Thanks for visiting! Welcome to a new way to research case law. You are viewing a free summary from Descrybe.ai. For citation and good law / bad law checking, legal issue analysis, and other advanced tools, explore our Legal Research Toolkit — not free, but close.
State of Tennessee v. Dallas Jay Stewart
Citation: Not availableDocket: M2011-01994-CCA-R3-CD
Court: Court of Criminal Appeals of Tennessee; July 22, 2013; Tennessee; State Appellate Court
Original Court Document: View Document
Dallas Jay Stewart was convicted in the Marshall County Circuit Court on multiple counts: nine counts of child rape (Class A felonies), fourteen counts of aggravated sexual battery (Class B felonies), and one count of exhibiting harmful material to a minor (Class A misdemeanor). The trial court sentenced him to twenty-five years for each child rape count, twelve years for each aggravated sexual battery count, and eleven months and twenty-nine days for the exhibition charge, with all counts ordered to run consecutively, resulting in a total effective sentence of fifty years. On appeal, Stewart raised several issues: the sufficiency of the evidence for his convictions, the trial court's denial of his motion to suppress, the failure to merge several aggravated sexual battery convictions, and the excessiveness of his sentence. The appellate court upheld the trial court's judgments for the exhibition charge, five counts of aggravated sexual battery, and one count of child rape, but vacated the judgment for one aggravated sexual battery count and dismissed it. The court also found that the trial court erred by not merging eight counts of aggravated sexual battery and eight counts of child rape, ordering the trial court to correct these convictions. The opinion included testimony from a police officer regarding the initial report of allegations from a victim, M.A. The officer noted that M.A. was upset and hesitant to provide details during her first interview, which is typical in cases of child sexual abuse. He documented her statement but did not record the interview, explaining that victims often do not disclose all relevant information immediately. The case was remanded for the necessary adjustments to the convictions. Detective Scott Braden of the Lewisburg Police provided testimony regarding an investigation into a sexual abuse allegation received on August 14, 2009. After being informed by Officer Clark that the victim, M.A., was upset and that another potential victim was unavailable, Braden postponed the investigation until the following Monday. On Monday morning, M.A., A.G., and their mothers visited the police station for interviews. Braden emphasized the importance of building rapport when interviewing children, noting that they often do not disclose all pertinent details initially. He spent about an hour with M.A., who was 11 years old at the time, and found her more communicative in the absence of her mother. Further interviews occurred on August 21, with Braden interviewing M.A. again. On August 17, he received information about items being burned at the Defendant's residence and visited the location, where the Defendant's mother informed them that the Defendant was not home. Upon returning later, the Defendant answered the door. Braden read the Defendant his Miranda rights, which the Defendant acknowledged. The Defendant disclosed that M.A. and A.G. had spent the night at his home twice, stating that he found them playing strip poker on his bed, with M.A. nude and A.G. in her underwear. He claimed to have told them to stop and put on their clothes but did not explain where the cards came from. The Defendant identified the dates of the incidents as July 22 and 29, 2009, and commented on the appearance of the situation, admitting it did not look good but asserting he never informed the victims' parents. He mentioned condoms that the victims might have taken from his nightstand but denied any knowledge of their use. The Defendant suggested that the victims should be accountable for their actions and claimed M.A. had been wearing a 'youth bra.' He also noted that A.G. had seen him naked once and recounted his recent purchases for the victims. The Defendant briefly mentioned a girl he met on Craigslist and acknowledged having condoms for personal use, while his mother was present during the questioning about his sexual relationships and the condoms. Detective Braden testified about the search of the Defendant's house, identifying key items found, including a photograph of country music singer Gretchen Wilson on a nightstand, a Bible, a shotgun visible behind the bedroom door, and a computer associated with allegations of pornography viewed by the Defendant and victims. An unopened two-pack of condoms was found in the nightstand drawer. Braden noted discrepancies regarding the timing of the Defendant's statement, indicating it was recorded at 2:07 p.m. but written down prior. He detailed interactions with the Defendant, who maintained he did not touch the victims and described their behavior as playing strip poker. A written statement by the Defendant mirrored his oral account, indicating he told the victims to dress, with one complying while the other resisted until threatened. The Defendant stated he promised not to inform their parents if they behaved and described cooking dinner, after which they fell asleep while he went to bed. He mentioned past instances of the victims playing with sex toys and buying them gifts, including an Easy Bake Oven and a skateboard to avoid exclusion. Detective Braden clarified that the Defendant was not arrested because the victims were safe, and further investigation was needed. The Defendant voluntarily came to the police station the next day, where he was interrogated for about one to one and a half hours after being advised of his rights. During interrogation, the Defendant did not admit wrongdoing until prompted by Agent Smith and expressed regret over his actions, indicating he may need to consult his mother or a lawyer. Braden emphasized that the Defendant was not in custody, was free to leave, and chose to continue the conversation, asserting that the truth would eventually surface. The Defendant was questioned by Detective Braden about his understanding of his rights, which he acknowledged. During the interrogation, the Defendant admitted to sexually touching the victims, including licking their genitalia and using his finger. Detective Braden requested a recorded statement from the Defendant, who agreed and confirmed his comprehension of his rights. In the recorded statement, the Defendant described an incident involving the victims after church, where they engaged in strip poker. He recounted a situation where A.G. showed him a condom, insisted he wear it, and ultimately allowed her to put it on him. A.G. and M.A. then stimulated him, and he licked A.G.'s genitalia, although he denied touching her with his fingers. He admitted to touching M.A.'s clitoris but not penetrating her. The Defendant mentioned that A.G. had looked at pornography on his computer during the incident and clarified that he did not buy gifts for the victims to silence them but had done so prior to the incidents. He expressed fear about the consequences of telling the truth, including potential imprisonment and loss of his job and home. The Defendant acknowledged sexual contact on two separate occasions, one involving licking and another involving condom use. After the recording, Detective Braden presented a written statement taken from the Defendant. The document describes two incidents involving inappropriate sexual conduct by the Defendant with two minors, A.G. and M.A. In the first incident, following church in July, the victims accessed pornography on the Defendant’s computer and engaged in discussions about sexual acts. After repeated requests from A.G., the Defendant ultimately performed oral sex on her. He also touched both victims inappropriately. The second incident occurred a few weeks later, also after church, when the Defendant took the victims to a store and then to his house. Upon entering, he found the victims naked and playing strip poker. A.G. coerced the Defendant into undressing and putting on a condom, after which she engaged in sexual acts with him. He also touched both victims inappropriately during this encounter. Detective Braden testified about the circumstances of the Defendant's arrest and interrogation, including the presence of the prosecutor during the interview and the Defendant's comments about his actions. Detective Braden noted the Defendant's opportunity to leave and the lack of recording during part of the interview due to the Defendant's wishes. Additionally, Detective Johnson discussed interviewing A.G. and her mother, indicating that multiple interviews are typical in child sexual abuse cases to foster trust and gather more information. Detective Johnson and Detective Braden visited the Defendant's residence twice on August 18, 2009. During the first visit, they did not enter or see the Defendant, but during the second visit, they identified him and entered the house. The Defendant was read his rights and consented in writing to searches of both his house and computer. Johnson reported that the Defendant denied any sexual misconduct, both verbally and in writing, and that the idea of taking a polygraph examination originated from the Defendant, influenced by his mother. During the searches, condoms were found in the nightstand, based on information from the victims' interviews, and an unloaded handgun was discovered in the Defendant's truck. Johnson noted that the handgun was legally possessed, and the shotgun found in the house was not illegal either. He took statements from a victim, A.G., on August 17 and 21, 2009, which were not recorded. TBI Special Agent Michael Smith, a polygraph examiner, conducted polygraph tests on the Defendant on August 18. After setting up his equipment, he read the consent form to the Defendant, who chose not to have the tests recorded. Smith conducted a pretest interview lasting approximately one hour, during which he noted the Defendant's neurological condition, Tourette Syndrome, which could affect test results. There were no issues during the examination despite the Defendant's condition. The Defendant underwent two separate examinations for two victims, each involving nine questions. After the tests, the Defendant expressed a desire to provide a truthful statement regarding his actions, admitting to being a situational offender, recognizing wrongdoing, and acting impulsively. The Defendant expressed a desire to speak with his mother and a lawyer but shortly after indicated he was willing to accept responsibility for his actions. He acknowledged not wanting to continue his current behavior and expressed remorse, stating he felt he could not control it, clarified his sexual orientation, and mentioned having a girlfriend. Special Agent Smith noted that the Defendant's mention of a lawyer raised concerns that he might seek legal counsel, but the Defendant subsequently began to make admissions and eventually confessed. During cross-examination, it was revealed that the Defendant's cell phone was off during the polygraph exam, and there was uncertainty about its placement. M.A.'s mother testified that M.A., aged eleven in July 2009, reported being molested to her on August 14, after learning of the incident from A.G.'s mother. Upon questioning M.A., who initially did not respond, she eventually shared details while waiting at the police station. M.A. was visibly upset during this time. The mother detailed her relationship with the Defendant, whom she had known for a year and who worked as a painter at her workplace. She described their friendship as platonic and recounted social interactions, including shared vacations. When asked about allowing M.A. to stay overnight with the Defendant, she explained that their friendship and trust led her to believe he would care for her daughter responsibly. M.A. believed that A.G.'s mother had permitted A.G. to stay overnight with the Defendant if M.A. was also present. After speaking with A.G.'s mother, M.A. realized they had been misled. M.A.'s mother recalled a phone call on July 22, 2009, when M.A. asked to stay overnight with the Defendant, but she instructed M.A. to return home first. The Defendant drove M.A. home to do her chores, and they left shortly after. M.A.'s mother called the Defendant to check on M.A., who was with him at work the next morning. M.A.'s mother testified that M.A. did not mention any issues regarding the July 22 incident until July 29, when she again asked to spend the night with the Defendant. M.A.'s mother was under the impression that A.G. had permission to stay over and that A.G.'s mother and her boyfriend would also be there. After M.A. returned home to do her chores, the Defendant took both girls out again. M.A.'s mother noted a change in M.A.'s behavior between July 22 and 29, as M.A. was unusually quiet but denied anything was wrong. Despite this change, M.A. did not exhibit fear towards the Defendant and was generally friendly, although she was less so during this period. After a trip to Myrtle Beach, M.A. rode in the Defendant's truck without expressing a desire to switch vehicles. On July 29, M.A. seemed hesitant about staying at the Defendant's house, prompting her mother to have her come home first. M.A. later received a skateboard from the Defendant and other gifts throughout their acquaintance. M.A.'s mother had entrusted the Defendant with M.A.'s care on a few brief occasions prior to July 2009. M.A. herself testified that she had never stayed overnight at the Defendant's before July 22 but was taken home by him after calling her mother for permission. Following her chores, they went shopping together, where the Defendant bought her a skateboard and other items. The Defendant invited M.A. and A.G. into his bedroom, where he introduced them to a game called strip poker, requiring them to remove clothing when they lost. During the game, M.A. became upset and left the room after they were nude, while the Defendant remained partially clothed. He later called them back to the bedroom, insisting they undress under the pretense of showing them something on the computer, despite their reluctance. M.A. noticed firearms in the room but stated the Defendant did not threaten her with them. M.A. described being compelled to lie on the bed, where the Defendant engaged in sexual acts with her, including licking her and penetrating her with his finger. She felt penetration, but he did not fully insert his penis into her. M.A. also observed that the Defendant masturbated and ejaculated onto her foot. After the incident, she and A.G. locked themselves in another room and did not report the events due to fear, especially after the Defendant instructed them not to tell their mothers. Later, during a church outing, the Defendant attempted to take them back to his house, where similar incidents occurred, including more sexual contact. M.A. did not disclose the events until A.G. mentioned them to her, prompting her mother to take her to the police station, where she reported the incidents and identified evidence from the Defendant's bedroom. M.A. testified on cross-examination that she had visited the Defendant's house multiple times before July 22, 2009, and confirmed she never saw him point or pick up guns at A.G. or herself on either July 22 or 29. She admitted her initial police statement omitted details from her testimony and acknowledged feeling scared during the first interview, although she was unsure who frightened her. M.A. stated she would not seek a ride with someone she feared, yet she traveled to Myrtle Beach with the Defendant at his brother's request, indicating she was not afraid of him. During her second police interview, she confirmed that she and A.G. had used the Defendant's computer while he folded clothes, and despite her testimony about not looking at the computer that day, she maintained it was accurate. M.A. recounted an incident where the Defendant attempted to penetrate her, clarifying that while he touched her, he did not penetrate her anus. She stated she did not witness any inappropriate actions towards A.G. on July 22 and expressed confusion about why she previously reported otherwise. M.A. felt pressured during her police interactions and was unsure if she had intended to please her mother and the police with her statements. She recognized inconsistencies in her statements regarding the Defendant's actions, admitting she did not disclose everything she experienced, including kissing. On redirect examination, M.A. described her emotional state during her first police interview, stating she was upset and scared. She confirmed differences in the lengths of her statements and that she had not communicated with A.G. between her two interviews. A.G.'s mother testified about her employment as the assistant manager of their apartment complex, where she lived with A.G., who was nine years old at the time, and noted her acquaintance with M.A.'s mother for about six months. M.A.’s mother worked as a housekeeper at the apartment complex for two months, while A.G.’s mother’s boyfriend, Richie, was employed there as a maintenance worker. A.G.’s mother had known the Defendant, a painter at the complex for three to four months, and they had been roommates with Richie until about a month before July. A.G. had visited the Defendant’s house several times, but A.G.’s mother did not recall A.G. going anywhere with him before July 22. On July 22 and 29, 2009, A.G. sought permission to attend church in Lewisburg with the Defendant and M.A., which was granted after A.G.’s mother spoke with the Defendant about taking M.A.’s mother home from work first. A.G. returned home when the Defendant reported for work at 7:30 a.m. on July 30, and did not mention any incident. On July 29, A.G. expressed a desire to go to church with the Defendant and M.A. again, but A.G.’s mother wanted to confirm with M.A.’s mother first, which she could not do before M.A.’s mother left. A.G.’s mother believed A.G. would spend the night at M.A.’s house, but later learned that A.G. actually stayed at the Defendant’s house. A.G.’s mother discovered this discrepancy a few days later and spoke to M.A.’s mother about it. She noted that A.G. and M.A. did not communicate between July 29 and when the matter was reported to the police. Under cross-examination, A.G.’s mother denied that the incidents involving the Defendant were revealed after A.G. was caught “abusing” another child, asserting that any conflicting hospital report was incorrect. A.G. told her about the sexual contact incident on August 12. A.G.’s mother reflected on her lack of urgency in contacting M.A.’s mother after seeing them leave together, indicating she assumed it was acceptable for A.G. to stay overnight. Following July 29, A.G. showed no signs of fear or avoidance of the Defendant. A.G. was apprehensive about discussing the incidents, fearing her mother’s reaction. The individual did not recall if she reprimanded A.G. regarding certain incidents, which came to light after a report about another child. She denied informing personnel at Our Kids Clinic that A.G. was involved in inappropriate behavior, stating instead that it was another child. The individual asserted that A.G. was never caught in such acts and that the clinic's records were erroneous. She acknowledged A.G.'s difficulty speaking to the police on August 17 and mentioned having to leave the room during questioning. A.G.'s mother testified that the Defendant stayed overnight at her apartment on August 12, 2009, and that A.G. made allegations about that night to Williamson County authorities, although she was unaware of arrests or charges being filed over a year later. A.G., then nine, recounted events from July 22, 2009, when she and M.A. attended church with the Defendant. Afterward, they went to Dollar Tree, where the Defendant purchased items for them. At his home, the Defendant introduced them to strip poker, leading to A.G. and M.A. removing some clothing. Following this, the Defendant showed them explicit videos and instructed them to undress, despite their reluctance. A.G. described the Defendant touching and penetrating her, and also attempting to do the same with M.A. She noted the presence of firearms in the room, which the Defendant did not threaten her with. A.G. recounted that after the incident, they made chicken nuggets, went to bed in a separate room to avoid the Defendant, and were taken home the next day. The testimony reveals that A.G. alleged the Defendant instructed her and M.A. not to disclose any incidents of sexual misconduct, particularly to their parents. On July 29, 2009, the Defendant took A.G. and M.A. to church before suggesting they spend the night at his house instead of M.A.'s. A.G. recounted being called into the bedroom, where the Defendant directed them to undress. She described various sexual acts, including the Defendant touching her and penetrating her with his finger and tongue, and compelling her to perform oral sex. A.G. also stated that the Defendant taught her how to put a condom on him and made her engage in sexual acts while he masturbated, culminating in him ejaculating on M.A. Afterward, they watched television, and the Defendant remained silent for the rest of the evening. The next day, he bought gifts for both girls and again instructed them not to tell their parents. A.G. eventually confided in her mother shortly after her birthday on August 12. During cross-examination, A.G. admitted to misleading an interviewer about prior incidents due to embarrassment, clarified that the Defendant's threats were implied through the presence of guns, and acknowledged inconsistencies in her statements, particularly regarding whether any incidents occurred at the Defendant's house. Martha Lampley testified as a custodian of hospital records for A.G. and M.A., indicating that examinations could neither confirm nor eliminate the occurrence of sexual contact. Detective James Johnson later testified about his interview with A.G. and documented her allegations. A.G. reported to Detective Johnson that a second incident involving the Defendant occurred two weeks after the first, specifically on the last Wednesday of August. She recounted that the Defendant instructed both her and M.A. to enter the living room, where she sat on the couch, and M.A. on a chair, and then the Defendant told her to undress. During the investigation, Detective Johnson recorded A.G.’s allegations on August 21, 2009, which did not include any claims of the Defendant placing his penis near her mouth. Although A.G. was asked to read and sign her statements, Detective Johnson later admitted uncertainty about whether she actually did so. He acknowledged a discrepancy regarding the date of the second incident, which was inaccurately noted as August 29, 2009, instead of the correct date of July 29, 2009. The jury ultimately convicted the Defendant of multiple counts, including nine counts of child rape, fourteen counts of aggravated sexual battery, and one count of exhibiting harmful material to a minor, resulting in a fifty-year sentence. On appeal, the Defendant challenged the sufficiency of the evidence, with the State asserting it was adequate. The court found the evidence insufficient to support one count of aggravated sexual battery but adequate for the other convictions. The appeal's review standard is whether any rational jury could find the essential elements of the crime beyond a reasonable doubt, without reweighing evidence or credibility, which lies with the jury. The definitions of harmful material and child rape were cited, with specific counts of rape detailed, including incidents involving A.G. and M.A. on July 22, 2009. Count 7 involves the digital penetration of M.A. on July 22, 2009, while Count 11 pertains to penile penetration of M.A. on the same date. Counts 14 and 16 involve digital penetration and cunnilingus of A.G., respectively, on July 29, 2009, with Count 18 concerning cunnilingus with M.A. on the same date. Additional counts detail various forms of sexual contact involving both victims on July 22 and July 29, 2009, including touching with hands, mouth, and penis, as well as the touching of intimate areas. The legal definition of aggravated sexual battery includes unlawful sexual contact with a victim under 13 years of age, encompassing intentional touching of intimate parts for sexual arousal or gratification. The defendant was convicted of fourteen counts of aggravated sexual battery based on the testimonies of the victims. The defendant contends that the evidence is insufficient, primarily relying on the victims' testimonies while disputing the admissibility of his statements due to alleged illegal procurement. He highlights the lack of medical or DNA evidence to support the claims and questions the victims' credibility regarding their return to his residence post-alleged assaults. The court, however, finds the evidence sufficient to uphold all convictions except for Count 26, where the testimony indicated insufficient evidence to sustain that particular charge; thus, the conviction for Count 26 is vacated and dismissed. The defendant also challenges the denial of his motion to suppress pretrial statements, claiming the trial court erred. However, the court concludes that the trial court acted correctly, as the defendant did not make a clear request for an attorney during the proceedings, and the suppression motion was properly denied following a detailed hearing. On August 17, 2009, an officer interviewed the Defendant at his residence, assisted by Detective Johnson. A third officer and Assistant District Attorney General Eddie Barnard joined later. The interview lasted about 1.5 hours within a total visit of 3.5 to 4 hours, during which a search of the residence was conducted. The Defendant and his mother requested a polygraph test, scheduled for the following morning, August 18, at approximately 10:30 or 11:00 a.m. They did not inquire about the duration of the stay at the police station or the necessity for the Defendant to attend alone. On August 18, the Defendant arrived at the police station between 10:30 and 11:00 a.m. Detective Braden described the station's layout, noting the division between public and secured areas. The interview room had a one-way window, was closed during the interview, and lacked recording devices; however, audio recorders were available in the police department. The lobby contained basic amenities for visitors. Detective Braden, dressed in plain clothes with a badge and firearm, briefly spoke to the Defendant, providing directions and information about the polygraph setup. He initially expected Agent Smith, the polygraph examiner, to arrive by 11:00 a.m. but later learned of a delay until noon. The Defendant was eventually escorted to the interview room after Agent Smith arrived and set up the necessary equipment. The Defendant was searched before entering a secured area, and he had the opportunity to see the code entered into the door's keypad. There was an assumption that the Defendant turned off his cell phone and placed it in his pocket; if it had been with him during the interview, it would have been confiscated upon his custody between 5:30 and 6:00 p.m. Detective Braden testified that he was present with Agent Smith and the Defendant while completing rights waiver and polygraph consent forms, after which Agent Smith and the Defendant were alone in the room. The Defendant indicated he did not want the polygraph recording. Detective Braden was unaware of how the polygraph was documented, as Agent Smith managed that process, and he noted that there was no recording equipment present when the consent was reviewed. The Defendant did not inquire about the recording setup or its duration and marked “no” on the form regarding recording the examination. The form was signed at 12:11 p.m., but the start time for the polygraph was unclear to Detective Braden, who left the room until 3:15 or 3:30 p.m. He observed the polygraph through a one-way window without clear audio. The Defendant left the room for breaks unaccompanied. Upon Detective Braden's return, Agent Smith discussed the polygraph results with the Defendant, indicating deception and explaining offender types. The Defendant acknowledged wrongdoing and expressed a desire to consult with his mother or a lawyer but resumed the conversation afterward. Agent Smith informed the Defendant he could leave and that his statements were voluntary. The Defendant contended that the truth would emerge and that the victims would not conceal it. Detective Braden confirmed that the Defendant understood his rights, reviewed the rights waiver with him again at 4:47 p.m., and the Defendant signed it without requesting an attorney. Detective Braden denied that anyone coerced the Defendant into waiving his rights, stating the Defendant continued to speak voluntarily, leading to a request to record the interview, which the Defendant agreed to after another rights review. The Defendant made only one reference to needing to consult a mother and a lawyer during his interactions with Detective Braden. Detective Braden observed the Defendant exhibiting "tics or jerks" and suspected Tourette Syndrome, although he could not confirm if the Defendant disclosed any mental disorder. When reviewing the rights waiver form, the Defendant claimed he was not on medication or under a doctor's care and denied having any mental or emotional problems. Detective Braden conducted a detailed review of the Miranda waiver, which the Defendant acknowledged understanding and initialed after reviewing it himself. The process took approximately ten to fifteen minutes. The Defendant provided a recorded statement, which was transcribed by Detective Braden, who had the Defendant verify and initial the written version. Detective Braden noted that the Defendant's confession comprised both recorded and written statements, and clarified that the Defendant was not in custody until after his confession. Although the Defendant was told he could leave after stating he was a situational sexual offender, he was not allowed to leave after giving his recorded statement. Detective Braden intentionally withheld information about the presence of defense counsel to maintain the Defendant's focus. During the interview, the Defendant had opportunities to leave the secured area, as there were no physical barriers preventing him from exiting. The interview room was sizable, equipped with furniture and amenities for the interview process. Detective Braden was assigned to the case on August 14, 2009, and first contacted the Defendant on August 17, 2009, following reports of the Defendant burning incriminating materials in his yard. Debbie Harris, the Defendant's mother, met with law enforcement officers outside her residence, informing them that the Defendant was in Franklin and denying any recent burning activity. The officers observed an old burn pile. Ms. Harris did not disclose that the Defendant had recently undergone a voice stress analysis regarding allegations of child sex abuse, a fact learned by the officers only after the Defendant returned home. After discussing with Ms. Harris, the officers left but saw the Defendant's truck returning as they departed. They subsequently met with the district attorney and police chief, deciding to return to the Defendant’s house for an interview around 2:00 p.m. Upon arrival, the Defendant allowed the officers inside. Detective Braden informed the Defendant that they were investigating allegations of sexual assault against two victims. The Defendant acknowledged previous accusations and mentioned that he had just passed a voice stress analysis at the Franklin Police Department, which he claimed cleared him. The Defendant agreed to speak with the officers, was advised of his Miranda rights, and signed the waiver after confirming he was not under the influence of drugs, alcohol, or suffering from any mental health issues. Detective Braden indicated that the Defendant was not in custody during this process, and there were no signs that he misunderstood his rights. The interview lasted one and a half hours, during which the Defendant stated the victims, aged ten and eleven, had spent the night at his house several times in the past month. He recounted an incident where he found the victims playing strip poker, with one being naked and the other in underwear, which he felt was inappropriate. The Defendant did not inform their parents about the situation. When questioned about condoms, he suggested the victims might have discovered them in his nightstand and claimed the victims acted inappropriately, asserting they should be held accountable. He also mentioned that one victim had previously seen him nude and that he had bought items for them at Walmart. The Defendant said his last sexual relationship was 14 to 15 months prior and indicated that he used the condoms for masturbation, expressing reluctance to discuss this in front of his mother, despite her absence during that part of the questioning. Detective Braden testified regarding the events surrounding the Defendant's consent to search and discussions about a polygraph examination. During the interview, the Defendant's mother frequently entered the house. The Defendant signed a consent to search form dated August 17, 2009, at 3:09 p.m., after a rights waiver form was signed earlier that day at 2:00 p.m. The search of the residence yielded items including bedding, a computer, and condoms from the Defendant's bedroom, and a second consent form was obtained specifically for the computer and related files. The Defendant expressed interest in taking a polygraph examination after passing a voice stress analysis and learning about the allegations against him. He mentioned this at least three times prior to the arrival of the assistant district attorney (ADA), who reiterated the Defendant's rights upon arrival and stayed for about 35 minutes. The Defendant and his mother encouraged him to take the polygraph, believing it would help clear his name. Detective Braden informed the Defendant that a polygraph was scheduled for August 18, 2009, at 11:00 a.m. On the day of the polygraph, the Defendant arrived at the police station around 10:45 a.m. and did not show signs of dissatisfaction while waiting. Detective Braden, who had no contact with the Defendant until noon, later took him to the interview room where Agent Smith reviewed the consent to polygraph form with the Defendant. Both the Defendant and Agent Smith signed the form, with Detective Braden signing as a witness, and it was dated August 18, 2009, at 12:11 p.m. Agent Smith reviewed the Miranda waiver with the Defendant for the third time in twenty-four hours, and the Defendant signed the waiver at 12:18 p.m., witnessed by Agent Smith and Detective Braden. After signing, Detective Braden observed the Defendant during a polygraph examination through a one-way window. During breaks, he informed the Defendant about restrooms and a water fountain, asserting that the Defendant was not in custody when he visited the lobby alone. Following the polygraph, Agent Smith indicated to the Defendant that he had shown "strong deception," and explained concepts related to sexual offenders. Detective Braden noted that the Defendant did not demand a lawyer, and his mention of consulting a lawyer was casual and not a direct request. Agent Smith clarified that the Defendant's statements were voluntary and that he was free to leave, even moving aside to facilitate the Defendant's exit. The Defendant expressed belief that the victims could not conceal their story and affirmed his understanding of his rights when asked by Agent Smith. The Defendant then admitted to sexually touching the victims and consented to have his statement recorded. After re-reviewing his Miranda rights, the Defendant signed the waiver again, and the recorded statement was entered as evidence. Detective Braden stated that the Defendant was in custody after this recorded statement, which concluded around 5:20 p.m. A written statement followed, completed around 5:40 p.m., which the Defendant reviewed and signed around 5:50 or 5:55 p.m. At 5:48 p.m., defense counsel arrived at the police station, after the Defendant's statement but while he was reviewing it. Detective Braden indicated that the Defendant had not yet been formally charged at that time. Defense counsel spent fifteen to twenty minutes in the interview room and inquired about charges upon leaving, to which Detective Braden confirmed that charges would be filed. After the meeting, the Defendant was taken to Marshall County jail and charged around 6:32 p.m. Detective Braden stated he was instructed not to arrest the Defendant on the day of the polygraph to allow for further investigation. He indicated that after the Defendant provided a detailed account, he did not believe the Defendant was free to leave. Although the Defendant's statement was written, Braden was unsure if it was signed when he learned that counsel was in the lobby. TBI Special Agent Michael Smith, a certified polygraph examiner, testified that he scheduled a polygraph examination for the Defendant on August 18, 2009, at 11:00 a.m., but arrived late due to heavy traffic, around 12:00 p.m. Detective Braden brought the Defendant to the interview room, where Smith prepared the polygraph equipment and began the pretest interview. During this time, Braden was present for ten to fifteen minutes to witness the signing of consent and rights waiver forms. Smith confirmed that the Defendant signed the consent form, noting the time as 12:11 p.m., and that the Defendant did not want the polygraph recorded. He also reviewed the Miranda rights waiver with the Defendant, which was completed at 12:18 p.m. Smith further conducted a suitability assessment, gathering background information to evaluate the Defendant’s competency to undergo the polygraph. The Defendant reported his birth date and address, mentioned passing a voice stress analysis, and provided details about his education and family background. He disclosed having Tourette Syndrome, which he stated did not affect his intelligence, and confirmed he had not consumed drugs, alcohol, or tobacco in the last twenty-four hours. After the assessment, Smith explained the polygraph technique, reviewed the case file, and confirmed that the Defendant denied the allegations. He also explained procedural testing instructions and took a break from 1:15 to 1:30 while continuing to set up the equipment. Agent Smith testified that following the Defendant's break, they entered the in-test phase, conducting two series of tests for two victims, resulting in three charts for each. The first test ended at 2:14 p.m., after which they took a break. The second test concluded at 2:41 p.m., leading to another break from 2:45 to 3:05 p.m., during which Agent Smith printed and analyzed the charts. The Defendant returned at 3:05 p.m. and signed the polygraph report, at which point Detective Braden also entered the room. During the post-test interview, Agent Smith informed the Defendant that the test indicated deception and expressed a strong belief in the Defendant's likelihood of having committed the offenses described by the victims. He discussed the distinctions between situational and preferential pedophiles, with the Defendant identifying as a situational offender. The Defendant acknowledged his actions were wrong, showed remorse, and expressed a desire to speak to his mother and a lawyer. Agent Smith clarified that the Defendant was not under arrest, that the door was unlocked, and he was free to leave or consult legal counsel. Despite this, the Defendant voluntarily began to speak, expressing readiness to accept responsibility for his actions and detailing his sexual encounters with the victims, M.A. and A.G., both occurring in July 2009 after church. The interview concluded around 4:45 p.m., with Detective Braden obtaining a written statement and a recorded interview from the Defendant. Detective Braden informed the Defendant of his rights, with Agent Smith present intermittently during the recorded and written statements, concluding around 5:45 to 6:00 p.m. During cross-examination, Agent Smith confirmed that defense counsel arrived at the police station before he departed, but there was a delay before counsel was allowed to see the Defendant, who had to finish his statement first. Agent Smith advised the Defendant to tell the truth to resolve the issue but did not promise that doing so would prevent further legal action or discuss potential jail time. He noted that the Defendant had eaten in the late afternoon, possibly during the confession recording. On redirect, Agent Smith clarified that he did not suggest the Defendant would avoid jail or receive a reduced sentence for cooperating. Detective Johnson received a call at 5:48 p.m. regarding defense counsel's attempts to reach the Defendant but did not enter the interview room to avoid disruption. He communicated counsel's presence to Detective Braden after the interview concluded, but could not recall if he mentioned it sooner. He received subsequent calls at 5:58 p.m. and 6:05 p.m. about counsel wanting to see the Defendant but did not recall any prior discussions about delaying counsel's access until after the interview. Debbie Stewart Harris, the Defendant's mother, testified that she arrived late with lunch around 3:30 p.m. and remained at the police station. The Defendant stated he arrived around 11:00 a.m. for a polygraph examination, agreed to take it to prove his innocence, and was informed by Detective Braden that Agent Smith would be late. After reviewing and signing the polygraph consent and Miranda rights waivers with Agent Smith, he expressed concerns about his Tourette Syndrome affecting the test but was reassured it would be fine. The Defendant testified about his experience during police questioning, detailing that he underwent two examinations with breaks in between, during which he left the interview room several times, escorted by Detective Braden. He clarified that he did not roam the police station alone and noted the presence of Detective Braden during his restroom breaks, including a specific instance before the polygraph where he was asked to wash his hands. Post-polygraph, Agent Smith informed him of high signs of deception and discussed offender types, leading the Defendant to identify himself as a situational offender. After expressing a desire to consult his mother and an attorney, he felt pressured by Detective Braden, who indicated that it would look unfavorable if he did not speak immediately. Despite reiterating his wish to consult with legal counsel, the officers continued to persuade him to talk. The Defendant recounted an incident where he attempted to use his cell phone to contact his mother but was thwarted by Detective Braden, who moved the phone out of reach. He felt this was an effort to prevent him from making the call. After the interview and before meeting with his attorney, he was not allowed access to the food brought by his mother. He stated he was unaware that his attorney was waiting in the lobby until he saw them in the interview room and would have preferred to consult with them beforehand. He emphasized that earlier in the day, he was told he was free to leave, but this changed following the polygraph results when questioning intensified, and they did not inform him he could leave after he requested to speak with his mother and attorney. The Defendant was informed that polygraph examinations were typically not recorded, but recording could be arranged if time allowed. After waiting a long time, he opted not to have the polygraph recorded. During cross-examination, he admitted to agreeing to take the polygraph on August 17, 2009, but did not repeatedly mention it. He had one and a half years of post-high school education, changed his major to criminal justice, and was familiar with polygraphs and voice stress analysis tests. He acknowledged that taking the polygraph was voluntary and believed he would pass. The Defendant indicated he had learned about Miranda rights in college and had previously studied them eight years prior. He worked as a correctional officer but resigned due to Tourette Syndrome, which he claimed affected his ability to think clearly under pressure. He recounted undergoing two days of interrogation at different police departments, confessing at the end of the second day due to police persuasion and intimidation. He alleged that the police did not record his interview to hide information, asserting that a recording would have confirmed his multiple requests for an attorney. He explained that he did not request an attorney during the recorded statement because he was fatigued and had already repeated his story several times. The Defendant admitted to providing details that the officers sought in order to expedite the situation, feeling ashamed of being at the police station and concerned about his mother's reaction. He believed confessing might lead to probation or leniency from the assistant district attorney. He described intimidation tactics used by the officers, including Detective Braden's suggestion that he might avoid prison through therapy if he confessed, and Agent Smith's warning that he would face prison if he was categorized as a preferential offender. The Defendant claimed that the assistant district attorney implied he would face a long prison sentence and high bond if he did not confess. He disputed the officers' claims that he was informed he could leave after expressing a desire to speak with his mother or a lawyer, and he stated he requested a lawyer three times within fifteen to twenty minutes after the polygraph results were explained to him. The Defendant expressed a desire to consult his mother and an attorney multiple times during an interview with law enforcement, indicating he felt pressured and unable to leave. He cited stress from threats made against him by his roommate's mother's boyfriend. Detective Braden and Agent Smith, who testified for the State, denied making statements to the Defendant that suggested leniency for confessing or that the assistant district attorney was adversarial. They claimed the Defendant did not make a clear request for an attorney. The trial court concluded that the Defendant did not unequivocally ask for legal representation, noted that his rights were adequately explained, and determined that his Sixth Amendment right to counsel was not violated since he had access to counsel before any formal adversarial proceedings began. The court recorded that the Defendant began providing a written statement at 5:20 p.m., with counsel arriving shortly before and permitted to see him soon after. The United States and Tennessee Constitutions protect suspects from self-incrimination, requiring that if a suspect is in custody and subjected to interrogation, they must be informed of their Fifth Amendment rights before any confession can be admissible in court. This includes the right to counsel, which must be respected during questioning. A suspect may waive their Miranda rights, but law enforcement must cease questioning if the suspect clearly requests an attorney. If a suspect initially waives their right to counsel and later claims to have revoked that waiver, the burden is on them to prove the revocation. Appellate courts can review evidence from both suppression hearings and trials to assess whether a pretrial motion to suppress was properly denied, with a trial court's factual findings being conclusive unless contradicted by the evidence. The application of law to the facts is reviewed de novo, and the determination of whether a request for an attorney was unequivocal is also a mixed question of law and fact subject to de novo review. In the case discussed, the defendant voluntarily went to the police station for a polygraph test and was there for hours, during which he was informed of his rights and waived them in writing. After the polygraph, he expressed a potential desire to consult with his mother or a lawyer but continued to make incriminating statements. The trial court credited the officers’ testimony, concluding that the defendant's statement did not constitute a clear invocation of his right to counsel, as it lacked the definitiveness required to halt questioning. After the Defendant mentioned contacting his mother or an attorney, he initiated further discussions with the police, not the other way around. Citing State v. Koffman, it is established that once a defendant invokes the right to counsel, questioning must cease, although the defendant can reopen questioning. The presence of an attorney at the police station, who wished to speak with the Defendant, was not communicated to him, and since the Defendant waived his right to counsel without seeking to revoke it, his actions are consistent with valid waiver principles. The U.S. Supreme Court in Moran v. Burbine ruled that police did not violate a suspect's Fifth Amendment rights by not informing him about an attorney's call, as external events unknown to the suspect do not affect the understanding of relinquishing constitutional rights. The court also noted that no Sixth Amendment violation occurred because that right attaches only after formal charges are initiated. Furthermore, the court rejected claims of a violation of fundamental fairness under the Fourteenth Amendment. Consequently, the trial court's denial of the motion to suppress was deemed appropriate. The Defendant also argued that the trial court erred by not merging certain aggravated sexual battery convictions, asserting that there should only be one conviction per victim for each date. The State contended that this issue was not raised in the motion for a new trial and therefore is waived. However, the remedy for double jeopardy violations is not a new trial but rather the dismissal of charges or merging convictions. The Defendant did not waive the issue, arguing for the merger of multiple counts related to physical contact with victims M.A. and A.G. on specified dates. The double jeopardy clauses in the U.S. and Tennessee Constitutions prohibit an individual from being tried or punished more than once for the same offense. These protections include the prevention of a second prosecution after acquittal or conviction and protection against multiple punishments for a single offense. The evaluation of double jeopardy issues, especially regarding multiplicity of offenses, is based on the specific facts of each case. The Tennessee Supreme Court's decision in State v. Watkins applied the Blockburger test to assess whether double jeopardy protections allow for multiple convictions from offenses committed prior to that ruling. Watkins did not establish a new constitutional right but refined the analytical framework for assessing violations of existing rights. The analysis of double jeopardy claims generally falls into two categories: unit-of-prosecution claims, which address multiple convictions under the same statute, and multiple description claims. In unit-of-prosecution claims, courts must determine the legislative intent regarding what constitutes a single unit of conduct, applying the rule of lenity to resolve ambiguities against multiple prosecutions. The aggravated sexual battery statute defines unlawful sexual contact, and each distinct act of touching constitutes a separate offense, particularly when different intimate parts are involved. The legislature intended for each instance of touching an intimate part to be treated as a separate violation of the statute. In the case involving M.A. on July 22, 2009, the Defendant faces four counts of aggravated sexual battery for distinct acts: touching M.A.'s genital area with his mouth and/or tongue, with his hand and/or finger, with his penis, and touching her buttocks. All acts occurred in the Defendant's bedroom, with M.A. testifying to specific actions taken by the Defendant during the incident. The evidence supports that these constituted four separate instances of aggravated sexual battery, and the Defendant's convictions will not be merged. In a separate incident with A.G. on July 29, 2009, three counts of aggravated sexual battery were established, where the Defendant touched A.G.’s genital area and made her perform sexual acts. Each count represented distinct actions occurring at different times, confirming three separate instances of aggravated sexual battery, with no merger of convictions allowed. Regarding another incident with M.A. on July 29, 2009, five counts of aggravated sexual battery were alleged, although the court found insufficient evidence for one count. The remaining four counts were supported by testimony and admissions from the Defendant regarding his actions, which were also distinct and sequential, establishing four separate instances of aggravated sexual battery, again with no allowance for merger of these convictions. Lastly, although not raised by the parties, the court considered whether eight aggravated sexual battery convictions should have been merged with eight counts of rape of a child, addressing this as a plain error under T.R.A.P. 36(b). The case involves multiple counts of aggravated sexual battery occurring in conjunction with charges of rape of a child, all involving the same victims and incidents. Two principal constitutional concerns are raised: double jeopardy and due process. Under the double jeopardy analysis, the relevant framework has shifted from State v. Denton to Watkins, a decision made by the supreme court while the Defendant's appeal was pending. The Watkins case establishes that the Blockburger test is the standard for assessing whether multiple convictions under different statutes constitute the same offense. This test determines if each statute requires proof of an additional fact not required by the other. Initially, the court must ascertain if the convictions stem from the same act or transaction. The specific convictions under scrutiny include various counts of aggravated sexual battery and child rape, all involving distinct acts such as cunnilingus and digital penetration, occurring on July 22 and July 29. The counts are as follows: 1. Count 4 (aggravated sexual battery of A.G.) and Count 3 (rape of a child). 2. Count 6 (aggravated sexual battery of M.A.) and Count 5 (rape of a child). 3. Count 8 (aggravated sexual battery of M.A.) and Count 7 (rape of a child). 4. Count 12 (aggravated sexual battery of M.A.) and Count 11 (rape of a child). 5. Count 15 (aggravated sexual battery of A.G.) and Count 14 (rape of a child). 6. Count 17 (aggravated sexual battery of A.G.) and Count 16 (rape of a child). 7. Count 19 (aggravated sexual battery of M.A.) and Count 18 (rape of a child). 8. Count 21 (aggravated sexual battery of M.A.) and Count 20 (rape of a child). The court will apply the Watkins analysis to assess the double jeopardy implications of these overlapping charges. The defendant's touching of the victims was preliminary to penetration, with both actions occurring simultaneously and involving the same body parts. Each grouping of convictions pertains to the same act or transaction, necessitating an analysis under the Blockburger/Watkins framework. If the elements of the offenses are identical or one is a lesser included offense of the other, multiple convictions are presumed unintended by the General Assembly, violating double jeopardy principles. Rape of a child involves unlawful sexual penetration of a victim aged over three but under thirteen, while aggravated sexual battery entails unlawful sexual contact with a victim under thirteen. Sexual penetration is defined as bodily intrusion, irrespective of intent for sexual arousal, while sexual contact denotes touching for sexual gratification without intrusion. The elements of aggravated sexual battery and rape of a child are determined not to be the same. Furthermore, Tennessee law does not classify aggravated sexual battery as a lesser included offense of rape of a child, nor does it explicitly state that aggravated sexual battery involving a child is a lesser included offense of rape of a child. Although both aggravated rape and rape of a child involve unlawful sexual penetration, the distinction lies in the specific qualifiers pertaining to age and circumstance. The relevant statutes, effective from July 1, 2009, explicitly exclude aggravated sexual battery as a lesser included offense of rape of a child, and it is imperative to adhere to these legislative directives, applying the law as it was at the time of the offenses. Aggravated sexual battery and rape of a child are distinct offenses, allowing for multiple punishments without violating double jeopardy principles. However, due process may restrict multiple convictions if one offense is essentially incidental to another. The Tennessee Supreme Court established that if one act directly facilitates another, such as applying lubricant for penetration, dual convictions would be barred. Conversely, if an act is merely preparatory to sexual arousal, separate convictions can be upheld. Relevant factors in determining the nature of the conduct include temporal proximity, spatial proximity, intervening events, sequence of acts, and the defendant's intent. In this case, the aggravated sexual battery offenses were deemed facilitative of the corresponding rape of a child offenses. As such, due process mandates the merging of the following counts: Count 4 (aggravated sexual battery involving A.G.) with Count 3 (rape of a child involving cunnilingus on A.G.), and Count 6 (aggravated sexual battery involving M.A.) with Count 5 (rape of a child involving cunnilingus on M.A.), as both involved the same conduct, body parts, and timing. Count 8, which charges aggravated sexual battery for the Defendant touching M.A.’s genital area, should merge with Count 7, which charges rape of a child involving digital penetration of M.A. on July 22, as the evidence indicates that the touching was incidental to the penetration. Similarly, Count 12 for aggravated sexual battery involving the Defendant touching M.A.’s vagina with his penis should merge with Count 11 for penile penetration of M.A.’s vagina on the same date, as both actions reflect the same offense. Count 15, alleging aggravated sexual battery through touching A.G.’s genital area, should merge with Count 14 for rape involving digital penetration of A.G. on July 29, and Count 17 for aggravated sexual battery involving oral contact with A.G. should merge with Count 16 for cunnilingus, as both sets of charges represent the same conduct. Likewise, Count 19 for aggravated sexual battery involving M.A. should merge with Count 18 for cunnilingus, as both pertain to the same actions. Count 21, which involves touching M.A.’s genital area, should merge with Count 20 for digital penetration on July 29 for the same reasons. The trial court's failure to merge these convictions constitutes plain error, necessitating the vacating of the judgments for these counts and the entry of a single judgment for each pair, reflecting the merger. Regarding the Defendant's fifty-year sentence, he argues it is excessive, but the State claims he waived this issue due to insufficient argumentation in his brief. The Tennessee Supreme Court’s standard in State v. Bise states that sentences within the appropriate statutory range are reviewed for abuse of discretion with a presumption of reasonableness. The trial court is required to consider all evidence presented at the trial and sentencing hearing in determining the appropriate sentence. The presentence report encompasses a variety of factors relevant to sentencing, including the principles of sentencing, the nature of the criminal conduct, and any mitigating or enhancement factors. It includes statistical data on sentencing practices for similar offenses in Tennessee, statements made by the defendant, and considerations of rehabilitation potential. Under T.C.A. 40-35-102, 103, 210, challenges to the trial court's application of these factors are reviewed for abuse of discretion. A presumption of reasonableness applies to within-range sentencing that adheres to the Sentencing Act, and misapplication of factors does not invalidate a sentence unless it represents a complete departure from statutory guidelines. At the sentencing hearing, Charles Brandon discussed the defendant's background, revealing he is a 28-year-old with no prior criminal record but facing a pending charge of sexual exploitation of a minor. The report indicated disciplinary issues during pretrial detention, educational achievements, and a diagnosis of mild Tourette Syndrome. Testimonies from family and friends highlighted the defendant's character, his helpfulness, and a history of bullying due to his condition, which they believed made the allegations surprising and inconsistent with his behavior. The defendant's grandmother and sister described him as kind and industrious, while a long-time friend expressed no concerns about his interactions with children. The defendant expressed surprise at the allegations and claimed she would not have allowed her children around him had she had concerns. The trial court, in imposing sentences, considered the evidence, presentence report, arguments, and statutory factors relating to sentencing and rehabilitation potential. The court identified no applicable statutory mitigating factors despite the defendant's Tourette Syndrome diagnosis, which it concluded did not influence the crimes. The enhancement factors included the defendant's prior criminal history related to marijuana use and the possession of a firearm during the offenses, evidenced by the victims' fear of a handgun present. The court noted the defendant abused a position of trust, having been a family friend who used his connections to access and mislead the victims and their mothers regarding consent for overnight stays. The trial court sentenced the defendant to the maximum of twelve years for each Class B felony, to be served at 100% as a violent offender. For the child rape convictions, twenty-five-year sentences were imposed, also to be served at 100%, as mandated by law. The sentence for exhibiting harmful material to a minor was for the statutory minimum of eleven months and twenty-nine days. The court imposed partially consecutive sentences based on multiple statutory offenses involving sexual abuse of minors, considering factors such as the number of victims and offenses, the relationship to the victims, and the duration of the abuse. The state argued that the defendant waived appellate review due to an inadequate brief lacking specific record citations and failing to identify errors in the trial court's ruling. The court agreed, stating there was no justiciable issue regarding the statutory lengths of sentences for the child rape and harmful material offenses. The defendant also did not present compelling arguments against the twelve-year sentences for aggravated sexual battery. The effective sentence totaled fifty years, with sentences served concurrently for each victim but consecutively across victims. The trial court's sentencing decision is upheld despite doubts regarding the applicability of enhancement factor (9) related to the Defendant's use of a firearm, as misapplication of an enhancement factor does not constitute an abuse of discretion when supported by other valid reasons consistent with sentencing principles. The court considered relevant statutory guidelines and highlighted the Defendant’s abuse of trust in committing the crimes, justifying a twelve-year sentence for each aggravated sexual battery conviction. Consecutive sentencing, at the trial court's discretion, is permissible under Tennessee law if certain criteria are met, including a history of extensive criminal activity or multiple offenses involving sexual abuse of minors. The trial court found that the Defendant's current offenses warranted partial consecutive sentencing due to multiple victims and the aggravating circumstances of their relationships. Although the extensive criminal activity classification typically refers to prior criminal behavior, the trial court's rulings were supported by evidence. Additionally, a clerical error regarding the sentencing of Count 6 was noted, which mistakenly indicated concurrent sentencing with Counts 6-8 instead of with Counts 5, 7, and 8. This issue was resolved by vacating the judgment for Count 6 and merging it with Count 5. Overall, the judgments for several counts were affirmed, while others were vacated and ordered for merger in accordance with the court's findings.