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State v. Vandenburg

Court of Criminal Appeals of Tennessee, Nashville

August 8, 2019

STATE OF TENNESSEE
v.
BRANDON ROBERT VANDENBURG

          Session January 17, 2019

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

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

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

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

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

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall and Timothy L. Easter, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural Background

         This appeal stems from Defendant's participation in the aggravated rape, aggravated sexual battery, and unlawful photography of the victim, E.L., [2] along with Co-defendants Corey Batey, Jaborian McKenzie, and Brandon Banks. In August 2013, the Davidson County Grand Jury indicted Defendant and his co-defendants on five counts of aggravated rape, two counts of aggravated sexual battery, one count of tampering with evidence, and one count of unlawful photography. Defendant and Co-defendant Batey proceeded to trial in January 2015. The jury found Defendant guilty of four counts of aggravated rape, one count of attempted aggravated rape, two counts of aggravated sexual battery, one count of tampering with evidence, and one count of unlawful photography. On June 23, 2015, the trial court granted Defendant's motion to declare a mistrial[3] because the jury foreperson failed to disclose that he had been named a victim of statutory rape in a prior criminal case. The trial court determined that the jury foreperson's conduct "g[ave] rise to a presumption of bias" and that the foreperson was not "a fair and impartial juror."

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

         Jury trial

         Captain Donnie Harville[4] testified that he worked for the Vanderbilt Police Department (VPD) in the Investigation Division. Captain Harville explained that the VPD had "a memorandum of understanding with [the Metro Nashville Police Department] where they investigate certain crimes for the [VPD] when major felonies happen on campus. They usually come in and assist us or they can take lead over the investigation." Captain Harville explained that the VPD began investigating the current offenses because "[t]he Housing Unit was reviewing the video surveillance on the NICE System, [5] and it came across some suspicious activity, and they alerted the [VPD] to investigate." He learned of the video on the morning of June 26, 2013. When Captain Harville reviewed the June 23, 2013 surveillance footage from multiple cameras in Gillette Hall, a dormitory for athletes on Vanderbilt's campus, he observed "four males carrying an unconscious female into Gillette Hall."

         Captain Harville identified the DVDs that contained the surveillance footage from multiple cameras in Gillette Hall during the time period that the offenses occurred. He testified that the video surveillance footage depicted a vehicle approaching one entrance of the dorm. A person, whom Captain Harville identified as Defendant, exited the vehicle and attempted to enter the dorm by scanning an ID card. The video surveillance footage also depicted Defendant speaking with two individuals, Co-defendants McKenzie and Banks, outside of the dorm. Another individual, whom Captain Harville identified as Co-defendant Batey, approached Defendant. The video then depicted Defendant carrying an unconscious female from the vehicle into the dorm. Video surveillance footage from inside Gillette Hall depicted Defendant carrying the unconscious female, whom Captain Harville identified as E.L, into the dorm with Co-defendants McKenzie, Banks, and Batey. Co-defendant McKenzie pushed the elevator button while Defendant carried E.L. Defendant and Co-defendant Banks entered the elevator with E.L. and rode it to the second floor. Co-defendants Batey and McKenzie later joined Defendant, Co-defendant Banks, and E.L. on the second floor. On cross-examination, Captain Harville agreed that Defendant appeared to struggle to carry E.L. while he waited for the elevator to arrive on the first floor of Gillette Hall.

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

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

         At 4:16 a.m., the surveillance video in East Hall depicted Defendant standing in a hallway speaking with Mr. van der Wal, Austyn Carta-Samuels, and Mr. Boyd. From 4:52 a.m. to 5:14 a.m., E.L. exited Room 213, entered the bathroom, and either returned to Room 213 or walked around the hallway several times. Around 11:50 a.m., E.L., who had entered Room 214 around 8:00 a.m., left with another female, exited Gillette Hall, and drove off in her vehicle which was parked in front of the dorm.

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

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

         During his interview with Mr. Black, Defendant stated that he saw E.L., whom he had met previously at Tin Roof, a local bar, on the night of June 22. He explained that both he and E.L. were intoxicated that night. They attempted to get into her apartment but were unable, so Defendant drove them in E.L.'s vehicle to Gillette Hall. Defendant told Mr. Black that E.L. was not very coherent but had not passed out during the drive. Once they arrived at Gillette Hall, Co-defendants McKenzie, Batey, and Banks helped Defendant carry E.L. to his room on the second floor. Defendant told Mr. Black that they put E.L. in his bed; he then went to East Hall to spend the night because E.L. had thrown up in the room. Defendant denied that he or any of the Co-defendants had sexual contact with E.L., took photographs of her, or had sexual intercourse with her. Later in the interview, Defendant explained that he covered up the security camera on the second floor of Gillette Hall because he "wasn't thinking clearly" and "there was a girl passed out in [his] room." Defendant gave a signed, written statement to Mr. Black that reiterated his verbal statement. On the evening of Friday, June 28, Mr. Black placed Defendant on interim suspension from Vanderbilt University.

         Detective Mayo testified that he had worked for the Metro Nashville Police Department ("MNPD") since 2000. In June 2013, Detective Mayo worked in the Sex Crimes Unit of the MNPD. On June 26, 2013, Detective Mayo received a phone call from his supervisor, Sergeant Shreeve, around 2:30 p.m. Sergeant Shreeve asked Detective Mayo to respond to the VPD's administrative building. When Detective Mayo arrived, he met with Sergeant Shreeve and a VPD officer. He observed several still shots obtained from the surveillance videos while another officer interviewed E.L. With the assistance of the VPD and other Vanderbilt officials, Detective Mayo identified the individuals depicted in the still photographs. Detective Mayo described E.L. as "somewhat confused" and "dumbfounded" about the events of June 23. Detective Mayo noted that because the still photographs were timestamped, he could estimate when the offenses occurred. He estimated that eighty to ninety hours elapsed between the time when the offenses occurred and when the VPD and the MNPD interviewed E.L. Detective Mayo asked E.L. to consent to a medical-legal examination at Vanderbilt University Hospital. After the examination, E.L. retrieved clothing that she wore during the offenses "[f]or possible evidence collection."

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

They helped me bring her up to the room and -- man, I can't even talk about this s[**]t. Right as I got in there, I changed to my pajamas. At some point, they told me [Co-defendant McKenzie] took off his shirt. He told me -- after we all got interrogated, they told me . . . hey we all need to get the same story, we need to . . . have an explanation for why [Co-defendant McKenzie] took off his shirt and all this stuff.
And -- and anyways, so as I brought her in there, she was on the floor throwing up and I sat on my bed. My roommate was there. He kind of woke up a little bit. I mean I'm sure he saw me sitting on my bed. And she was on the floor and they just -- they turned her over and they were just messing with her and slapping her leg or slapping her butt and fingering her and s[**]t. And I don't -- honestly, I don't even know everybody -- who was [there] because at one point they turned off the light. And after that, they're all laughing about it and -- I don't know if they had sex with her or not. I couldn't tell. I was pretty inebriated.
. . . .
And they were like, "You need to sleep -- you need to sleep in here with her and act like nothing happened and all this stuff. And at one point, like I know you guys saw like I -- I put the towel over the camera 'cause right before they left, I wanted them to help take her back to the room or something and that's when I called [Mr.] Boyd and [Mr. van der Wal] because I mean I knew something bad just really happened and it like -- I was just trying to bring her up to my room to put her in the bed and like I couldn't carry her myself and like -- just f[****]d up, man. Like I sat there and like saw it happening and I didn't tell them to stop, you know, but I d[**]n well didn't do anything. I didn't even touch the girl.
. . . .
I didn't know what to do. I -- you know, I was intoxicated. I mean obviously you see the camera footage. But I didn't do anything to stop it, and that's when I called [Mr. Boyd] and -- [Mr. Boyd] and [Mr. van der Wal] and they said they would be right up and that's when I told them. Like I told them everything that happened, that they did all this stuff and that I just needed help. And -- and they told me to sleep in . . . his room and we'll talk about it in the morning.
And I texted her in the morning. And all those guys talked to me the next day, the guys that did it. They're like, "You need to be quiet. You can't talk about this stuff. You need to have sex with her to like try to cover it up like whatever happened." And so the next day I had her come over. I don't know if she told you that or not. And we ended up having sex unprotected and that was that. And after they investigated us or they called us in. They told me I needed to get my story straight and say nothing happened. And they said that [Co-defendant McKenzie] took his shirt off because I threw water on him. And say that I covered up the camera because -- I don't even know why.
And I just feel -- I'm just scared because . . . they're going to say that like I did something and it's like -- I know at least my roommate was there for a little bit but he was sleeping. But at least he saw that I was on the bed the whole time. I didn't even touch her. Like I have no reason to. She -- like we had sex the next day. . . . I don't have sex with a girl throwing up. That's disgusting.

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

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

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

         Investigator Felicia Evans worked for the MNPD as a crime scene investigator in the Crime Scene Investigation Unit at the time of the offenses. On June 27, 2013, Investigator Evans responded to Gillette Hall to assist Investigator Sharon Tilley. Investigator Tilley walked through the scene first with Detective Mayo, then with Investigator Evans. Investigator Tilley photographed the room; later, she and Investigator Evans marked items for collection of evidence. Investigators Evans and Tilley also performed a panoscan[6] of Room 213 and used an "alternative light source" to look for body fluids but did not find any. Investigator Evans photographed a "container" or "tub" near a desk that contained "vomitus-type material on the bottom of the tub." She also collected a scraping of the substance from the bottom of the container. Additionally, Investigators Evans and Tilley processed the room for latent prints and collected a green towel and a red and white towel. Investigator Evans testified that the red and white towel smelled strongly of urine. When Investigator Evans scanned the green towel with the alternative light source, the light indicated the presence of "bodily fluid or semen" near the edge of the towel. She also processed a condom box and loose condoms found in a drawer for latent prints. Further, Investigator Evans found latent prints on the interior side of the door. On cross-examination, Investigator Evans clarified that she collected two fingerprints on the condom box.

         Detective Chad Gish testified that he worked for the MNPD in the Surveillance and Investigative Support Unit of the Criminal Investigative Division. Defendant and the State stipulated that Detective Gish was an expert in digital forensics. Detective Gish explained that the Surveillance and Investigative Support Unit "work[ed] a lot of major crimes, especially crimes that have a digital aspect involved, such as cell phones, computers, video anything of that nature." In July 2013, Detective Mayo and Sergeant Shreeve asked Detective Gish to assist in digitally analyzing electronic devices they had seized while investigating the current offenses. Detective Gish requested Defendant's interview with Detective Mayo and Sergeant Shreeve at the VPD administrative office as well as the surveillance video from Gillette Hall. With these items of evidence, Detective Gish created a timeline of the offenses. Next, Detective Gish connected the electronic devices that MNPD had seized to "a forensic piece of software[] to extract the data from that telephone." Detective Gish was unable to recover any deleted photographs or videos from Defendant's iPhone, but he found other evidence that the phone had previously held photographs or videos related to the offenses, such as "references to 'rape' in iMessages" and "numerous, numerous[] calls" during the timeframe of the offenses. Detective Gish also observed that "[t]he content of the messages seemed to be that whoever was responding to these messages had seen a video[] or a picture." Additionally, Detective Gish "saw references in the recovered text message of this timeframe[] . . . to Facetime."[7]Detective Gish also examined the search history of Defendant's iPhone and found that a user had searched Google on June 26, 2013 for the following phrase: "Can police retrieve deleted picture messages." After the Google search engine provided the user with a list of websites that met the search criteria, the user went to a website that discussed "police mine deleted texts from your cell phone[.]" The user also searched on The Student Room web server for the following phrase: "Police Power/capabilities on Recovering Deleted Messages from a Sams[u]ng phone." Detective Gish continued to examine Defendant's iPhone and found "a lot of missing images that had been deleted" from Defendant's phone during the timeframe of the offenses. Further, Detective Gish examined a "thumbnail database"[8] on Defendant's iPhone and "recovered images from this thumbnail database[] that were taken in the timeframe of 2:38 to 3:10 in the morning, inside the room with the victim" from the day that the offenses occurred. Detective Gish was able to recover "nine images that were taken from [Defendant's cell phone out of the thumbnails"; the thumbnails were from photographs or still images of videos. Detective Gish testified that the thumbnails depicted the following, in pertinent part:

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

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

• E.L. lying in Defendant's dorm room with her skirt pulled up, her underwear removed, and her top pulled up;
• E.L. lying on her back with her bra pulled up or removed to expose her breasts;
• E.L. lying on her back while Co-defendant Banks spreads her labia open and takes a photograph of her vagina;
• E.L. lying in Defendant's dorm room with her underwear removed and her skirt removed or pulled up so that her lower body is exposed. Her buttocks appeared red;
• E.L. lying on her stomach in Defendant's dorm room while Co-defendant Batey spread her buttocks open to expose her anus and labia;
• E.L. lying in the hallway of the second floor of Gillette Hall with her underwear removed, her skirt pulled up, and her buttocks appeared red;
• Close-up photographs of E.L.'s genitals and anus.

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

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

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

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

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

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

MR. FINLEY: UR gunna get in trouble
MR. FINLEY: Delete that s[**]t
MR. FINLEY: Lol
MR. QUINZIO: Yeah Brandon you a dumbass.
MR. FINLEY: Get out of there
MR. FINLEY: She could call rape so done.
MR. FINLEY: Soon
MR. FINLEY: Delete that s[**]t
MR. QUINZIO: Seriously!
. . . .
MR. FINLEY: Dog kick that b[***]h out or gangbang her
MR. FINLEY: Don't let her wake up
MR. QUINZIO: Raping girls at vandy
DEFENDANT: U gotta delete this text

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

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

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

Call recipient

Time

Length

Joseph Quinzio

2:48 a.m.

None

Miles Finley

2:52 a.m.

2:53 a.m.

3:08 a.m.

0:10

0:05

0:02

Chris Boyd

3:14 a.m.

2:31

Austyn Carta-Samuels

3:17 a.m.

0:03

Miles Finley

3:18 a.m.

0:03

Austyn Carta-Samuels

3:19 a.m.

None

Dillon van der Wal

3:19 a.m.

3:19 a.m.

None

0:01

Joseph Quinzio

3:36 a.m.

0:33

Chris Boyd

4:01 a.m.

0:03

Corey Batey

4:13 a.m.

0:01

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

Direction

Date/Time

Length

Missed

June 23 1:54 p.m.

None

Missed

June 25 11:44 p.m.

None

Outgoing

June 25 11:45 p.m.

1:21

Missed

June 25 11:50 p.m.

None

Outgoing

June 25 11:51 p.m.

None

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June 26 4:42 p.m.

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June 26 4:47 p.m.

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June 26 4:54 p.m.

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June 26 9:51 p.m.

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June 26 9:52 p.m.

1:40

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June 26 9:57 p.m.

0:02

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June 26 9:57 p.m.

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June 26 11:13 p.m.

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June 26 11:35 p.m.

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June 26 11:36 p.m.

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June 27 10:00 a.m.

2:24

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

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

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

DEFENDANT: I'm coming
DEFENDANT: My phones at 1%
DEFENDANT: Meet me outside the [e]mergency door at east
MR. BOYD: Come get us
DEFENDANT: Ok I'm leaving now my phones gunna charge in my room
MR. BOYD: I'm at Gillette
DEFENDANT: I'll come out from of Gillette
MR. BOYD: Hurry
MR. BOYD: DDR hurry

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

E.L.: Are you okay? I'm worried.
DEFENDANT: No I'm not:(this is all so messed up like I didn't do anything and I feel like I'm getting blamed for stuff that didn't even happen. I just wanna cry
E.L.: That's f[**]ked up. Want to come to the pool and talk about it???
DEFENDANT: Me and a bunch of teammates are probably going to get kicked off the team unless something changes
DEFENDANT: Not tonight, tomorrow can we?
E.L.: Definitely. Are you sure not tonight? If you tell me what happened I might be able to help
E.L.: I don't want anyone to get into trouble because of me
E.L.: It's going to be okay!
DEFENDANT: Maybe I'll call you later
E.L.: I'll do everything I can to clear your name
DEFENDANT: I heard jakes spreading rumors and stuff idk y
E.L.: Seriously?
DEFENDANT: Idk it's all rumors but this stuff is so whack I would never do anything like that
. . . .
E.L.: I just got contacted by vanderbilt women's center wanting me to come in so they can help me but I asked someone from student conduct to come too so I can try to clear this up
DEFENDANT: Ok great this is such a mess, I'm never helping anyone get home ever
DEFENDANT: Next time just not gunna care lol. I feel like I'm getting punished for taking care of u that night. .
E.L.: You were just trying to help me I'll tell them that.
E.L.: I understand why you're upset. I'm trying my best to make it right
E.L.: You should be!
DEFENDANT: I'm just frustrated
E.L.: I'll take care of it.
. . . .
E.L.: They're going to show me the video
E.L.: So that should help
DEFENDANT: Ok cool
. . . .
DEFENDANT: What happened today
E.L.: I don't really know much more than you do
DEFENDANT: I thought u said u talked to everyone today and watched the video?
E.L.: Yeah I didn't end up seeing it and they didn't really tell me anything
DEFENDANT: That's weird cuz [sic] they said u watched it this afternoon
E.L.: They wouldn't tell me anything I was so confused
DEFENDANT: Hmm that's weird well I was told I wasn't supposed to talk to u till all this is over…:(
E.L.: Yeah me either
DEFENDANT: Alright then I guess we can't talk right now…I wuld [sic] never let what they're saying happen to you that's messed up
DEFENDANT: I'm so upset right now

. . . .

E.L.: Why did y'all cover up the cameras
E.L.: I'm just so confused right now

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

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

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

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

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

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

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

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

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

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

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

         On cross-examination, Special Agent Castelbuono stated that she found a few sperm cells on E.L.'s panties that could have been from an old sperm stain or transferred from another surface. Special Agent Castelbuono did not find enough male DNA from this item to confirm an identity.

         Mr. van der Wal testified that in June 2013, he lived in East Hall on the Vanderbilt University campus. Mr. van der Wal stated that early in the morning on June 23, 2013, Mr. Boyd received a phone call; based on that phone call, Mr. Boyd and Mr. van der Wal walked to Gillette Hall with Mr. Retta. Mr. Woods met the three men at Gillette Hall. As he entered the second floor of Gillette Hall, Mr. van der Wal observed "a female on the ground with her dress above her midriff area. She was laying [sic] face down and there were handprints on her . . . butt." The female, E.L., was nude from the waist down. Mr. van der Wal also observed a towel draped over the security camera in the hallway. He stated that, after he arrived, Defendant, Mr. Boyd, and Mr. Woods carried E.L. into Defendant's dorm room and put her in Defendant's bed. As Mr. van der Wal entered Defendant's dorm room, Mr. Prioleau got out of the upper bunk bed and left the room. Mr. van der Wal stated that, after he left Defendant's dorm room, he was "standing in the hallway for a second and there was a video being shown." Mr. van der Wal then returned to East Hall with Defendant, Mr. Boyd, and Mr. Retta.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Count [o]ne of the [i]ndictment alleges an act of aggravated rape against [E.L.] and refers to the following conduct: [Co-defendant] Banks penetrating the anus of [E.L.] with an object while [E.L.] was unconscious on the floor of the dorm room located in Gillette Hall on Vanderbilt University campus.
Count [t]wo of the [i]ndictment alleges an act of aggravated rape against [E.L.], and refers to the following conduct: the digital penetration of [E.L.]'s vagina by [Co-defendant] Batey while [E.L.] was unconscious on the floor of the dorm room located in Gillette Hall on Vanderbilt University campus.
Count [t]hree of the [i]ndictment alleges an act of aggravated rape against [E.L.], and refers to the following conduct: the digital penetration of [E.L.]'s anus by [Co-defendant] Batey while [E.L.] was unconscious on the floor of the dorm room located in Gillette Hall on Vanderbilt University campus.
Count [f]our of the [i]ndictment alleges an act of aggravated rape against [E.L.], and refers to the following conduct: an act of fellatio upon [E.L.]'s mouth or lips by [Co-defendant] Batey while [E.L.] was unconscious on the floor of the dorm room located in Gillette Hall on Vanderbilt University campus.
Count [f]ive of the [i]ndictment alleges an act of aggravated rape against [E.L.], and refers to the following conduct: the penile penetration of [E.L.]'s vagina by [Co-defendant] Batey while [E.L.] was unconscious on the floor of the dorm room located in Gillette Hall on Vanderbilt University campus.
Count [s]ix of the [i]ndictment alleges an act of aggravated sexual battery against [E.L.], and refers to the following conduct: the touching of the primary genital area of [E.L.] by [Co-defendant] Banks while [E.L.] was unconscious on the floor of the dorm room located in Gillette Hall on Vanderbilt University campus.
Count [s]even of the [i]ndictment alleges an act of aggravated sexual battery against [E.L.], and refers to the following conduct: [Co-defendant] Batey placing his buttocks on [E.L.]'s face while [E.L.] was unconscious on the floor of the dorm room located in Gillette Hall on Vanderbilt University campus.

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

         Sentencing hearing

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

I had intended to give a detailed Victim Impact Statement at today's sentencing hearing specific to the effects of [Defendant]'s actions. As a result of the last sentencing hearing in this case, that is no longer something I'm able to do. I ask that my prior statement be referenced. Also, two professionals who have helped me through this and witnessed the impact on me have submitted letters to you describing what they have seen; and I ask that you consider those.
Please do not use my absence as an excuse for leniency as it in no way diminishes the profound and insidious impact of [Defendant] on me and my life. I still ask that he receive the full sentence allowed under the law for orchestrating a sustained thirty-minute gang rape against me, a defenseless woman who trusted him. The minimum sentence is not enough for what this man did to me.
E.L.'s prior victim impact statement set out the following:
It's hard for me to stand here on display and speak to you today about the impact this has had on my life. The thought of sharing any more

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

I was fearful of giving a victim impact statement at all because I know that after three years and everything that has happened, I can never do it justice, and I'm scared of that failure. It will never be possible for anyone to put into words how this has affected me. You will never understand what this has done to me if you aren't standing in my shoes. The humiliation, the pain, the isolation, being reduced to nothing but a piece of flesh right before your eyes, it does something to you that is truly impossible to describe.
I also know that it's hard to encapsulate the impact this has had because it is still ongoing. The attack on me didn't end that day because I relive it in every proceeding and experience additional attacks every time I am in court.
When I let myself think of this[, ] I become so angry and feel so powerless, even today, that speaking coherently about it at all is a challenge.
There are no words to describe the horror of those images from that night and how it feels to watch yourself be dehumanized.
A detective showed me some of those photos and videos that you and forty-two jurors have now seen so many times, and what I saw was image after image of my genitalia covering the entire frame on the screen. These stark, alien-looking fingers all over the flesh were moving from frame to frame, with multiple hands reaching in. Videos played, and I heard the laughing. I heard the degrading, taunting voices.
My memory of the images I was shown then starts to flash in and out. The realization of all the different ways that they raped me, that people can see these close up pictures of my body, the unknown of what was done to me in those thirty minutes that wasn't recorded-it was incomprehensible. I wanted to run away and never stop running.
At one point[, ] I saw what I first thought was a dead woman's face. I was suddenly overwhelmed by my memory of a family member's corpse, and then I realized that it's me. They had taken a picture of my face during the attack. I was lifeless and my face was covered in something shiny. I didn't recognize myself.
Something permanent snapped that day. I felt myself detach from my body. Now, I feel like I'm walking around in the shell of someone else. A part of me went numb, a sense of being a whole person with hopes and dreams about what's possible in the world was now gone.
I was twenty-one years old when this happened. I'm twenty-four today. Since the horror of that night, all I have wanted is for this to be behind me, to be left alone and try to live my life in peace, but the process to get justice has been a never-ending, constant misery that has twisted itself so into my life that I can't even remember what it was like in a time when this wasn't happening. Everything . . . [D]efendant has done in this case and the media circus surrounding it have been a continuous disruption repeatedly dragging me back every step I try to take forward. I can only feel that . . . [D]efendant has intentionally wanted this to be as tortuous for me as possible.
What happened to me that night has been compounded by the live-streaming, tweeting, and international dissemination of every detail of how I was degraded and humiliated for all posterity. In this age of technology, anyone I ever meet in my personal or professional life can learn I am a rape victim and the details of the case before I've even fully introduced myself to them. There is no way for me to even know if any given person I interact with has done so. This is something I now have to expect for the rest of my life.
Again, the attack on me didn't end that day because I have to relive it in every proceeding and am constantly experiencing additional attacks. The fact that I even had to breathe the same air as the men who did this to me ever again . . . is unthinkable. But, I have endured all of this because the details of the rape are so horrific, and there is so much irrefutable evidence, I knew that they had to be stopped and held accountable.
This is a serious violent crime, and it must receive the enhanced punishment it deserves. Any victim should know they would have justice if they went through the process.

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

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

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

         Frank Gill testified that he met Defendant three years prior to the sentencing hearing when Mr. Gill volunteered in a prison ministry. Mr. Gill did not believe that Defendant would be a danger to the community after serving his sentence. Mr. Gill also testified that Defendant had "tremendous potential" for rehabilitation.

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

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

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

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

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

         II. Analysis

         (1) Denial of motion to dismiss superseding indictment

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

         The State responds that Defendant's second trial did not violate double jeopardy principles because double jeopardy does not preclude the retrial of Defendant. The State argues that the jeopardy from Defendant's first trial did not terminate when the trial court granted Defendant's motion for a new trial; essentially, the jeopardy from the first trial "continued" to the superseding indictment.[9] Additionally, the State contends that the issuance of the superseding indictment did not violate double jeopardy principles because "the superseding indictment was issued well before the second trial, giving . . . [D]efendant ample notice of the charges." Further, the State asserts that Defendant received adequate notice of the charges in the superseding indictment because it charged the same offenses as the initial indictment except for the omission of the destruction of evidence charge. The State argues that it properly exercised its discretion by obtaining a superseding indictment that clarified "that the aggravated rape and aggravated sexual battery charges were based on the incapacity of the victim."

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

THE GRAND JURORS of Davidson County, Tennessee, duly impaneled and sworn, upon their oath, present that:
BRANDON E. BANKS, CORY LAMONT BATEY, [Defendant], and JABORIAN DASHON MCKENZIE between the 22nd day of June, 2013, and the 23rd day of June, 2013, in Davidson County, Tennessee and before the finding of this indictment, did intentionally, knowingly, or recklessly engage in unlawful sexual penetration of [E.L.] and Brandon E. Banks, Cory Lamont Batey, [Defendant], and Jaborian Dashon McKenzie were aided or abetted by one or more other persons, in ...

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