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State v. Banks

Court of Criminal Appeals of Tennessee, Nashville

October 4, 2019


          Session March 20, 2019

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

         A Davidson County grand jury indicted the defendant, Brandon E. Banks, for five counts of aggravated rape and two counts of aggravated sexual battery. After trial, a jury convicted the defendant of one count of each offense. On appeal, the defendant challenges the trial court's denial of his motion to suppress evidence obtained from a warrantless search of his cell phone, the sufficiency of the evidence supporting his conviction for aggravated rape, and several of the trial court's evidentiary rulings. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

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

          Mark Scruggs, Katie Hagan, Richard McGee, and Kevin McGee, Nashville, Tennessee, for the appellant, Brandon Eric Banks.

          Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Assistant Attorney General; Glenn Funk, District Attorney General; and Roger Moore and Jan Norman, Assistant District Attorneys General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Timothy L. Easter, J., joined. Norma McGee Ogle, J., filed a separate opinion concurring in part and dissenting in part.


          J. ROSS DYER, JUDGE.

         Facts and Procedural History

         In the early morning hours of June 23, 2013, the defendant participated in the thirty-two-minute sexual assault of the victim as she lay unconscious on the floor of a dormitory room on the campus of Vanderbilt University. A Davidson County grand jury indicted the defendant and his three co-defendants, Brandon Vandenburg, Corey Batey, and JaBorian McKenzie, for five counts of aggravated rape (counts 1-5) and two counts of aggravated sexual battery (counts 6 and 7).[1] The trial court granted severance to the defendant on October 16, 2013, and subsequently addressed numerous pre-trial motions before trial began on June 19, 2017.

         I. Motion to Suppress

         The defendant filed a motion to suppress "all images and media contained on his cell phone." According to the defendant, officers seized his cell phone on June 27, 2013, after an initial interview. The following day, officers executed a search warrant for electronic devices found in the defendant's dorm room or on his person. Because the cell phone was not in either location during the search, the defendant argued the search warrant was inapplicable to the same. The defendant presented the following evidence supporting his position at a suppression hearing.

         On June 27, 2013, Detective Jason Mayo of the Metropolitan Nashville Police Department ("MNPD") interviewed the defendant regarding his participation in the crimes committed against the victim. Detective Mayo told the defendant he was not under arrest and that he could leave the interview at any time. The defendant detailed a version of events with which Detective Mayo disagreed based upon his review of surveillance footage and a prior interview with Vandenburg, during which he learned the crimes were videoed and distributed. At the conclusion of the interview, the defendant refused to provide a DNA sample. Detective Mayo told the defendant he was no longer free to leave and stated he would obtain a search warrant in order to gather a DNA sample. The defendant reconsidered, signed a consent form, and provided the sample. Additionally, Detective Mayo seized the defendant's cell phone, an Apple iPhone 4S with serial number DNPGQ4BCD2C1. The defendant did not provide consent to search the phone.

         The following day, June 28, 2013, Detective Mayo executed numerous search warrants against the defendant and his co-defendants. One such warrant permitted the search and seizure of the defendant's electronic devices found either on his person or in his dorm room, Room 614 of Gillette Hall located on the campus of Vanderbilt University. The search rendered the following items: "HP laptop s/n: CNF0461WL2; Samsung Laptop s/n HPX791KC300675A; flip video camera; Microsoft thumb drive; DVD (10); 4GB thumb drive." A copy of the search warrant was entered into evidence.

         At the suppression hearing, Detective Mayo testified the search warrant did not actually cover the defendant's cell phone as it was not in the defendant's dorm room or on his person during the execution of the warrant. However, at the time of the execution of the warrant, Detective Mayo believed it did authorize a search of the defendant's cell phone. Therefore, Detective Mayo asked the defendant for the "[passcode] for his phone" in order to "open it and search it." He did not specifically discuss consent to search the cell phone with the defendant.

         As the investigation progressed, the defendant hired counsel with whom Detective Mayo began communicating. He described one conversation with the defendant's former counsel, [2] as follows:

I spoke to [former counsel] and told him that the phone that his client had provided did not work. I asked him . . . The [passcode] to the phone did not work. I asked him if he would reach back out to [the defendant] and get the correct pass code. We then spoke again, and I believe he gave me two different [passcodes]. He said somewhere, somewhat of the conversation was he said, referring to [the defendant], it's one of these two codes, and gave me those two [passcodes].

         According to Detective Mayo, former counsel "knew that there was a search warrant" for the defendant's cell phone when he requested the passcode for the same. Detective Mayo believed the request for the passcode operated as an indirect discussion of the defendant's consent to search the phone as it was understood the passcode would be used "to unlock that specific phone."

         Detective Mayo, however, "never did obtain the correct [passcode]." He explained one of the provided passcodes "was tried and did not work, and there was a fear that if you enter too many wrong codes too many times into a phone, it will completely lock. So, after the first code was attempted and failed, I don't believe the second code was attempted." Instead, Detective Chad Gish, who was also investigating the case, bypassed the passcode security feature and searched the defendant's cell phone through other means.

         Former counsel also testified, stating the defendant retained him in July of 2013 before formal charges were filed but after detectives conducted an initial interview with the defendant, obtained a DNA sample from the defendant, and executed a search warrant against the defendant. He "distinctly remember[ed]" the conversation regarding Detective Mayo's request for the passcode to the defendant's cell phone. According to former counsel, Detective Mayo called him requesting the passcode to the cell phone because "he'd had trouble getting into [the defendant's] phone." Former counsel "specifically" recalled Detective Mayo stating he had "a search warrant for the phone" but he "just need[ed] the codes." Former counsel contacted the defendant and subsequently provided two passcodes to Detective Mayo. Former counsel explained, "[h]ad [Detective Mayo] not told me that there was a search warrant for the phone, I wouldn't have given him the numbers." Former counsel did not know if the passcodes provided actually unlocked the defendant's cell phone.

         At the conclusion of the proof, the defendant entered into evidence a stipulation from Detective Gish's reports establishing that the passcodes provided did not unlock the defendant's cell phone. After its review, the trial court denied the defendant's motion to suppress the evidence obtained from the search of his cell phone. The defendant then proceeded to trial.

         II. Trial

         The evidence produced at trial showed at 2:38 a.m. on June 23, 2013, the defendant, Vandenburg, Batey, and McKenzie entered Room 213 of Gillette Hall with the unconscious victim. For the next thirty-two minutes, the four men committed numerous sexual crimes against the victim. The State presented forty-two thumbnail images and three videos depicting the defendants' sexual crimes. The images, which were recovered from numerous cell phones and computers, explicitly show the defendant's participation in the sexual abuse of the victim. One thumbnail image shows the defendant touching the victim's vagina. In a separate video, the defendant is seen squeezing a water bottle that has been inserted into the victim's anus.

         Prior to entering Room 213, the victim and Vandenburg were seen together at Tin Roof, a bar in Nashville, Tennessee, by the victim's friends, Lauren Miller and Julianna Martel. At the bar, Ms. Miller described Vandenburg as "extremely excited to see the victim, and [he] immediately came up to her and handed her a drink and just seemed like very energetic and enthusiastic." At approximately 1:30 a.m., Ms. Martel saw the victim holding "a blue drink." She did not "notice anything out of the ordinary," stating the victim seemed "[c]ompletely normal." Less than an hour later, however, surveillance footage captured Vandenburg carrying the unconscious victim towards Gillette Hall along with Batey, McKenzie, and the defendant. This surveillance footage prompted an investigation by Captain Donnie Harville of the Vanderbilt University Police Department ("VUPD").

         Initially, the Vanderbilt University Housing Authority informed Captain Harville that "four individuals" were seen "carrying an unconscious female" into Gillette Hall on June 23, 2013. Captain Harville reviewed surveillance footage from Gillette Hall and saw "four individuals, who we identified later as students, carrying an unconscious female into the dorm rooms." The Associate Dean of Students of Vanderbilt University, Gerald Black, aided in identifying the students seen on the surveillance footage. At the time, Mr. Black served as an assistant dean and director of student contact for Vanderbilt University. On Monday, June 24, 2013, he received an email from the Housing and Residential Education Office containing "several video clips" depicting "four males carrying a woman in one of [the] residence halls on campus." According to Mr. Black, the Access and Security Team pulled additional surveillance footage in an effort to identify the four males and the woman seen in the video clips. Once the team determined "a few of the parties" were student athletes, Mr. Black met with representatives from the Department of Athletics, who identified nine students as seen on the surveillance footage: Chris Boyd, Dillon Van der Wal, Jacob Bernstein, Deandre Woods, Mack Prioleau, Brandon Vandenburg, Corey Batey, JaBorian McKenzie, and the defendant. The victim was not initially identified.

         On June 25, 2013, Mr. Black and his staff conducted recorded, "preliminary meetings" with the nine students who "came over together as a group after they . . . concluded their athletic activities for the afternoon." Mr. Black prefaced the meetings by stating "there were some concerns raised about the evening of the 22nd, into the morning hours of the 23rd, and that [they] wanted to ask them some questions about their whereabouts and what they might know about other students' whereabouts and things like that."

         Regarding the evening in question, the defendant told Mr. Black he saw Vandenburg drive in front of Gillette Hall with the victim as he returned to the dormitory after picking up food. The victim was "slumped over" in the car and looked sick. The defendant did not know if the victim's sickness was alcohol-related and admitted he did not consider getting medical help for her. The defendant, Batey, and McKenzie helped Vandenburg take the victim to Vandenburg's dorm room, noting she threw up in the elevator on the way. Once inside the room, they placed the victim on the floor, the defendant put a towel by her mouth, and she appeared to go to sleep. The defendant, Vandenburg, Batey, and McKenzie remained in the room and were "basically chillin' and stuff like that." At one point, Vandenburg "chucked" water on the defendant's shirt so the defendant took it off. The defendant stated Mr. Prioleau, Vandenburg's roommate, who was also asleep in the room, woke up and asked what the group was doing. They responded, "[n]othing, but chillin, '" and Mr. Prioleau went back to sleep.

         The defendant denied taking pictures or videos of the victim and denied physically touching her with his hands, mouth, or genitals. The defendant further stated no one in the room touched the victim inappropriately, moved her clothing to expose her genitals, had any type of intercourse with her, or took pictures or videos of her. The defendant denied seeing images or videos of Batey or McKenzie having sex with the victim but remembered Vandenburg covering the camera in the hallway with a towel. The defendant stated he left the room after he refused to move the victim from it. The defendant also prepared a written statement reflecting the same.

         Over the next several weeks, Captain Harville continued to compile relevant surveillance footage from across the Vanderbilt University campus, which he downloaded from the NICE video system, [3] placed into evidence, and provided to the MNPD. Captain Harville stated, "once we saw the video of them carrying an unconscious female into that room and then coming out of that room, what we did is we contacted Metro Police Sex Crimes Unit and asked them to come in and take over the investigation." In response, on June 26, 2013, Detective Mayo met with Captain Harville and viewed "a few still images from surveillance video printed out on just pieces of paper." The images showed "several young men that were carrying a female who, at that time . . . appeared to be unconscious or incapacitated in some way through a hallway." Detective Mayo spoke with the victim, who identified herself in four or five still images but was unable to provide specific details about what occurred in the room. She did, however, provide Detective Mayo with the clothing she wore on June 23, 2013, including a skirt, a shirt, two pairs of underwear, and a bra, all of which were entered into evidence at trial.

         Despite not knowing if a sexual assault occurred, Detective Mayo asked the victim to "consent to having a medical legal exam, sexual assault evidence collection kit completed." The victim agreed and submitted to the exam at the emergency department of the Vanderbilt University Medical Center. Detective Mayo waited in the emergency room until the examination was completed. He collected the rape kit and turned it into the MNPD evidence property room. The rape kit was entered into evidence at trial.

         Agent Charly Castelbuono, a DNA forensics expert with the Tennessee Bureau of Investigation ("TBI"), analyzed the victim's rape kit, which included buccal swabs, vaginal swabs, labial swabs, oral swabs, a rectal swab, and a perianal swab. Her examination revealed a "limited amount of spermatozoa," or sperm cells, present in the vaginal swabs. Agent Castelbuono explained "[t]he major contributor is consistent with the victim's, and the limited minor contributor is consistent with . . . Brandon Vandenburg." She excluded Batey, McKenzie, and the defendant as contributors. Examinations of the vaginal, labial, rectal, perianal, and oral swabs did not reveal the presence of semen, and alpha amylase, a component of saliva, was not found in the labial swabs.

         Agent Castelbuono also analyzed the victim's clothing. The victim's shirt and skirt "did not indicate the presence of semen." Two pairs of the victim's underwear indicated "a limited amount of spermatozoa." The DNA profile obtained from the victim's bra was "consistent with a mixture of at least three individuals," including the victim as the major contributor "and the limited minor contributor profile is from at least one male individual."

         Detective Mayo continued his investigation on June 27, 2013, by interviewing the defendant, Vandenburg, Batey, and McKenzie, none of whom were charged with a crime or in custody at the time. The defendant's interview was recorded and played for the jury at trial. In the interview, the defendant denied seeing or participating in the sexual attack of the victim in Room 213. At the conclusion of the interview, Detective Mayo collected a DNA sample from the defendant and seized the defendant's cell phone. Detective Mayo explained the cell phone "was taken and turned into our evidence collection section, later retrieved, and later given, with a search warrant, to Detective Gish."

         Additionally, on June 27, 2013, Detective Mayo searched Room 213 after obtaining consent from Vandenburg and Mr. Prioleau. At the time, Detective Mayo had not seen any videos or images captured on any of the cell phones pertinent to the investigation. Crime scene investigators, Felicia Evans and Sharon Tilley, photographed and processed the room. At trial, Ms. Evans explained the "call" to process Room 213 "was a little bit different from a typical crime scene that we would respond to in that it occurred several days prior to us being called out, and we were requested by a sex abuse detective to assist in the execution of a search warrant." Like Detective Mayo, Ms. Evans did not know exactly what crimes were committed in the room as she conducted the search.

         At trial, Ms. Evans identified the layout of Room 213 through eleven photographs taken from the crime scene, including a panoscan of the scene. She explained a panoscan and its accompanying software allows investigators to create "a 360 degree flat image" of a crime scene and "allows you to embed additional photographs as links throughout the scan." Using a panoscan image taken from the front and back of Room 213, Ms. Evans identified the entry of Room 213, the interior of Room 213, the exterior door to Room 213, a fire evacuation safety plan of Gillette Hall, and the hallways and restroom outside of Room 213.

         In conducting the search, Ms. Evans noted she smelled urine immediately upon entering Room 213. As a result, she "used an alternate light source to look for any types of bodily fluid that may be present" on "the floors, the walls, the ceiling, the bedding, clothing and towels located within the room." Ms. Evans "also noticed that the room was very disheveled and cluttered. But it appeared that all of the clutter had been moved away and there was a large clean uncluttered area on the floor." She swabbed the "large clean uncluttered area" for bodily fluids.

         Ms. Evans photographed a white towel and a light green towel hanging on a hook before scanning them with an alternative light source. Both towels were entered into evidence at trial. In reviewing another photograph, Ms. Evans described a "fan . . . located on top of a plastic tub that had apparent throw-up or vomit type material dried on the side of the tub. That material was photographed and then it was collected." Two additional towels, one green and one red and white, were found on top of a large pile of garbage near the front door of the room. Ms. Evans scanned both towels with the alternative light source, noting "there was a small portion on the light green towel that fluoresced" and "[t]he red and white towel smelled heavily of urine." Both towels were entered into evidence at trial.

         Agent Castelbuono examined the items collected from Room 213, including:

There were swabs from the floor in front of the closet at 1900 South Drive, Room 213. There was crusty material from the tub on the floor beside the closet at 1900 South Drive, Room 213. There was a comforter from the lower bed, a brown fitted sheet from the lower bed, a white mattress cover from the lower bed, a pillow case and two pillow covers also from the lower bed, all from 1900 South Drive, Room 213.

         She found the victim's DNA in the "crusty material." DNA obtained from spermatozoa found on the brown fitted sheet contained a mixture of DNA from the victim and Vandenburg. Vandenburg's DNA was also located on the green towel found near the door of Room 213, and another stain on the green towel included DNA from Vandenburg and an undetermined individual. Agent Castelbuono did not find semen on the red and white towel. The green towel from the hook on the wall indicated spermatozoa of a major contributor of an unknown male while a second stain on the green towel matched Vandenburg. The white towel from the hook on the wall did not indicate the presence of semen. The defendant's DNA was not found on any of the items tested.

         Ms. Evans also processed a dresser, a condom box, and "a loose condom" found within the dresser for latent prints. From the condom box, Ms. Evans developed two latent prints. She also developed two latent prints from the door and the interior doorknob of Room 213. The latent prints were entered into evidence at trial. Julia Hooper, an expert in fingerprint identification and analysis, examined the latent prints lifted by Ms. Evans. She completed a report of her findings which was entered into evidence. In the report, Ms. Hooper noted McKenzie's left thumb and the defendant's right thumb were lifted from the condom box.

         On June 28, 2013, Detective Mayo "wrote numerous search warrants to collect more digital evidence." He also returned to Room 213 to focus the investigation on the "bottom bunk area" occupied by Vandenburg. Photographs of the bottom bunk area showed Vandenburg's Apple laptop computer sitting on a chair. The laptop was seized pursuant to a search warrant. Detective Mayo executed search warrants on Room 614 of Gillette Hall, occupied by the defendant and McKenzie, from which he collected a Samsung laptop and a HP laptop. Detective Mayo also searched Batey's room on the 6thfloor of Gillette Hall where he took a photograph of a white watch, noting he saw Batey wearing the watch "[i]n surveillance video and photographs." Additional evidence collected during the pending investigation and as identified by Detective Mayo at trial included the cell phones of Vandenburg, Batey, McKenzie, and Mr. Boyd and DNA swabs from Mr. Woods, Mr. Boyd, Mr. Van der Wal, Mr. Retta, Mr. Prioleau, Batey, McKenzie, and Vandenburg.

         Detective Mayo provided Detective Gish with cell phones, computers, and surveillance footage collected during the investigation. At trial, Detective Gish testified as an expert in "computer forensics analysis, mobile device analysis, as well as the analysis of those digital images and criminal investigations."[4] Detective Gish began his investigation by attempting to establish a time line of the events of June 23, 2013. He reviewed surveillance footage which showed Vandenburg park in front of Gillette Hall "around 2:27 or 2:28 in the morning." At approximately 2:35 a.m., surveillance footage showed the defendant and Vandenburg "dr[ag] [the victim] out of an elevator and drop[] her on the ground. And right after that, these two individuals started taking either pictures and or videos with their cellphones." Detective Gish explained the surveillance footage at 2:35 a.m. "was a clue that there may be evidence of at least improper photography on these telephones." He stated:

I started studying the video and saw where these four individuals went into this dorm room at 2:38 in the morning and nobody came out of the dorm room until 3:10. So, of course, now I'm looking at two different things. First, I'm looking at to see if I can recover images or videos at 2:35 where it appears that these individuals are taking pictures of this woman. And, second, would there be any information on this phone to tell me what happened inside that dorm room from 2:38 to 3:10, roughly twenty-eight minutes.

         Detective Gish next attempted to extract and analyze data from the cell phones of Vandenburg, Batey, McKenzie, and the defendant using the platforms Cellebrite and Oxygen. However, he failed to recover any images at 2:35 a.m. or between 2:38 a.m. and 3:10 a.m. from the cell phones of the defendant or Vandenburg. According to Detective Gish, the platforms could not recover any deleted images from the cell phones because the data was encrypted. Detective Gish then searched for "evidentiary artifacts," like the "miniature images" found within the thumbnail database of a cell phone. He explained "[e]ven though the images were deleted and they're encrypted and they can never be recovered, the good thing with computer forensics in these investigations are these artifacts are left behind." Specifically, the iPhone saves two copies, or thumbnails, of the images captured on the phone, a 158 x 158 image and a 120 x 120 landscape image. Detective Gish "recovered these two database files manually and then processed them manually to recover many of the images that had been deleted off of Vandenburg's phone." According to Detective Gish, the eleven images recovered from Vandenburg's cell phone "appeared to be a sexual assault."

         Detective Gish next determined when the images recovered from Vandenburg's cell phone were taken through EXIF data, or exchangeable image format data. He explained, however, that EXIF data is not created when thumbnails are created. Instead, Detective Gish looked to the last allocated, or available, image taken before the incident and the first allocated image taken after the incident to determine the file numbers of the missing images. In doing so, Detective Gish discovered "an image sequence gap between images 1391 and 1408" and determined the deleted images "fell within the time frame of the sexual assault."

         In analyzing Vandenburg's cell phone further, Detective Gish determined Vandenburg made four phone calls and sent "text messages that referenced a sexual assault" as the crimes ensued. A call log generated from Vandenburg's cell phone was entered into evidence. Detective Gish also reviewed a "time line report" of Vandenburg's cell phone, which detailed the actions taken on the cell phone between the evening of June 22, 2013, and the afternoon of June 23, 2013. A two-page portion of the time line report was entered into evidence.[5] In analyzing Vandenburg's laptop computer, Detective Gish learned Vandenburg "had accessed pornography sites" between 2:38 a.m. and 3:10 a.m. The State entered a list of the accessed web sites into evidence.

         Detective Gish also determined Vandenburg sent "either images or videos" related to the sexual assault to two friends living in California, Joey Quinzio and Miles Finley. Detective Gish interviewed Mr. Quinzio and Mr. Finley and executed search warrants against them. Though Detective Gish did not recover any evidence from their cell phones, he did recover evidence from Mr. Quinzio's computer. Specifically, a text message conversation between Vandenburg and Mr. Quinzio was recovered from Mr. Quinzio's laptop "in its entirety." Vandenburg also sent two videos of the assault to Mr. Finley and Mr. Quinzio at 2:36 a.m. and 2:40 a.m. Vandenburg sent a third video at 2:49 a.m. to Mr. Finley, Mr. Quinzio, Mr. Boyd, and Mr. Carta-Samuels. Screen shots of the text messages recovered from Mr. Quinzio's laptop with the content redacted were entered into evidence along with a CD containing the three videos recovered from Mr. Quinzio's computer. The State published the three videos to the jury, which included a thirteen-second video taken at 2:35:15 a.m., a six-second video taken at 2:40:10 a.m., and a forty-two-second video taken at 2:40:50 a.m.

         Detective Gish also analyzed the victim's cell phone. He created an "Event Log Report showing the activity of the victim's phone, married down to the time of the incident." On June 23, 2013, there was no activity on the victim's cell phone until 7:54 a.m.

         Detective Gish then detailed his search of the defendant's cell phone. After several of the passcodes provided by the defendant did not unlock the phone, Detective Gish bypassed the passcode protections by utilizing the lockdown file, or a security file that "marries" a cell phone and a computer together, from the defendant's computer. After doing so, Detective Gish analyzed the thumbnail database files from the defendant's cell phone and similarly discovered an image sequence gap from which he ultimately recovered twenty-three thumbnail images. Detective Gish searched the cell phones of Batey and McKenzie in the same manner. He recovered eight images of the sexual crimes from Batey's cell phone, but he did not recover any images from McKenzie's cell phone.

         In total, Detective Gish recovered forty-two images and three videos from the cell phones and computers searched during the investigation. At trial, Detective Gish detailed what the images appeared to show in relation to the sexual crimes committed against the victim. The defendant objected to Detective Gish's narration of the same, but the trial court allowed his testimony. Specifically, as it relates to the defendant, Detective Gish identified three pictures taken from various angles on the defendant's cell phone that appeared to show the defendant's "hand pulling the victim's vagina apart." Detective Gish described the defendant's actions as seen in another picture recovered from Batey's cell phone, as follows:

But we see that [the defendant] has his left thumb in [the victim's] vagina, pulling her vagina apart, and we see that bracelet that we've seen [the defendant] in, or that I have seen [the defendant] wear, on the left, on his left arm, his left wrist. He's also lighter skinned than [] Batey, and that appears to be his arm. And we also see that that's [the defendant's] phone in his right hand and he appears to be taking one of those images that we saw off of his phone earlier.

         From Vandenburg's cell phone, Detective Gish identified a forty-two-second video clip showing a water bottle that appeared "to be inserted into [the victim's] anus."

         McKenzie also testified concerning the images recovered by Detective Gish and provided his version of events leading up to and including the sexual assault of the victim. In June of 2013, he was eighteen years old and entering his sophomore year at Vanderbilt University, where he had been a member of the football team for one year. Prior to June 22, 2013, McKenzie had not met Vandenburg, but knew he was "a big recruit" for the football team. McKenzie's best friends were Batey and the defendant.

         On the evening of June 22, 2013, McKenzie had "a few drinks" in his dorm room with Batey and the defendant. The trio then went to a "small gathering" at East Hall, another dormitory on campus, before eventually returning to Gillette Hall and going to their respective dorm rooms. Later, McKenzie and the defendant left their dorm room to get food at Qdoba. When they returned, they saw Vandenburg parked in front of Gillette Hall with the victim in the car.

         Vandenburg told McKenzie and the defendant that "he [had] someone in the car and he need[ed] help getting up to the room." Vandenburg was "loud," and McKenzie "could tell he had been drinking." McKenzie saw the victim, whom he did not know, "passed out" in the car. He remembered Vandenburg stating "they had been to the Tin Roof. He got pretty drunk, she got pretty drunk, he couldn't get her back to her apartment and he had to bring her back [to Gillette Hall] and he needed help getting her to the room." McKenzie described Vandenburg as "kinda jacked, pumped, amped," but stated Vandenburg's request was made "[i]n a friendly way," and McKenzie did not feel like he had to help him. Batey joined the group outside of the dormitory before they entered Gillette Hall with the victim.

         McKenzie stated they were all "laughing" and "joking" on the way to Room 213. Vandenburg jokingly pushed Batey off the elevator and McKenzie stayed with him. The four men, however, reunited on the second floor where everyone "was still just having a good time, laughing, joking around, just like it was a[n] average night." The group then entered Room 213. McKenzie stated he did not feel pressured ...

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