the court reporter; however, the record does contain a statement of the evidence.

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

(A) based on the same conduct or arise from the
same criminal episode;

(B) within the jurisdiction of a single court; and

(C) known to the appropriate prosecuting official
at the time of the return of the indictment(s),
presentment(s), or information(s).

The Advisory Commission Comments to the rule explain that “[t]his rule is designed
to encourage the disposition in a single trial of multiple offenses arising from the same
conduct and from the same criminal episode, and should therefore promote efficiency and
economy.” The comments caution that

section (a) is meant to stop the practice by some prosecuting
attorneys of “saving back” one or more charges arising from the
same conduct or from the same criminal episode. Such other
charges are barred from future prosecution if known to the
appropriate prosecuting official at the time that the other
prosecution is commenced, but deliberately not presented to a
grand jury. “Appropriate prosecuting official” shall be so
construed as to achieve the purpose of this rule, which is the
prevention of a deliberate and willful “saving back” of known
charges for future prosecution.

Tenn. R. Crim. P. 8, Advisory Comm’n Cmts. This court has explained that “[t]he policy
behind Rule 8(a) is to avoid piecemeal litigation and to disallow the ‘saving back’ of charges
arising from the same conduct or same criminal episode.” State v. Baird, 88 S.W.3d 617, 621
(Tenn. Crim. App. 2001). A trial court’s findings of fact in a Rule 8 “hearing are binding
upon this court unless the evidence contained in the record preponderates against them”;
however, this court reviews the trial court’s conclusions of law de novo. Id. at 620.

Initially, we note that the timeline in this case reflects that the presentments charging
the appellant in the rape of a child case and the sexual exploitation of a minor cases were all
issued before trial on any charges. Additionally, there were charges of statutory rape to
which the appellant plead guilty. The fact that there were separate charging instruments is
not in itself problematic because Rule 8 “does not necessarily prohibit a subsequent

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indictment, provided it is consolidated with the prior indictment before trial or disposition.”
Baird, 88 S.W.3d at 622. Regardless, consolidation is not required unless “(1) the offenses
arise from the same conduct or criminal episode; (2) the conduct is known to the appropriate
prosecuting official at the time of the return of the indictment; and (3) the offenses fall within
the jurisdiction of a single court.” Id. at 620.

This court has previously explained that “[t]he term ‘same conduct’ refers to ‘a single
action which may be divisible into distinct offenses.’” Id. (quoting State v. Dunning, 762
S.W.2d 142, 143-44 (Tenn. Crim. App. 1988)). Further, this court has explained that the
term

criminal episode relates to several distinct offenses which arise
out of separate actions or conduct but which occur in a closely
connected series of events in place and time. . . . A critical
characteristic of single episode offenses, particularly in cases
involving otherwise unrelated offenses or offenders, is the fact
that proof of one offense necessarily involves proof of the
others.

Id. at 620-21 (internal quotations and citation omitted).

We note that the indictments or presentments for the rape of a child and statutory rape
charges are not included in the record on appeal. Ordinarily, “[i]n the absence of an adequate
record on appeal, this court must presume that the trial court’s rulings were supported by
sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); see also
Tenn. R. App. P. 24(b) (providing that the appellant bears the “burden of ensuring that the
record on appeal conveys a fair, accurate, and complete account of what has transpired with
respect to those issues that are the bases of appeal”).

However, this court’s opinion in the rape of a child case reflects that the victim was
T.C. See State v. Kevin Allen Gentry, No. E2008-02226-CCA-R3-CD, 2010 WL 376597,
at *1 (Tenn. Crim. App. at Knoxville, Feb. 3, 2010), perm. to appeal denied, (Tenn. 2010).
In the instant case, the victims were A.H., L.H., and B.H. The victims of the offenses were
not the same nor were the offenses. The appellant argues that “[t]he charges of sexual
exploitation of a child are part and parcel with the statutory rape charges and in fact the
photographs are compelling evidence supporting these cases. They involve the same
defendant, the same victims, and are from the same time period.” The court found that the
two cases did not involve the same conduct nor did they relate to the same criminal episode.
Further, there is nothing in the record that indicates that evidence regarding one set of crimes
would be admissible in a trial regarding the other crimes. Moreover, the trial court found that

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the appellant’s absconding and faking his death “was obviously outside the State’s control”
and that any delay in indicting the appellant on the instant charges was attributable to the
appellant’s actions and not to “any lack of due dilligence [sic] on the part of the State.” The
court stated that it could “find no abuse by the State in bringing these charges in the fashion
and time that they did.” We agree with the trial court and conclude that the especially
aggravated sexual exploitation of a minor and the rape charges did not arise from the same
conduct or the same criminal episode for the purposes of Rule 8(a). Thus, we conclude that
the trial court did not err in denying the motion to dismiss the indictment.

B. Motion to Suppress

Prior to trial, the appellant filed a motion to suppress evidence taken from his home,
arguing that the affidavit underlying the search warrant failed to show the informants’ basis
of knowledge or their reliability. The State disagreed, arguing that while Tennessee law
requires both a basis of knowledge and reliability, these components do not have to be
expressly demonstrated when information is derived from citizen informants, such as those
in the instant case. The State noted that two of the informants were the victims and that their
statements corroborated each other. The State further noted that two other informants gave
statements which corroborated each other as well as the statements given by the victims.
Therefore, the affidavit sufficiently established the informant’s basis of knowledge and
veracity.

The challenged affidavit, which was prepared and signed by Detective Cubberly on
May 13, 2004, stated the following:

On May 4, 2004 at 2PM [victim #1’s father], a citizen of
Knox County, TN., brought his daughter (victim # 1) who is 15
years old to report that she had been involved in a sexual
relationship with Kevin Allen Gentry a 32-year-old male. Victim
#1 stated that she had been going to Kevin Allen Gentry[’s
residence] at 810 Layman Dr. Dandridge, TN, in Sevier County
from May 24, 2003 to November 29, 2003. The victim said that
Kevin Allen Gentry is living with and having sexual intercourse
with a female who is 14 years old. Victim #1 also stated that on
one occasion Kevin Gentry was having sexual intercourse with
her and other juvenile while a female named Vicki took
photographs of them having sex. Victim #1 has seen the
photographs depicting Victim # 1 and the 14-year-old female
juvenile (names disclosed to Judge/Magistrate) on Kevin
Gentry’s [c]omputer in his home. Victim #1 said that she has

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 had sexual intercourse with Kevin Gentry approximately 15
times. Victim #1 also said that she has seen approximately 15
females, some depicted as juveniles, in a pornographic nature on
his computer that he downloaded from the internet or he put
them on himself.

On May 6, 2004 I interviewed victim # 2 a 14 year old
female who stated that she has had sexual intercourse with
Kevin Gentry (age 32) on several occasions[.] She also said that
she, victim #1, another juvenile and Kevin Gentry had sexual
intercourse at the same time. Both victims stated that Kevin
Gentry knew that they were under age. Victim # 2 stated that
this happened from August 2003 to March 2004 at said
residence.

On May 11, 2004 I took a statement from an independent
witness (witness 1) a 14 year old female who said she is friends
with the 14 year old girlfriend, Victim # 1, Victim # 2, and
Kevin Gentry, all of whom have told her independently that they
had been involved in sexual intercourse[,] with one another.

On May 11, 2004 I took a statement from witness # 2, the
Mother of witness # 1, who stated that she was told by the 14
year old girlfriend who lives with Kevin Gentry that they were
involved in a sexual relationship together. Witness # 2 stated
that Kevin Gentry possibly has [a] homemade pornographic
movie of him and his 14-year-old girlfriend. Witness # 2 said
that Kevin Gentry had asked another friend to transfer VHS
[t]apes to DVD’s, said tapes were of him and a[n] ex-girlfriend
having sexual intercourse. But when Kevin Gentry came with
more tapes the friend assumed that it was of Kevin Gentry and
his new girlfriend who was only 13 at the time, to which Kevin
Gentry did not state that the tapes show something different.

The trial court found that Detective Cubberly personally knew the informants. The
court said, “It’s clear that these are fourteen-, fifteen-year-old children, girls. They are not
in the category of criminal informants.” The court stated that the independent statements of
each informant “corroborates the others” and clearly established probable cause.

In a suppression hearing, “[q]uestions of credibility of the witnesses, the weight and

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value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the
trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a
trial court’s findings of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise.” Id. Nevertheless, appellate courts will review the trial court’s
application of law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn.
2001). Furthermore, the State, as the prevailing party, is “entitled to the strongest legitimate
view of the evidence adduced at the suppression hearing as well as all reasonable and
legitimate inferences that may be drawn from that evidence.” Odom, 928 S.W.2d at 23.
Moreover, we note that “in evaluating the correctness of a trial court’s ruling on a pretrial
motion to suppress, appellate courts may consider the proof adduced both at the suppression
hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

Our supreme court has explained that

[t]he Fourth Amendment to the United States Constitution
requires that search warrants issue only “upon probable cause,
supported by Oath or affirmation.” Article I, Section 7 of the
Tennessee Constitution precludes the issuance of warrants
except upon “evidence of the fact committed.” Therefore, under
both the federal and state constitutions, no warrant is to be
issued except upon probable cause. Probable cause has been
defined as a reasonable ground for suspicion, supported by
circumstances indicative of an illegal act.

Id. at 294 (footnote and citations omitted). In this state, “a finding of probable cause
supporting issuance of a search warrant must be based upon evidence included in a written
and sworn affidavit.” Id. To establish probable cause, the affidavit must set forth facts from
which the issuing magistrate may reasonably conclude that the evidence sought will be found
in the place to be searched. State v. Norris, 47 S.W.3d 457, 470 (Tenn. Crim. App. 2000).
Furthermore, “‘affidavits must be looked at and read in a common sense and practical
manner’, and . . . the finding of probable cause by the issuing magistrate is entitled to great
deference.” State v. Bryan, 769 S.W.2d 208, 211 (Tenn. 1989) (quoting State v. Melson, 638
S.W.2d 342, 357 (Tenn. 1982)).

Our supreme court has explained that “[a]n affidavit may include hearsay information
supplied by a confidential informant as a basis to establish probable cause[, but if] the
hearsay information is supplied by a criminal informant or a person from a ‘criminal milieu,’
we apply a two-prong test in determining the reliability of the information.” State v.
Smotherman, 201 S.W.3d 657, 662 (Tenn. 2006) (citing State v. Williams, 193 S.W.3d 502,
507 (Tenn. 2006)). Generally, when probable cause is established from a tip from an

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anonymous or criminal informant, the court must apply the factors set forth in State v.
Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989), namely that the information must indicate the
veracity of the informant and the informant’s basis of knowledge, to determine whether the
tip established probable cause. Smotherman, 201 S.W.3d at 662; see also Spinelli v. United
States, 393 U.S. 410 (1969), Aguilar v. Texas, 378 U.S. 108 (1964). However, Tennessee
law draws a distinction between a “citizen informant” and an informant from “the criminal
milieu.” State v. Melson, 638 S.W.2d 342, 354 (Tenn. 1982). While information from a
criminal informant must be judged by the Aguilar-Spinelli test, known citizen informants
typically enjoy a presumption of reliability. See id. at 356-57; see also State v. Luke, 995
S.W.2d 630, 637 (Tenn. Crim. App. 1998). The fact that the victims and witnesses were not
specifically named in the affidavit does not render the affidavit unreliable; “[t]he name of a
citizen informant is not required to be disclosed in the affidavit.” State v. Cauley, 863
S.W.2d 411, 417 (Tenn. 1993).

The trial court found that the information contained in the affidavit came from citizen
informants; therefore, the information was presumed to be reliable. We agree with the trial
court. Detective Cubberly stated that he knew the victim informants. One of the minor
victims explicitly stated that photographs had been taken of sexual activity involving herself
and the appellant and that the photographs were in the appellant’s residence. We conclude
that this information alone constituted probable cause. However, as the trial court noted, the
victim’s statements were corroborated by the other informants. Accordingly, we conclude
that the appellant is not entitled to relief on this issue.

C. Sufficiency of the Evidence

Next, we address the appellant’s challenge to the sufficiency of the evidence
supporting his convictions. On appeal, a jury conviction removes the presumption of the
appellant’s innocence and replaces it with one of guilt, so that the appellant carries the
burden of demonstrating to this court why the evidence will not support the jury’s findings.
See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that
no reasonable trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P.
13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

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 Tennessee Code Annotated section 39-17-1003(a)(1) provides that “[i]t is unlawful
for any person to knowingly possess material that includes a minor engaged in . . . [s]exual
activity.” A minor is defined as “any person who has not reached eighteen (18) years of
age.” Tenn. Code Ann. § 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.” Tenn. Code Ann. § 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.” Tenn. Code Ann. § 39-17-1002(8)(A), (G). A person commits especially
aggravated sexual exploitation of a minor who knowingly promotes, uses, or permits a minor
to participate in the performance or in the production of material which includes the minor
engaging in sexual activity. Tenn. Code Ann. § 39-17-1005(a)(1).

The appellant argues that the testimony at trial reflected that a number of people had
access to the appellant’s residence and that someone other than the appellant took the
photographs in question. The appellant said that “although admittedly engaged in sexual
activity with minors, [he] did not produce the photographs himself . . . [which] clearly places
doubt on the appellant’s involvement in the production of the photographs.” We disagree.

The photographs, which depicted the appellant having sex with minors or the minors
displaying their genitals and/or breasts, were found on a disk beside the computer in the
appellant’s bedroom. Two of the victims testified that they knew the photographs were being
taken. A.H. testified that the appellant told the victims to get into various poses for the
photographs. In several of the photographs, the appellant is looking at the camera, clearly
aware the photographs were being taken. Additionally, the appellant told Detective Cubberly
during the execution of the search warrant that the detective would find sexually explicit
photographs of himself and the victims on his computer. The jury, acting within its purview,
found that the appellant knowingly possessed the photographs found in his home and that he
knowingly promoted, used, or directed the minor(s) to participate in the performance or the
production of materials showing the minor victims engaging in sexual activity. We conclude
that the evidence is sufficient to sustain the appellant’s convictions.

D. Sentencing

The appellant challenges both the length of the sentences imposed and the imposition
of consecutive sentencing. Appellate review of the length, range or manner of service of a
sentence is de novo. See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo
review, this 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

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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 sentencing practices for similar offenses in Tennessee; (7) any statement by the
appellant in his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn.
Code Ann. §§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn.
1991). The burden is on the appellant to demonstrate the impropriety of his sentence. See
Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts. Moreover, if the record reveals
that the trial court adequately considered sentencing principles and all relevant facts and
circumstances, this court will accord the trial court’s determinations a presumption of
correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

The offenses were committed between March 2002 and June 2003. For offenses
committed prior to June 7, 2005, sentencing was governed by prior law, which provided for
“presumptive” sentences. The presumptive sentence was the midpoint in the range for Class
A felonies and the minimum in the range for all remaining felonies. See Tenn. Code Ann.
§ 40-35-210(c), (d) (1997 & 2003). Trial courts were to enhance and/or mitigate a
defendant’s sentence based upon the application of enhancement and mitigating factors. See
Tenn. Code Ann. § 40-35-210(d), (e) (1997 & 2003). The appellant was convicted of
especially aggravated sexual exploitation of a minor, a Class B felony, which carried a range
of between eight and twelve years for a standard, Range I offender. See Tenn. Code Ann.
§ 40-35-112(a)(2); 39-17-1005(c) (1997 & 2003). At the time the appellant committed the
offenses, sexual exploitation of a minor was a Class E felony which carried a range of
between one and two years for a standard, Range I offender. See Tenn. Code Ann. § 40-35-
112(a)(5); 39-17-1003(c) (1997 & 2003).3

In response to Blakely v. Washington, 542 U.S. 296 (2004), our legislature amended
Tennessee’s sentencing scheme and eliminated presumptive sentences. However, our code
provides that “defendants who are sentenced after June 7, 2005, for offenses committed on
or after July 1, 1982,” cannot be sentenced pursuant to the amended sentencing act without
a waiver of the defendant’s ex post facto protections. Tenn. Code Ann. § 40-35-210,
Compiler’s Notes. In the instant case, nothing in the record indicates that the appellant
executed a written waiver of his ex post facto protections; therefore, the trial court was
required to sentence him under the prior sentencing law. See State v. Jarvis Harris, No.
W2006-02234-CCA-R3-CD, 2007 WL 2409676, at *11 (Tenn. Crim. App. at Jackson, Aug.
24, 2007).

3
As of July 1, 2005, sexual exploitation of a minor was designated a Class D felony. Tenn.
Code Ann. § 39-17-1003(e), amends. (Supp. 2005).

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 The trial court, recognizing the Blakely decision, applied enhancement factor (1)
based upon the appellant’s prior criminal history which consisted of the appellant’s rape of
a child conviction and minor traffic offenses. See Tenn. Code Ann. § 40-35-114(1). The
trial court’s application of enhancement factor (1) did not violate the dictates of Blakely. See
Tenn. Code Ann. § 40-35-114(1); State v. Gomez, 239 S.W.3d 733, 740 (Tenn. 2007).

The trial court found that the appellant’s “record of criminal convictions was not
extensive, [however,] it was significant because of the conviction for rape of a child and the
other minor offenses” and justified the imposition of the maximum sentence for each of the
instant convictions. The court stated that the single mitigating factor, namely that there was
no serious bodily injury to the victims, did not require a downward departure in the sentence.
See Tenn. Code Ann. § 40-35-113(1).

Generally, although the trial court should also consider enhancement and mitigating
factors, the statutory factors are advisory only. See Tenn. Code Ann. § 40-35-114 (2006);
State v. Carter, 254 S.W.3d 335, 343-44 (Tenn. 2008). We note that “a trial court’s weighing
of various mitigating and enhancement factors [is] left to the trial court’s sound discretion.”
Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select any sentence
within the applicable range so long as the length of the sentence is ‘consistent with the
purposes and principles of [the Sentencing Act].’” Id. at 343. “[A]ppellate courts are
therefore left with a narrower set of circumstances in which they might find that a trial court
has abused its discretion in setting the length of a defendant’s sentence . . . [and are] bound
by a trial court’s decision as to the length of the sentence imposed so long as it is imposed
in a manner consistent with the purposes and principles set out in sections -102 and -103 of
the Sentencing Act.” Id. at 346. Therefore, we conclude that the trial court was entitled to
impose the maximum sentence for the instant convictions based upon the application of
enhancement factor (1).

In connection with this issue, the appellant argues that his conviction of rape of a child
is part of his prior criminal history because “the State chose to try that case first.” The
appellant argues that this prior offense and the instant offenses “occurred simultaneously”
and that, therefore, the trial court should not have imposed a maximum sentence on the basis
of a prior criminal history. We examined, supra, the appellant’s contention that his cases
should have been joined and concluded the complaint was not meritorious. This issue is
without merit.

Next, we turn to the appellant’s contention that the trial court erred in ordering
consecutive sentencing. Generally, “[w]hether sentences are to be served concurrently or
consecutively is a matter addressed to the sound discretion of the trial court.” State v.
Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997).

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 As we stated earlier, the trial court found that the appellant’s convictions which were
based upon photographs taken minutes apart should be served concurrently with each other.
However, in determining that consecutive sentencing was appropriate for other convictions,
the court found that the appellant was convicted of two or more offenses involving the sexual
abuse of minors. The court stated that the offenses occurred over the span of more than one
year, during which time the appellant engaged in “an extensive, pervasive, continuous course
of . . . sexual activity with these children” and that the victims suffered mental anguish.”

Tennessee Code Annotated section 40-35-115(b) provides that consecutive sentencing
may be appropriate when

the defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the
aggravating circumstances arising from the relationship between
the defendant and victim or victims, the time span of
defendant’s undetected sexual activity, the nature and scope of
the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims.

Tenn. Code Ann. § 40-35-115(b)(5); see also State v. Wilkerson, 905 S.W.2d 933,936 (Tenn.
1995). This court has previously held that especially aggravated sexual exploitation of a
minor is child sexual abuse for the purposes of Tennessee Code Annotated section 40-35-
115(b)(5), and, through dicta, stated that sexual exploitation of a minor would likewise be
considered child sexual abuse. State v. John Jason Burda, No. M2006-02523-CCA-R3-CD,
2009 WL 1181349, at **15-16 (Tenn. Crim. App. at Nashville, May 4, 2009), perm. to
appeal denied, (Tenn. 2009). Additionally, the appellant’s previous rape of a child
conviction clearly constitutes child sexual abuse.

The instant offenses involved three minor victims and occurred over an extended
period of time. The trial court observed the victims in court and saw their level of “mental
anguish.” The trial court stated that consecutive sentencing was proper because “extended
confinement is necessary to protect society and the community and that the aggregate of these
sentences totalling sixty-three years reasonably relates to the severity and the tremendous
magnitude of the offenses . . . which this defendant has committed.” Given the appellant’s
“extensive, pervasive, [and] continuous” abuse of the victims, we conclude that the trial court
did not err in imposing consecutive sentencing.

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 III. Conclusion

In sum, we conclude that the trial court did not err in denying the motion to dismiss
the indictment, in overruling the appellant’s motion to suppress, or in sentencing the
appellant. Further, the evidence adduced at trial supports the appellant’s convictions.
Therefore, the judgments of the trial court are affirmed.

___________________________________
NORMA McGEE OGLE, JUDGE

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