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.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and

JOHN EVERETT WILLIAMS, 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. Prior to

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trial, the State dismissed count ten and proceeded to try the appellant on the remaining

twenty-two counts.

The State’sfirst 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

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 crossexamination, 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 protectsociety 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.

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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 wasinvolved 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

The record does not contain a transcript of the hearing on this issue because the tape was lost 2

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)).

Oursupreme 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 bya criminal informant or a person froma ‘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).

 As of July 1, 2005, sexual exploitation of a minor was designated a Class D felony. Tenn. 3

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) providesthat 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 protectsociety 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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