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State v. Batey

Court of Criminal Appeals of Tennessee, Nashville

December 13, 2019

STATE OF TENNESSEE
v.
CORY LAMONT BATEY

          Session March 20, 2019

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

         A Davidson County Criminal Court Jury convicted the Appellant, Cory Lamont Batey, of one count of aggravated rape, a Class A felony; two counts of attempted aggravated rape, a Class B felony; one count of facilitation of aggravated rape, a Class B felony; and three counts of aggravated sexual battery, a Class B felony. After a sentencing hearing, he received a fifteen-year sentence to be served at one hundred percent for the aggravated rape conviction and concurrent eight-year sentences for the remaining convictions for a total effective sentence of fifteen years. On appeal, the Appellant contends that the trial court improperly instructed the jury on the mens rea for the offenses and erred by instructing the jury that voluntary intoxication was not a defense to aggravated rape; that the trial court erred by failing to dismiss the superseding indictment because it violated double jeopardy; that the trial court improperly admitted hearsay evidence regarding a codefendant's statements and conduct; and that the evidence is insufficient to support the convictions. The State argues that the trial court erred during sentencing by considering ex parte letters and emails written on the Appellant's behalf and requests that this court remand the case to the trial court for a new sentencing hearing. We conclude that the State should not have issued a superseding indictment charging the Appellant with aggravated rape in count four but that plain error does not require a retrial on that count. Accordingly, finding no reversible error, we affirm the judgments of the trial court.

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

          Peter J. Strianse (on appeal) and Worrick G. Robinson, IV, Courtney Teasley, and Khadija Babb (at trial), Nashville, Tennessee, for the appellant, Cory Lamont Batey.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Thomas Thurman, Roger Moore, and Jan Norman, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Timothy L. Easter and J. Ross Dyer, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         In August 2013, the Davidson County Grand Jury indicted Brandon E. Banks, Jaborian Dashon McKenzie, Brandon Robert Vandenburg, and the Appellant, all of whom were members of Vanderbilt University's football team, for aggravated rape in counts one through five and aggravated sexual battery in counts six and seven. In addition, the grand jury indicted Vandenburg for tampering with evidence in count eight and unlawful photography in count nine. The State jointly tried the Appellant and Vandenburg in January 2015, and the jury convicted them as charged in counts one through three and counts five through nine. The jury convicted them of attempted aggravated rape as a lesser-included offense of aggravated rape in count four.

         In June 2015, the trial court declared a mistrial and vacated the convictions due to juror misconduct. In July 2015, the State filed a superseding indictment, again charging each of the four defendants with aggravated rape in counts one through five and aggravated sexual battery in counts six and seven. The indictment also charged Vandenburg with one count of unlawful photography. The State retried the Appellant separately from his codefendants in April 2016.

         All of the counts involved the same victim and allegedly occurred on June 23, 2013. At trial, Julianna Martel testified that in June 2013, she was a student at Vanderbilt University. Martel and the victim were "good friends," and Martel knew Vandenburg "a little bit." On the night of June 22, Martel went to Tin Roof bar. She saw the victim, and the victim seemed "normal." Martel also saw Vandenburg and "didn't notice anything out of ordinary." Martel left Tin Roof about 1:30 a.m. on June 23. Before she left, she "met up" with the victim. The victim was "holding a blue drink in her hand that she had just got" and "seemed great, normal." Martel was not concerned about the victim.

         Lieutenant Donnie Harville of the Vanderbilt University Police Department testified that on the morning of Wednesday, June 26, 2013, he received a telephone call, requesting that he investigate an incident involving a broken door at Gillette Hall athletics dormitory. Lieutenant Hall reviewed June 23 video surveillance from the dormitory in order to determine who broke the door and "noticed four males appearing to be carrying an unconscious female." Lieutenant Hall began trying to identify the five individuals and obtained additional June 23 video from numerous surveillance cameras in the dormitory. After viewing the video, he contacted the Sex Crimes Unit of the Metropolitan Nashville Police Department (MNPD) and asked for assistance.

         The State played the surveillance video for the jury while Lieutenant Hall narrated a timeline of events. The video showed the victim's black Mercedes pulling up to Gillette Hall at 2:27 a.m. on June 23. Vandenburg, wearing a white t-shirt and blue pants, got out of the driver's seat and walked to the dormitory's entrance. Shortly thereafter, he returned to the car with McKenzie and Banks. Vandenburg opened the passenger door of the Mercedes, and Quela Royster and the Appellant walked to the passenger side of the car. Royster left the scene, and Vandenburg took the unresponsive victim out of the Mercedes. Vandenburg carried the victim into Gillette Hall and into a first-floor elevator. He put her onto the floor, and he and Banks took the elevator to the second floor. Vandenburg dragged the still-unresponsive victim out of the elevator and into the second-floor hallway. He and Banks appeared to use their cellular telephones to photograph the victim.

         At 2:36 a.m., Vandenburg, holding the victim's arms, and Banks, holding the victim's ankles, carried her down the hallway. They were joined by McKenzie and the Appellant, both of whom stepped off the elevator and were eating food. Vandenburg carried the victim toward room 213, which he shared with Mack Prioleau, and the three codefendants followed him. At 3:05 a.m., McKenzie came from the area of room 213, followed by a shirtless Banks. Vandenburg, also shirtless and wearing shorts and socks, came from the area of his room, and the three of them went into the bathroom. At 3:10 a.m., Vandenburg, with a towel over his head, walked up to the hallway surveillance camera and put the towel over it. The towel remained on the camera until 3:26 a.m.

         At 3:11 a.m., another camera recorded McKenzie and Banks leaving the area of room 213. About thirty seconds later, the fully-clothed Appellant walked away from the area of room 213 and into the second-floor lobby of Gillette Hall. McKenzie and Banks, who were roommates, entered their dormitory room on the sixth floor at 3:12 a.m. The Appellant, carrying a plate of food, got onto a second-floor elevator, took the elevator to the sixth floor, and stopped to eat in front of McKenzie and Banks's room. He entered their room at 3:14 a.m. and entered his own room down the hall at 3:27 a.m. At 3:37 a.m., the Appellant, in his "American flag underwear," came out of his room and went into the bathroom. At 3:44 a.m., he walked from the bathroom back to his room. He was wearing a towel around his waist and was carrying a shower caddie. At 3:48 a.m., the Appellant exited his room wearing shorts and shoes. He took the elevator to the first floor and let a female into the building. She followed him back to his room, and they entered his room at 3:50 a.m.

         Meanwhile, Vandenburg let four men into the second-floor lobby of Gillette Hall at 3:21 a.m. Those men were identified as Deandre Woods, Chris Boyd, Dillon Van Der Wal, and Michael Retta. The five of them walked toward Vandenburg's room and left a few minutes later.

         At 4:52 a.m., the victim came around the corner from Vandenburg's room and went into the bathroom. She was wearing a black top and had a white or light green towel around her waist. Shortly thereafter, she returned to room 213. At 8:08 a.m., the victim went into room 214, which was Jake Bernstein's room. The victim came out of Bernstein's room at 11:50 a.m. and exited Gillette Hall at 11:52 a.m. She and another female got into the black Mercedes, which was still parked in front of Gillette Hall, and the victim drove away.

         On cross-examination, Lieutenant Harville testified that all four of the defendants were smiling as Vandenburg carried the victim into Gillette Hall and that the Appellant and McKenzie were "horseplaying" outside the first-floor elevator. After Vandenburg pulled the victim out of the elevator and into the second-floor hallway, he was laughing and appeared to video-record the victim with his cellular telephone. He also appeared to photograph the victim's crotch area. Banks stepped behind a wall as if he were trying to avoid being recorded by Vandenburg. Banks then pulled out his own cellular telephone and appeared to photograph the victim. Lieutenant Harville acknowledged that Vandenburg was not friends with the codefendants but that the four of them were football teammates.

         Gerald Black testified that in June 2013, he was the Assistant Dean of Students and responsible for investigating and resolving violations of Vanderbilt University policy. On the evening of June 24, Dean Black viewed video "of a woman who appeared to be passed out or in some similar state being carried into a residence hall on campus by several male, male individuals." The next day, Dean Black interviewed nine students, including the four defendants. He did not speak with the victim. Dean Black interviewed the Appellant separately from the other students, and the Appellant wrote a brief statement, which Dean Black read to the jury. In the statement, the Appellant said that "my teammate Brandon arrived with what looked to be a drunk female. He asked for my assistance, and I helped him carry her to his room. After we laid the girl on the floor, I left to meet my girlfriend and we stayed the night there."

         Dean Black testified that he audio-recorded the Appellant's interview, and the State played the recording for the jury. During the interview, the Appellant stated that as he was walking out of Gillette Hall with a female friend, McKenzie and Banks returned from "getting food." A car pulled up to Gillette Hall, and they "all just kind of coincidentally met up." Vandenburg asked for some help, opened the passenger door of the car, and carried the victim into Gillette Hall. The four defendants "all went up together to the second floor," took the victim into Vandenburg's room, and "[l]aid her on the floor and left her." The Appellant said he was in the room "[f]ive minutes maybe" and left to meet his girlfriend. Dean Black asked the Appellant if the victim was "pretty much passed out or mumbling and incoherent the entire time," and the Appellant answered yes. When Dean Black advised the Appellant that surveillance video indicated he was in Vandenburg's room at least thirty to forty minutes, the Appellant responded, "I don't recall being there that long." The Appellant denied that he or anyone else in the room had sexual contact with the victim and denied consuming any alcohol prior to the incident.

         On cross-examination, Dean Black testified that the defendants were not advised of their right to counsel and were not under oath during their interviews. Later that week, he placed them on interim suspension pending an investigation. He did not have further involvement with the case.

         Detective Jason Mayo of the MNPD Sex Crimes Unit testified that on the afternoon of June 26, he went to the Vanderbilt University campus to gather information about the incident. Detective Mayo met with the victim at the Vanderbilt University Police Department, and the victim "[s]eemed normal and a bit confused." Detective Mayo's supervisor showed the victim some photographs, and she was "still somewhat dumbfounded and confused." Detective Mayo said that he usually tried to investigate sex crimes within seventy-two hours of the event so that physical evidence could be collected from a victim. Although eighty to ninety hours had elapsed in this case, Detective Mayo offered a physical examination to the victim, and she agreed. He met her at the hospital, and a nurse practitioner performed the examination and collected evidence for a rape kit. Detective Mayo then followed the victim to her residence. She went inside, gathered the clothing she had been wearing on the night of June 22, and gave him the clothing in a brown paper bag. The clothing consisted of a black two-piece dress and two pairs of panties. The victim told Detective Mayo that she could not remember which pair she had been wearing, "so she put both in the bag."

         Detective Mayo testified that on June 27, he viewed surveillance video from Gillette Hall, which led him to believe that "something could have occurred" in room 213. He met with Vandenburg at the Vanderbilt University Police Department, and Vandenburg gave Detective Mayo his cellular telephone and the "unlock code" for the telephone. Detective Mayo also met with the Appellant. At that time, Detective Mayo had not seen any images from any cellular telephones or computers. The Appellant was free to leave during the interview and did so after he talked with the detective.

         Detective Mayo audio-recorded the Appellant's interview, and the State played the recording for the jury. During the interview, the Appellant told Detective Mayo the following:

So after we left over our friend's room, I went over to East with a female friend. And I went up to my room. [McKenzie] and Banks said they were about to go get some food. They left to go get the food. The female wanted to leave. I took her downstairs. And we -- just so happened we all met up downstairs. And from that point on, our friend pulled up with the female. You know, he was like, "Can y'all help me take her up," or whatever. So I helped him get out the car, whatever. Banks and [Vandenburg] went up with the girl. I got my food from [McKenzie]. Then we went up to see, you know, if everything was all right. So then they got into the room. We went into the room and we was just in there talking. And I left. I met my girlfriend.

         The Appellant said that the victim was on the floor, that she was mumbling, and that she had vomited. Detective Mayo asked if anyone "mess[ed]" with the victim, if the Appellant put his penis or fingers inside of her, if anyone took photographs or video of her, and if anyone involved met to discuss their "story." The Appellant answered each question in the negative.

         Detective Mayo testified that he went to room 213 in Gillette Hall and that Vandenburg and Prioleau consented to a search. The room was small with a set of bunk beds, a television, and a refrigerator, and bottles and clothing were scattered about the room. Detective Mayo did not see any "blatant" evidence, so he had technicians "process the room as they knew how." At that time, a water bottle was not significant to Detective Mayo, so he did not have the technicians collect any water bottles.

         Detective Mayo testified that on June 28, he obtained numerous search warrants for cellular telephones, computers, and digital evidence. He returned to room 213 and collected Vandenburg's laptop computer. He also seized the Appellant's cellular telephone and searched the Appellant's room on the sixth floor. The detective had noticed that the Appellant was wearing a white wristwatch in the June 23 surveillance video. A white wristwatch was in the Appellant's room and resembled the one in the video. Detective Mayo said that over the course of his investigation, he obtained cellular telephones belonging to Banks, McKenzie, and Boyd; the Appellant's cellular telephone records; and DNA samples from all four defendants, Woods, Boyd, Van Der Wal, Retta, and Prioleau. On cross-examination, Detective Mayo testified that at one point during the surveillance video, the victim had her arm "draped" around Vandenburg.

         Sharon Tilley testified that in June 2013, she was a crime scene technician with the MNPD. On June 27, she processed room 213 for evidence and collected a white towel, two light green towels, and a red and white towel. One of the light green towels had a stain on the edge, and the red and white towel smelled of urine and had brownish-colored stains on it. On cross-examination, Tilley testified that she "did run a crime scene lamp and an alternate light source in the room" to check for bodily fluids and that she did not notice anything of value on the floor. Tilley used the light source on the lower bunk but not the top bunk because she was advised that the top bunk was not part of the investigation.

         Felicia Evans testified that she was a crime scene investigator with the MNPD and helped Tilley process room 213 for evidence. Evans said that when she walked into the room, she was "overtaken with the smell of urine, and the crime scene itself was very dirty, just riddled with trash, food bags, drink cans, water bottles, clothing, shoes were cluttered. The area where the towels were, it was just basically a mound of trash." A condom box and an unwrapped condom were in a desk drawer. Evans processed the room for fingerprints, and she obtained two fingerprints off the interior side of the door and two fingerprints off the condom box. She also swabbed numerous areas of the room, including "a cleared space on the floor," for any trace evidence. On cross-examination, Evans testified that she collected the bedding on the lower bunk and a sample of "vomitlike" crusty material that was on a plastic "tub" in the room.

         Detective Chad Gish of the MNPD testified as an expert in computer and mobile device forensic analysis that he viewed the video surveillance from Gillette Hall, which provided him with a timeline of the June 23 events. The victim and the defendants were in room 213 from 2:37 to 3:05 a.m., so Detective Gish began analyzing digital devices for that timeframe. First, he analyzed Vandenburg's cellular telephone. He did not find any photographs or videos for the time the victim was in Vandenburg's room but found "evidence of several references to rape"; a one-minute and eleven-second call made to Joseph Quinzio; "some internet history that was very disturbing"; and evidence referencing Facetime, which Detective Gish described as "a video phone call." Regarding the telephone's internet history, Detective Gish found that Vandenburg had used Google to search "can police retrieve deleted picture messages."

         Detective Gish testified that a "gap" of images was missing from Vandenburg's telephone, meaning that someone had deleted the images. Detective Gish could not recover the original images but was able to retrieve "thumbnails," which were miniature copies of the images. He then identified and described as follows the thumbnail photograph and video images he obtained: The first photograph image showed the victim lying face-down outside a dormitory room or elevator. She was not wearing any underwear, her buttocks were "reddened," and a plate of food was to her left. The second photograph image showed the victim on the floor of Vandenburg's room. The Appellant had removed his jeans and was wearing American flag underwear. A water bottle was to his right, and he appeared to be "mounting" the victim. Another photograph image showed the victim lying on her back in the room. She was not wearing any underwear, her legs were spread open, and Banks appeared to be holding a cellular telephone and taking photographs of her. In the first video image, the victim was lying on her stomach. She was not wearing any underwear, her legs were spread open, and the Appellant was touching her "private area." In the second video image, the victim was lying on her left side, her underwear was pulled down but not removed, and "she has a bottle inserted in what appears to be her anus." In the third video image, the victim was lying on the floor of the room, and the Appellant "appears to be inserting his finger in one of her orifices." In the fourth video image, the Appellant was on his knees with his pants pulled down, exposing his American flag boxer shorts, and his hands were near his groin.

         Detective Gish testified that he also obtained thumbnail images from the Appellant's cellular telephone; the original images had been deleted. A video image showed the victim lying on her back with her vagina exposed. A photograph image showed Banks using his left thumb to pull open the victim's vagina so he could take a photograph with his telephone, which was in his right hand. Another photograph image showed the victim lying on her stomach in the room, and she had a red handprint on her left buttock and redness on her right buttock. In another photograph image, the Appellant, wearing the white wristwatch, was spreading open the victim's buttocks, exposing her anus and vagina. Detective Gish also obtained photograph images from Banks's telephone. He said that one image appeared to show the Appellant's finger in the victim's anus and that another image showed the victim lying on her back with the Appellant "squatting" over her and his anus "sitting on top of her face." Detective Gish did not obtain any photograph or video images related to this case from McKenzie's telephone.

         Detective Gish testified that after he analyzed the telephones, he analyzed Vandenburg's computer and discovered that someone had accessed several pornography websites while the victim and the defendants were in room 213. Next, Detective Gish began trying to determine if Vandenburg sent any videos from his telephone to other people and identified two possible individuals: Miles Finley and Joseph Quinzio. Finley and Quinzio lived in Vandenburg's hometown of Palm Desert, California, and had played junior college football with him. On July 23, 2013, Detectives Gish and Mayo flew to Palm Desert. They met with detectives from the Palm Desert Police Department and obtained search warrants for Finley's and Quinzio's electronic devices. Detective Gish said he and Detective Mayo went to Quinzio's house first and seized two cellular telephones and a computer. Detective Gish also found a receipt for a recently-purchased cellular telephone. The detectives then went to Finley's house. Finley was not there, but Detective Gish talked with him on the telephone, and he agreed to return home. When he arrived, Detective Gish removed Finley's cellular telephone from his person. Finley told Detective Gish that he had just "wiped" that telephone "because there may have been inappropriate images of he and his girlfriend." As a result, Detective Gish was unable to obtain any evidence from that device.

         Detective Gish testified that when he returned to Nashville, he analyzed Quinzio's telephone and computer. He found three videos of the victim that Vandenburg had sent from Vandenburg's telephone. The State played the videos for the jury while Detective Gish explained what was depicted in the videos: The first video showed the victim lying in the hallway outside the second-floor elevator in Gillette Hall. Her skirt had been removed or pulled up, and Banks was taking photographs of her "private areas." The second video showed the victim on the floor of room 213 and "[w]hat appeared to be" the Appellant's finger in her anus. The third video showed the victim lying on the floor with a bottle in "[w]hat appeared to be" her anus. Someone in the room said, "'Squeeze that shit, squeeze that shit.'" Banks twisted and squeezed the bottle. Detective Gish said that the Appellant then appeared to have sex with the victim because "he's mounted up to her, right where her vagina would be." Detective Gish stated that "we hear laughing and cutting up" in the room and that someone said, "'You ain't even hard, bro.'" Further analysis of Quinzio's computer showed that on June 26, 2013, Vandenburg and Quinzio had a text message conversation in which Vandenburg asked Quinzio to send the videos back to him. Quinzio returned only two of the three videos.

         Detective Gish testified that he analyzed the victim's telephone. On June 23, 2013, Jake Bernstein placed a "missed" called to the victim at 2:55 a.m. The victim called Bernstein at 7:54 a.m.

         Detective Gish testified about text messages he extracted from the Appellant's telephone. At 6:22 p.m. on June 23, the Appellant texted Boyd, "'Everything still good?'" Boyd replied, "'Yeah, man, as far as I know.'" In a conversation with Boyd on the afternoon of June 24, the Appellant asked Boyd, "'We still good? I'm stressing.'" Boyd replied, "'As far as I know.'" The Appellant then asked Boyd if the video had been "'deleted'" and if Boyd had talked to "'her.'" Boyd replied that "'she doesn't know that anything happened but she passed out in Vandenburg's bed. . . . Van Der Wal helped us move her out of the hallway.'" The Appellant told Boyd, "'Tell him don't say nothing to anybody.'" Boyd answered, "'He knows.'" In a conversation with an individual named Antonio Richardson on the night of June 25, the Appellant stated that he was probably going to be "'kicked off'" the football team. Richardson asked what was going on, and the Appellant answered, "'They trying to say I raped a bitch with some other teammates. I got to leave Nashville, bro. I can't come back. . . . We just helped the bitch to her room because who she was with he was too drunk. I need your help, bro. I know I'm gone.'" In another conversation with an unidentified individual on the night of June 25, the Appellant stated, "'They are trying to say we raped this bitch Saturday night. We helped a friend carry her to his room because he was drunk too.'" The person responded, "'I was with you that night and I saw [McKenzie] and Brandon the next morning. I can stick up for y'all. Y'all weren't acting weird at all and if you had done anything bad you would have been acting weird.'"

         On cross-examination, Detective Gish testified that at 10:26 p.m. on June 22, 2013, the Appellant received a text message asking, "'[W]hat you getting into tonight[?]'" The Appellant responded that he did not know yet and that "'I'm just drinking now.'" Detective Gish acknowledged that some of the photographs and videos from the defendants' telephones appeared to depict the same acts from different angles. He also acknowledged that when the Appellant appeared to be "mounting" the victim, his boxer shorts were on and his penis was not visible. Likewise, the Appellant's penis was not visible when his anus was on the victim's face.

         Jaborian McKenzie testified that at the time of the Appellant's trial, he was twenty-one years old, a senior majoring in Ag-Business at Alcorn State, and out on bond in this case. In June 2013, he was eighteen years old, was attending Vanderbilt University on a football scholarship, and had never been convicted of a crime. He said that he and the Appellant were best friends, that the Appellant had a "strong personality," and that the Appellant was a "leader." McKenzie and Banks were roommates, and they too were best friends. McKenzie did not know Vandenburg. McKenzie said he was "not happy" about testifying against the Appellant.

         McKenzie testified that on the night of June 22, he was in his room with Banks and the Appellant and that they were "[h]anging out," drinking alcohol, and listening to music. McKenzie drank two or three Lime-A-Ritas and one or two cups of vodka, and the Appellant drank "[a]bout the same." At some point, the three of them went to "a little gathering" at East Hall. They continued to drink alcohol and were "buzzed" when they went back to Gillette Hall, but they were able to function on their own and did not have any trouble walking or understanding each other. McKenzie and Banks returned to their room, and the Appellant and a female friend went to the Appellant's room. McKenzie and Banks decided to go and get food from Qdoba, and they agreed to bring back food for the Appellant.

         McKenzie testified that he and Banks arrived back at Gillette Hall with the food about thirty minutes later and saw the Appellant and his female friend. Vandenburg approached, said a girl was "passed out" in a car, and said he needed help getting her to his room. McKenzie stated that he was the last person to enter Vandenburg's room and that the victim was "passed out" on the floor and not making any sounds. Vandenburg tried to wake his roommate and stated that "we were going to [f*ck] this bitch." Vandenburg got some condoms out of a dresser and passed them out to his codefendants. McKenzie took one condom and put it into his pocket.

         McKenzie testified that the Appellant penetrated the victim vaginally and anally with his fingers while Vandenburg was "egging on." The State asked McKenzie who put the bottle into the victim. McKenzie said that he was "not sure" but that Banks squeezed the bottle. The State then asked, "Who appeared to be on top of [the victim], attempting to have sex?" McKenzie said the Appellant. McKenzie stated that after the Appellant tried to have sexual intercourse with the victim, the Appellant said that "he'd never had ass ate before." The Appellant sat on the victim's face and put his penis into her mouth. The State showed McKenzie a photograph, and he said it showed the Appellant "attempting" to put his penis into the victim's mouth. The Appellant then tried to have sexual intercourse with the victim again. The State asked McKenzie how he knew the Appellant was trying to have sex with the victim, and McKenzie answered that the Appellant was on top of the victim, between her legs, and making "[s]exual movements." The Appellant "started to slap" the victim, and McKenzie told everyone that she was going to "wake up." Vandenburg responded that the victim was not going to "wake up," reached over, and slapped her buttocks "pretty hard." At some point, Vandenburg put pornography on his laptop computer, touched himself, and said he "couldn't get a hard on because he'd done so much coke." McKenzie said the last thing that happened to the victim was that the Appellant said he was going to "piss" on her. The Appellant urinated on the victim. McKenzie stated that he never touched the victim and that Vandenburg's roommate was asleep in his own bunk during the entire incident.

         McKenzie testified that he, Banks, and Vandenburg went into the bathroom and that he and Banks were "freaking out from what happened in the room." Vandenburg flushed the condoms down the toilet and told them, "'Calm down, chill. It's going to be okay.'" He also told them that "he had done it before" and that "his dad beat a rape case." The three of them returned to Vandenburg's room, and Vandenburg asked Banks and McKenzie to take the victim back to her car. Banks and McKenzie did not want to be seen on the security camera, so Vandenburg put a towel over his face and covered the camera with the towel. McKenzie and Banks ran out of room 213 and returned to their room. At that time, the victim was lying outside room 213. McKenzie identified a photograph of the victim lying on her stomach outside the room and said the photograph showed "red marks" on her "behind." McKenzie said the Appellant joined him and Banks in their room. The Appellant was "on his phone" and was talking "[i]n a normal fashion." Later that morning, McKenzie asked the Appellant if he "[got] it in," and the Appellant answered yes.

         McKenzie testified that he and his codefendants were questioned by Student Conduct. Afterward, they went to a Popeye's restaurant, and "we all asked each other what we told Student Conduct. And we, pretty much, told them the same thing; everything that happened in the room, except for the bad stuff. And we said we was going to stick with that until further notice." McKenzie said he lied to Dean Black, the police, and even the attorneys in the district attorney's office because he was ashamed of what had happened in room 213; because his family members told him "not to tell anything that couldn't be proven"; and because "it was just hard to tell on my two best friends at the time." He said that he was hoping for "[s]ome type of consideration" in exchange for his testimony but that the State had not promised him anything.

         On cross-examination, McKenzie acknowledged that he lied to Dean Black on June 25 and Detective Mayo on June 27, 2013, when he told them that "nothing happened" with the victim. McKenzie talked with Detective Mayo again on July 17, 2013, and was partially truthful. For example, he truthfully told Detective Mayo that the Appellant was "really drunk" and that the Appellant "'peed on her [but] didn't even know what he was doing.'" However, he lied to the detective by claiming that he did not think the Appellant had sex with the victim, that he did not think the Appellant put his penis into her anal area or mouth, and that he did not see any condoms.

         McKenzie testified that on September 14, 2014, he and his attorneys met with attorneys from the district attorney's office. By that time, McKenzie had been indicted and had seen the evidence against him, so he decided to tell the truth. McKenzie told the prosecutors that the Appellant was "drunk," that the Appellant put his finger inside the victim, and that the Appellant tried to get a "hard on" by putting his penis into her mouth. McKenzie acknowledged that he previously had stated "over and over" that he never saw the Appellant's penis. Defense counsel asked him, "But now you are certain you saw it?" McKenzie answered, "I saw him grab his penis area, trying to put it in [her mouth and vagina]."

         McKenzie acknowledged telling the prosecutors that the Appellant "put his butt in her face" and "went back down, got between her legs, and attempted to have sex with her." Defense counsel asked if McKenzie was "certain" the Appellant had sex with the victim, and McKenzie answered, "Well, he told me the day after." McKenzie also acknowledged telling the prosecutors, "'Banks only placed the bottle near her vagina but [the Appellant] shoved it in there[.]'" Defense counsel asked if McKenzie saw the Appellant put his finger into the victim's anus and vagina, and McKenzie answered, "Yes, ma'am. The pictures clearly show it."

         On redirect examination, McKenzie testified that he saw the Appellant put the Appellant's penis into the victim's mouth. On recross-examination, McKenzie clarified that he never saw the Appellant's penis that night but that he saw the Appellant "holding his penis area and placing it in her mouth."

         Mack Prioleau, a student at Vanderbilt University, testified that on June 23, 2013, he was eighteen years old and a member of Vanderbilt's football team. He had been living in Gillette Hall for two to three weeks, and Vandenburg was his roommate. They did not know each other before becoming roommates.

         Prioleau testified that on the night of June 22, he drank two sixteen-ounce beers and went to sleep in his top bunk about midnight. Sometime in the early morning hours of June 23, he was awakened by the lights being turned on and saw Vandenburg and three other football players in the room. He later learned those football players were Banks, the Appellant, and McKenzie. Prioleau also saw a woman he did not recognize lying face-down on the floor. He said he "rolled back over" and "heard sexual things going on." Specifically, he heard "people use the F-word, referring to having sex with this woman" and "pornography playing in the background." Prioleau also heard "a little bit of laughter here and there" and heard Vandenburg say he could not get an erection "due to the use of cocaine."

         Prioleau testified that at some point, he realized no one was in the room. He got up and left as fast as he could. As he was leaving, he saw the victim lying on Vandenburg's bed. Prioleau said that he never heard her say anything, that she was "still," and that she appeared to be unconscious. Prioleau saw Boyd in the second-floor hallway, and Prioleau went to a friend's room on the sixth floor. He returned to room 213 about noon, but no one was there. Vomit was on the floor, so Prioleau used a Swiffer mop to remove it and "what else was on the floor." Later that day, Vandenburg sent Prioleau a text message, asking if Prioleau could leave the room so Vandenburg "could be with another girl." Prioleau did so.

         Prioleau testified that he spoke with Detective Mayo. Afterward, he saw Banks, the Appellant, and McKenzie outside Gillette Hall. Banks asked if Prioleau could "help him out," and Prioleau said okay and walked off. Prioleau consented to a search of his room, and his father hired a lawyer. Prioleau later signed a Use Immunity Agreement so that he could tell the truth without it being used against him.

         On cross-examination, Prioleau testified that he no longer played football for Vanderbilt. Prior to June 23, 2013, he recognized the Appellant as a football player but did not know the Appellant's name. During the incident in room 213, Prioleau was "in and out of sleep" and "tried just to block it out and not see anything." He said that he was alone in the room with the victim for a certain amount of time but that he did not know how long he was alone with her. When Prioleau returned to the room later that day, he saw vomit on the floor and on a cooler that belonged to him.

         Joseph Quinzio testified that in late June 2013, he was eighteen years old, living in Palm Desert, California, and Vandenburg's friend. They went to high school together, and Quinzio had known Vandenburg six or seven years. On the night of June 22 or in the early morning hours of June 23, Quinzio received a call and text messages on his cellular telephone from Vandenburg. Quinzio's telephone was wirelessly connected to his computer, so the text messages also went to his laptop. Quinzio described the messages as "out of character and surprising, as a friend, to see." Vandenburg also sent Quinzio three videos, which Quinzio described as "very surprising" and "very horrific, in some of the actions that were done there." In the first video, Quinzio saw an unconscious woman and other people around her. The second and third videos appeared to have been recorded in a dormitory room. The room was dark, the unconscious woman was on the floor, and three men were around her. A fourth man, Vandenburg, was recording. Quinzio said that he did not recognize the woman or the three men but that he recognized Vandenburg by Vandenburg's voice. Quinzio deleted the videos from his cellular telephone "right away" and went to sleep.

         Quinzio testified that a couple of days later, Vandenburg did not remember sending the videos and asked that Quinzio send them back to him. Quinzio returned two of the videos, which were still on his computer. The third video had been deleted. At some point, Vandenburg returned to Palm Desert. He destroyed Quinzio's cellular telephone and bought him a new one. Vandenburg also "insisted on coming over to wipe the computer of the information, and was unsuccessful at that."

         Quinzio testified that Nashville detectives came to Palm Desert to talk with him and that he told the detectives he had lost his telephone. Quinzio said he lied to the detectives because he was scared and because he was "coerced" by Vandenburg and Vandenburg's attorney. Quinzio was later charged with tampering with evidence for deleting the videos and for attempting to erase his computer. He entered a conditional guilty plea to being an accessory after the fact and received a sentence of eleven months, twenty-nine days to be served on unsupervised probation. At the time of the Appellant's trial, Quinzio had completed his probation and was attempting to have the conviction removed from his record.

         On cross-examination, Quinzio acknowledged that one of Vandenburg's text messages said, "'I'm a make sure I F-U-C-K tonight.'" Quinzio responded to Vandenburg, "'Call me during.'" Quinzio acknowledged that after this incident, Vandenburg told him what to do and that he felt threatened by Vandenburg.

         On redirect examination, Quinzio testified that he did not fear physical harm from Vandenburg but that he was afraid for Vandenburg because they were still friends and he thought Vandenburg was innocent. On recross-examination, Quinzio testified that Vandenburg asked for Quinzio's telephone. When Quinzio refused to give it to Vandenburg, Vandenburg took the telephone out of Quinzio's car. Quinzio acknowledged, though, that he consented to Vandenburg's accessing his laptop computer.

         Deandre Woods testified that he was a student at Vanderbilt University. In June 2013, he was on a football scholarship, lived on the fourth floor of Gillette Hall, and had been on campus two or three weeks. He knew Vandenburg from the football team but did not socialize with him.

         Woods testified that on the night of June 22, he went to Tin Roof. He did not remember seeing Vandenburg there. Woods left Tin Roof in the early morning hours of June 23, returned to Gillette Hall, and "stumbled across" Boyd, Van Der Wal, and Retta. The four of them entered the second floor of Gillette Hall, and Woods saw the victim lying on the floor outside room 213. The victim was "unclothed and unconscious." Boyd told Woods to help get the victim into Vandenburg's room, so Woods picked her up by her shoulders while Boyd picked her up by her ankles. They put the victim on Vandenburg's bed, and Boyd covered her with blankets. Woods said he did not touch any other part of her body or photograph her. Boyd told Woods to get out of the room, so Woods went to his room on the fourth floor. On cross-examination, Woods testified that he did not remember seeing Prioleau in room 213.

         Dillon Van Der Wal testified that in June 2013, he was a junior at Vanderbilt University and on the football team. Van Der Wal and Boyd were neighbors in East Hall. Van Der Wal knew Vandenburg and the Appellant.

         Van Der Wal testified that in the early morning hours of June 23, Boyd received a telephone call from Vandenburg. In response to the call, Boyd, Van Der Wal, and Retta went to Gillette Hall and entered the building on the second floor. They walked down the hall to Vandenburg's room, and Van Der Wal saw the victim lying face-down on the floor. Her dress was around her stomach area, she was nude from the waist down, and she had "handprints on her butt." Van Der Wal noticed that a towel was draped over a surveillance camera in the hallway.

         Van Der Wal testified that Vandenburg, Boyd, and Deandre Woods picked up the victim and carried her into the room. Van Der Wal did not touch the victim. He walked into Vandenburg's room briefly and saw Prioleau get out of Prioleau's bed and walk out of the room. Van Der Wal, Boyd, Retta, and Vandenburg then walked to East Hall. Van Der Wal said that Vandenburg was "definitely intoxicated" but that Vandenburg "wasn't overly intoxicated where he needed assistance." Van Der Wal had an extra bed, so Vandenburg stayed in Van Der Wal's room that night.

         On cross-examination, Van Der Wal testified that at the time of the incident, he and the victim were friends. Van Der Wal acknowledged that he cared for the victim's safety and welfare but that he did not call security for her. Van Der Wal did not see the Appellant in Vandenburg's room.

         Courtney Heard testified that in June 2013, she was a student at Vanderbilt and lived off campus with Quela Royster and Gozie Nkema. Heard knew the Appellant. In the early morning hours of June 23, Heard and Nkema went to the Appellant's room in Gillette Hall to get Royster because they wanted Royster to go home with them. Heard knocked on the Appellant's door, and he answered wearing American flag boxer shorts. Heard said that she and Nkema stood outside the Appellant's door for thirty or forty minutes while they were waiting on Royster and that she heard the Appellant and Royster "murmuring" inside the room.

         Julia Hooper testified as an expert in fingerprint analysis that she worked for the MNPD Crime Laboratory and compared the fingerprints found in room 213 to the defendants' fingerprints. The fingerprints on the interior side of the door did not match any of the defendants. However, the fingerprints on the condom box matched McKenzie and Banks.

         Special Agent Forensic Scientist Charly Castelbuono of the Tennessee Bureau of Investigation (TBI) testified as an expert in DNA analysis that she analyzed evidence collected in this case, including the victim's rape kit, the victim's clothing, and towels and bedsheets from room 213. She also compared DNA found on the evidence to the defendants' DNA. Agent Castelbuono found a small amount of sperm on the victim's vaginal swabs. The DNA on the swabs matched the victim and Vandenburg, and Agent Castelbuono eliminated the Appellant, Banks, and McKenzie as contributors. Agent Castelbuono did not find any sperm on the victim's top or skirt but found one sperm on each pair of the victim's panties. Given that semen contained an average of 200 to 500 million sperm per ejaculation, Agent Castelbuono opined that the single sperm on each of the panties was "not consistent with an actual semen stain being present" and may have been the result of a transfer from another surface.

         Agent Castelbuono testified that she found non-sperm DNA and sperm DNA in two stains on a green towel. The non-sperm and sperm DNA in the first stain matched Vandenburg. The non-sperm DNA in the second stain was a mixture of two individuals with the major contributor being Vandenburg. Agent Castelbuono could not determine the minor contributor due to insufficient or degraded DNA. Agent Castelbuono also found non-sperm DNA and sperm DNA in two stains on a second green towel. The non-sperm DNA in the first stain was a mixture of at least two individuals with the major contributor to the mixture being an unknown male. Agent Castelbuono could not eliminate Vandenburg as the minor contributor but eliminated the victim, the Appellant, Banks, and McKenzie. The sperm DNA did not match any of the defendants. The non-sperm DNA and sperm DNA in the second stain matched Vandenburg. Agent Castelbuono did not find any semen on a red and white towel.

         Agent Castelbuono testified that she found non-sperm DNA and sperm DNA on a fitted bedsheet from the lower bunk. The non-sperm DNA was a mixture of the victim's and Vandenburg's DNA, and the sperm DNA matched Vandenburg. Agent Castelbuono found three stains on the mattress cover for the lower bunk. The non-sperm and sperm DNA in the stains was from an unknown male, and all four defendants were eliminated as contributors. Agent Castelbuono acknowledged that she did not conclusively find the Appellant's DNA on any of the evidence. She also acknowledged that she probably would not have expected to find his DNA if he was wearing a condom.

         On cross-examination, Agent Castelbuono testified that it would have been "preferable" for the victim's panties to have been bagged separately. She acknowledged that she did not find any semen on swabs collected from the floor of room 213 or in the crusty material on a tub in the room. She did not test any of the items for urine, noting that "[w]e don't have a test for urine at the TBI."

         Lauren Miller testified that in June 2013, she lived in the Village at Vanderbilt and was the victim's roommate. Miller and the victim were on Vanderbilt's dance team, and Miller had known the victim for a couple of years. On the night of June 22, Miller and the victim were at their apartment. They consumed some mixed drinks and mingled with friends. They then went to Tin Roof and arrived about midnight. Miller saw Vandenburg near the entrance. She had seen him around campus previously but did not know him very well. Vandenburg "seemed excited" to see the victim, immediately walked up to her, and handed her a drink. Miller stayed at Tin Roof only five or ten minutes.

         Miller testified that she did not see the victim again until the early afternoon of June 23 and that she was "shocked" by the victim's appearance. The victim "seemed to be very disheveled," and Miller noticed a few things that were "a little bit strange." For example, the victim's hair was very matted "as if it had gotten wet and then been dried again, which was confusing to us, because we didn't know how it had gotten wet." The victim also had "puke" crusted in her hair and on her shirt, and her shirt "felt very stiff, similar to her hair, as if it had gotten wet and then been dried." The ...


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