State of Tennessee v. Simon Dean Porter ( 2021 )

10/26/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 10, 2021 Session
STATE OF TENNESSEE v. SIMON DEAN PORTER
Appeal from the Circuit Court for Lawrence County
No. 35602 Stella L. Hargrove, Judge
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No. M2020-00860-CCA-R3-CD
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A Lawrence County Grand Jury indicted the Defendant, Simon Dean Porter, for aggravated
rape of a child and aggravated child abuse of his sixteen-month-old son. A jury convicted
the Defendant as charged, and the trial court imposed an effective sentence of eighty-five
years. See Tenn. Code Ann. §§ 39-13-531, 39-15-402(a)(1). On appeal, the Defendant
argues: (1) the trial court erred in admitting deoxyribonucleic acid (DNA) proof
connecting him to these offenses; (2) the trial court abused its discretion in admitting
photographs of the victim’s injuries; (3) the evidence is insufficient to sustain his
convictions; and (4) the trial court abused its discretion in imposing consecutive
sentencing. We affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and J. ROSS DYER, JJ., joined.
Brandon E. White (on appeal), Columbia, Tennessee; Travis Jones, District Public
Defender; and William M. Harris and Robert H. Stovall (at trial), Assistant District Public
Defenders, for the Defendant-Appellant, Simon Dean Porter.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Emily Crafton,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
The charges in this case arose after the Defendant sodomized the victim, his sixteen-
month-old son, M.B.,1 which resulted in the victim’s severe anal and rectal injuries and
broken legs. The Defendant was the sole male caregiver during the relevant time period,
1
It is the policy of this court to refer to minor victims by their initials only.
and a diaper containing a high concentration of semen and the victim’s blood was found in
the Defendant’s outdoor garbage can. DNA testing matched the semen in the diaper to the
Defendant. After his first interview with police on the night the victim was hospitalized,
the Defendant fled to Alabama. The Defendant was arrested there while walking down a
road, and the Defendant’s truck was later found hidden in the woods nearby.
On January 30, 2020, the Defendant filed a motion to suppress his statements to
police as well as a motion to exclude or limit photographs of the victim’s injuries.
Following a hearing, the trial court suppressed the statements made by the Defendant
during his police interviews based on the totality of the circumstances, particularly given
that the Defendant told the officers he could not read or write well, that the Defendant had
only completed the eleventh grade in special education classes, and that the officers never
informed the Defendant of his charges. The trial court also determined that five of the
fifteen photographs were admissible because they assisted the jury in understanding the
“full impact and full injuries” sustained by the victim and because “their probative value
substantially outweigh[ed] their prejudicial effect.”
On February 10, 2020, during a hearing immediately prior to the start of trial, the
defense argued2 a motion to suppress/exclude DNA evidence and related expert testimony.
After listening to the recordings of the Defendant’s statements, hearing testimony from
Detective Blake Grooms, and considering the parties’ arguments, the trial court held that
the Defendant’s consent for the buccal swab of his DNA was not freely and voluntarily
given. Nevertheless, the trial court denied the motion to suppress, finding that “pursuant
to Nix v[.] Williams, [467 U.S. 431 (1984),] the DNA would have been eventually
discovered by legal authority, statutory authority, pursuant to 40-35-321(e).”
Trial. Lura McCandless, who routinely cared for the victim and his sister at the
time of this incident, testified that she had fostered hundreds of children over the years.
She stated that the Defendant and his wife and co-defendant, Danielle Bowen, were the
children’s biological parents and that she knew the Defendant because she had fostered and
later adopted the Defendant’s two eldest children. As of the date of trial, McCandless had
also adopted the victim and his sister.
McCandless allowed the Defendant and Bowen to have overnight visitation with the
victim and his sister “once or twice a month” while the Defendant and Bowen worked on
their relationship. From June 2018 to November 2018, the Defendant and Bowen never
2
Following a remand by this court, the trial court entered an order stating that trial counsel had
argued, but inadvertently never filed, this suppression motion. The trial court allowed a copy of this
suppression motion to be filed in the Lawrence County Circuit Court Clerk’s office and directed the clerk’s
office to prepare a supplemental appellate record including this motion and transmit it to the Appellate
Court Clerk’s Office.
-2-
kept the children for more than a single night per visit until the weekend of November 10,
2018.
McCandless said that on Saturday, November 10, 2018, the Defendant and Bowen
picked up the victim and his sister. She expected them to return the children the next
morning, and when that did not happen, she contacted Bowen, who stated that she was off
work the next day and wanted to keep them a second night. McCandless asked whether
the children were okay, because she had seen Bowen’s Facebook post that the victim had
fallen in the bathtub on Saturday night, and Bowen stated that the children were fine but
that the victim “was constipated” and “had some trouble with some stools.” Bowen never
indicated that the victim had bled or was hurt. McCandless acknowledged that constipation
had been a problem for the victim that they treated with MiraLAX. She noted that the
Defendant would occasionally leave a pink stain on his diaper from going to the bathroom,
and his bowel movements would sometimes look like “little pebbles,” but nothing worse.
McCandless stated that Bowen did not return the children on Monday. When
McCandless talked to her, Bowen “promised everything was fine” and asked to keep them
“one more night” because they were “having a good time.” Bowen also told her that the
victim’s constipation was “all better,” and McCandless agreed to pick up the children on
Tuesday at noon.
When McCandless came by to get both children on Tuesday, she said the victim
was “clinging and whiny” and did “not want[] to sit down in the car seat.” She later
determined that she needed to change the victim’s diaper, and the victim began “screaming
and crying and throwing a fit” because “[h]e didn’t want to be changed.” McCandless
described what she observed when she removed the victim’s diaper:
[Being] in child care as many years as I have, I’ve seen a lot of
horrendous diaper rashes where the babies[’] bottoms would bleed[,] but I’ve
never seen a child’s little bottom ripped open like it was. And I knew the
moment I saw it that something horrible had happened to him.
McCandless immediately called Bowen to ask what happened, and Bowen replied
that the victim had been constipated. McCandless said she knew what constipation looked
like after taking care of hundreds of children and accused Bowen and the Defendant of
hurting the victim. McCandless stated that she and her daughter were taking the victim to
the hospital in Lawrenceburg. When Bowen said that she and the Defendant would meet
them at the hospital, McCandless told her to “not come near this child[,] and I mean it.”
Upon arriving at the hospital, McCandless told the hospital staff that she believed the
victim “had been molested” because “his little rectum was ripped wide open.”
-3-
McCandless said that when the Defendant and Bowen walked into the hospital, she
“put [her] hand up like that[,]” and the Defendant “backed off, he knew.” Although Bowen
came in and tried to take the victim away, McCandless and her daughter prevented her
from taking the victim. McCandless said that she and Bowen argued for a while, but the
Defendant never asked her any questions.
The hospital in Lawrenceburg immediately sent the victim and McCandless to
Vanderbilt, where a rape kit was performed and doctors operated on the victim’s anus and
rectum that same night. McCandless was later informed that both of the victim’s legs were
broken at the kneecaps. She said that while the victim was with her, she never saw him
fall. McCandless admitted that the victim was walking the morning after his surgery. She
acknowledged that the fractures in the victim’s legs did not require treatment, but she said
these fractures required several follow-up appointments, so doctors could determine
whether they were healing properly.
Sylvia Lindsay, a nurse at the Lawrenceburg hospital, testified that the victim
refused to cooperate with a physical examination and did not want anyone to touch him.
She said the victim had suffered “obvious trauma” to his rectal area, which included a
“large tear, lots of bruising . . . . it looked awful.” A physician agreed that the victim’s
injuries were serious and that the victim needed to go to Vanderbilt Hospital for surgery.
Lindsay stated that she had never observed a pediatric injury like the victim’s and that it
was “heart wrenching.” Lindsay said McCandless informed her that the victim’s parents
were in the waiting room, so she called the police. When McCandless told her that Bowen
had suggested that the victim’s injuries were from constipation, Lindsay knew the victim’s
injuries were not from “anything similar to that.”
Leanna Dugan, a nurse practitioner at Our Kids Center, was accepted as an expert
in the field of child sexual abuse. She explained that Our Kids Center was an outpatient
clinic of the Nashville General Hospital where children are examined when there are
concerns of sexual abuse. Dugan stated that she examined the victim during the very early
hours of November 14, 2019, prior to his surgery at Vanderbilt and discovered that the
victim had sustained “significant injuries to his anus” that made the victim not want to
comply with an examination. She described the victim’s injuries, stating:
[There was] a lot of bruising around [the victim’s] anus.
Typically, . . . everybody has muscles on their anus that create[] those
little wrinkles that you see around the bottom to kind of keep it tight. And
[the victim’s] muscles were not working properly so everything was very
relaxed and kind of open.
-4-
But the most impressive or significant injury was a very deep cut or
laceration to his bottom. So if you are looking at him with him on his back
and legs up, it was kind of down at—if it was like a clock, like at the seven
o’clock position there was a significant tear.
She noted that the victim also had a “shallow laceration” at the “twelve o-clock position.”
Dugan said she had seen such a severe injury only a couple of other times. She described
the victim’s larger laceration as a “deep . . . penetrating trauma” that extended as far inside
the victim’s rectum as she could see and that she was unable to see where the trauma ended.
Dugan identified five photographs she took of the victim’s injuries and used all of
these photographs to demonstrate and explain the victim’s injuries, including the multiple
areas of bruising, the relaxed muscles of his anus that allowed the inside of the rectum to
be visible, the deep laceration that extended into the rectum, and the shallow laceration
around the anus. Dugan said that although it was common for toddlers to become
constipated and sustain a small slit to the anus, which would result in some minor bleeding,
she said that constipation could not have caused the victim’s severe injuries. She said that
while the victim’s injuries were rare, it was extremely rare that such injuries would require
surgery. She noted that she collected a buccal swab from the victim as well as perianal
swabs for the rape kit. Dugan opined that the victim’s injuries, which included “the
bruising, the lack of muscle tone, and the laceration[s], combined, [were] consistent with
penetrating trauma.” However, she acknowledged that she could not determine the cause
of the penetrating trauma.
Dr. Heather Williams, a pediatrician with the child maltreatment team of Vanderbilt
Children’s Hospital, was accepted as an expert in the field of child abuse pediatrics. She
testified that she had examined hundreds of children for physical and sexual abuse and
rarely saw such serious injuries as the victim’s. She said the victim’s case was different
because child sexual abuse victims typically did not require surgery. Dr. Williams stated
that a skeletal survey showed the victim “had factures on the ends of both of his femurs
near his knees.” She explained how such fractures, which she described as “corner”
fractures, could have been inflicted, stating:
[T]hose fractures would either be from a forceful yanking and twisting of the
legs or, when we see it with abusive head trauma in children, it’s from the
forceful flailing of the arms and legs because it’s at that part of the bone, and
these kiddos are . . . no more than about a year, year and a half old, that’s
really susceptible because of that rapid growth [there].
-5-
Dr. Williams stated that factures like the ones sustained by the victim were “very
specific for abuse” unless there was “a very clear accidental way that it happened,” such as
forcefully yanking a baby out during a caesarian delivery. She opined that the victim’s
anal trauma was consistent with sexual abuse and that the “corner” fractures were
consistent with physical abuse, absent a “very clear, exceedingly rare accidental history[.]”
She acknowledged that it was difficult to determine the date the victim’s corner fractures
occurred, given that they were located at the growth plate. However, she disagreed that
these fractures were a month old because they had completely healed two weeks after she
first observed them. Dr. Williams said it was not unusual that the victim could still walk
because these fractures were “subtle” fractures in an area that was growing rapidly. She
asserted that a fall in the bathtub could not cause these fractures, and there was nothing in
the victim’s medical history that would explain them. Regarding the victim’s rectal
injuries, Dr. Williams opined that constipation could not account for these injuries. She
said that “a laceration that requires surgical repair would not be consistent with passing a
hard stool or constipation” but would be consistent with “anal penetrated trauma.” Dr.
Williams concluded that the victim had suffered both sexual abuse and physical abuse.
Officer William Jewett with the Lawrenceburg Police Department testified that
when he responded to the hospital in Lawrenceburg, he was informed that the victim had
“severe rectal tearing.” He approached the Defendant and Bowen in the hospital parking
lot. The Defendant asked no questions about what was happening as Officer Jewett
escorted him back inside the hospital. When asked if the Defendant was upset or angry at
the time, Officer Jewett replied, “[T]he little contact I had with him, he didn’t seem to be
anything.”
Officer Jewett said that once Detective Blake Grooms arrived at the hospital, they
escorted the Defendant and Bowen to the police station where interviews were conducted.
Although Officer Jewett could not recall whether the Defendant and Bowen were separated
on their way to the police station, he said that once they arrived at the station, the Defendant
and Bowen were either separated or supervised by an officer. At the conclusion of these
interviews, Officer Jewett took Bowen and the Defendant back to the hospital to get their
car and then followed them to their apartment, where detectives searched the home. Officer
Jewett said that after the police completed this search, an officer told him to stand with the
Defendant’s and Bowen’s outdoor garbage can until the police could return with a larger
vehicle to transport the garbage can to the station.
Detective Blake Grooms with the Lawrenceburg Police Department testified that he
responded to a call at the hospital that the victim had sustained “some type of violent
penetration.” He said that while he was at the hospital, neither the Defendant nor Bowen
asked him about what was happening or what was wrong with the victim; instead, they
were not “talking or saying anything.” Detective Grooms said that later that night he
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obtained a buccal swab from the Defendant and sent it to the Tennessee Bureau of
Investigation (TBI) so agents could develop a DNA profile for the Defendant and compare
it to DNA found on items collected as evidence.
Detective Grooms said that on November 14, 2018, he obtained consent from the
Defendant and Bowen to search their apartment. During this search, the Defendant’s
underwear and some small, child-sized pants were found, although no blood or semen was
discovered on either of these items. After searching this apartment, Detective Grooms
noticed the Defendant’s and Bowen’s city issued garbage can at “the back of the complex,
right next to the sidewalk[.]” He believed this particular garbage can belonged to the
Defendant and Bowen because it was “in line with their back porch, like the other trash
cans” for the apartments at the complex. He acknowledged that the garbage can was not
sitting at the curb; instead, it was positioned on the ground between the sidewalk and the
back porch. Detective Grooms carried the garbage can out to the street and asked Officer
Jewett to stay with it so no evidence would go missing while he retrieved a vehicle large
enough to carry the garbage can back to the station. Once Detective Grooms transported
the garbage can to the police station, he took it to a closet, sealed the crack under the door,
zip-tied the door handles to the closet, and wrote his name on the evidence tape that sealed
the door to the closet. A day later, he sealed the top of the garbage can with a plastic bag
and re-secured it in the closet.
On November 26, 2018, Detective Grooms went through the contents of a garbage
can and found a diaper “with a large reddish brown streak . . . that appeared to be blood”
as well as a wipe that appeared to have blood on it. The diaper and the wipe were admitted
into evidence.3 He said that both of these items were soaking wet. He called the TBI, who
told him to store the diaper and wipe in an area that was warm and had airflow so these
items could dry. After complying with these instructions, he sent the diaper and wipe to
the TBI to be tested for blood and semen on November 29, 2018. He also picked up the
victim’s rape kit from Leanna Dugan and sent it to the TBI.
Detective Grooms said that no condoms or condom wrappers were in the garbage
can, which he had been looking for, given the sexual nature of the offense. He said the
3
The defense objected to admission of the diaper and wipe at trial. During a hearing outside the
presence of the jury, the trial court stated that it did not recall an objection to the consent to search the home.
The State asserted that the parties had already discussed the fact that Bowen had also signed the consent
form for the search of the home, which included “[a]ll items and property about [the home’s] premises,”
and defense counsel clarified that he was not objecting to everything taken from the home and asked to
withdraw that objection. Instead, defense counsel explained that he was objecting to the admission of the
Defendant’s buccal swab; he argued that because “[t]he wipe[] and the diaper w[ere] where [the police] got
. . . the semen to compare [to the Defendant’s] buccal swab[,]” admission of the diaper and the wipe “would
be objectionable to that extent.” The trial court overruled this objection.
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trash can did contain a pair of jeans with a stain that appeared to be blood, which he
collected as evidence.
Detective Grooms said that at noon on November 14, 2018, he obtained an arrest
warrant for the Defendant, and when he attempted to arrest the Defendant pursuant to this
warrant, it became obvious that the Defendant had fled. After an alert was given, the
Defendant was arrested in Scottsboro, Alabama, on November 18, 2018, although the
Defendant’s truck was not located until later. Detective Grooms said he eliminated Bowen
as a suspect on the aggravated rape of a child charge, but he did charge Bowen with
aggravated child abuse and neglect.
Detective Rick Bailey with the Lawrenceburg Police Department testified that he
and Detective Grooms found several diapers in the trash can. He stated that the diaper that
appeared to have blood on it was rolled up and taped into a ball, like most of the other
diapers. He said he did not find any condoms in the trash can.
James Sentell, a surveyor in Jackson County, Alabama, testified that while he was
surveying some property in that area, he discovered the Defendant’s truck “backed off in
the bri[a]rs on the side of a logging road” a quarter of a mile from the road. He noted that
the truck was not easy to see, and he missed it at first. He also observed several takeout
food containers scattered around the truck, as if someone had spent some time there.
Jackson County Sheriff’s Deputy Jimmy Jones testified that he responded to James
Sentell’s call about the hidden truck. He noted that there was garbage lying on the ground
around the truck, and he could tell it was not just abandoned because there were fresh marks
where it appeared someone had attempted to back it out, and the truck had gotten stuck.
Deputy Jones said the truck was found approximately two hours from Lawrenceburg,
Tennessee. Because mail inside the truck listed a Lawrence County address, he called the
Lawrence County Sheriff’s Department, who determined that the truck belonged to the
Defendant.
Agent Beth Sulpy, a forensic scientist at the TBI crime lab, was accepted as an
expert in the field of forensic serology testing. She stated that her testing revealed the
presence of blood and a very high concentration of semen on the diaper. She explained
that she did not test the wipe or the child’s pants because the diaper tested positive for
blood and semen. In addition, she said the Defendant’s jeans did not indicate the presence
of blood, and the Defendant’s underwear did not indicate the presence of blood or semen.
Agent Sulpy acknowledged that bodily fluids can transfer between items if they are in
contact; however, she did not find it likely that the semen could have been transferred to
something else because “there was quite a bit of concentration of semen in the diaper.”
She stated it was “possible” that semen from the wipe could have transferred to the diaper
-8-
if they were found together in a garbage can that was wet inside. Nevertheless, she found
this scenario unlikely because of the very high concentration of semen in the diaper. Agent
Sulpy said that a transfer of sperm from one item to another would be countable,
“somewhere in the 10 to 20 range, if even that.” However, she said that with the diaper
she tested, “[I]t was almost uncountable the number of sperm cells that I saw . . . across the
entire slide.”
Agent Militza Kennedy, a forensic scientist at the TBI crime lab, was accepted as
an expert in the field of forensic biology and DNA analysis. She testified that the
Defendant was the major contributor for the DNA in the sperm cells in the diaper, and there
was insufficient information to match the other contributor, whose DNA was not
necessarily associated with the sperm. However, Agent Kennedy said the victim’s perianal
swabs tested negative for the presence of semen. She said her findings were consistent
with a person ejaculating into the rectum or anus of a child and then placing a diaper on
the child. In addition, she said that the victim was the major contributor of the blood in the
diaper.
The Defendant, Simon Dean Porter, testified that he was thirty-five years old and
had completed the eleventh grade in special education classes. He said he worked in
carpentry and plumbing and that Danielle Bowen, his wife, was the mother of both the
victim and his younger daughter. He admitted that he was the only one who cared for the
children while Bowen was at work the weekend of November 10, 2018.
The Defendant said that on the night of Saturday, November 10, 2018, he and
Bowen had sex after they put the children to bed in their separate bedrooms. He said that
he used a condom and that Bowen took the used condom into the bathroom. He did not
know what she did with the condom but acknowledged there was a trash can in the
bathroom.
The Defendant stated that on Sunday, November 11, 2018, while Bowen was
working, the victim began crying and seemed to be straining to make a bowel movement
because he was constipated. The Defendant said he removed the victim’s diaper and saw
a partial stool coming out, so he inserted his finger into the victim’s anus about halfway to
remove the stool. The Defendant stated that he did not notice any injuries to the victim’s
rectal area because he was “not paying attention,” given that the victim was “crying” and
“moving around.” However, the Defendant acknowledged seeing some blood on his finger
when he removed the victim’s stool. He said that he “was afraid [he] might have
accidentally ripped his anal butt, anal cavity[,]” although he did not do a close examination
of the victim. The Defendant then wiped the victim’s rear, put the wipe into the diaper,
and put the diaper into the trash can in the bathroom. He said that when Bowen returned
from work, he told her that the victim passed some stool and there was a little blood in his
-9-
stool, but he never told her that he had used his finger to remove the stool. He noted that
he and Bowen stayed with the children on Monday and Tuesday, and McCandless came to
pick up the children on Tuesday.
The Defendant said that he became afraid when the police interviewed him about
the victim on November 13, 2018. He stated that he went to Alabama to work for Bart
Lane’s Plumbing, left his truck at a jobsite, and was later arrested while walking to get
something to eat. He claimed he had no idea how his truck ended up in a remote area of
the woods because he left his truck, which was having mechanical problems, at a job site,
although he was unable to explain where this job site was located. He claimed that
someone must have stolen his truck, although he admitted that he never called the police
to report it stolen. The Defendant acknowledged that he had not issued a subpoena for his
employer Bart Lane; however, he claimed that neither of his attorneys ever asked him why
he was in Alabama. He claimed it was merely a coincidence that he left town the day after
the victim was seriously injured and he was interviewed by police.
The Defendant said he told the police in Alabama that he was walking to his aunt’s
house when he was arrested, but the officer never asked him why he was in Alabama in the
first place, which was to work for Bart Lane Plumbing. He said he did not know that the
police were looking for him. Although the Defendant admitted that he had a cell phone
with him, he maintained that it did not work, and he denied disabling it to avoid being
captured. The Defendant also denied that Lura McCandless was fostering his children
because he and his wife could not stop using drugs. Instead, he claimed that McCandless
was caring for his children because his mental disability kept him from keeping a job or
handling his finances.
The Defendant acknowledged that he was the only adult present when the victim
had his constipation problem. He admitted that although they normally gave the victim
MiraLAX to treat his constipation, and he had some MiraLAX available, he put his finger
into the victim’s rectum to remove the stool instead. The Defendant claimed that he never
meant to rip the victim’s anus and asserted that it was an accident. He denied grabbing and
spreading the victim’s legs apart. The Defendant also denied anally raping and ejaculating
into the victim, although he was unable to explain how his semen was found in the victim’s
diaper.
Sentencing. At the Defendant’s sentencing hearing, the presentence investigation
report was admitted. Proof was offered showing that the Defendant had three prior
misdemeanor convictions for theft, misappropriation of rental property, and a seatbelt
violation and that the Defendant had violated his probation for the theft conviction and had
his probation revoked. The Defendant self-reported that his mental and physical health
was “fair” but that he was mentally disabled and had a learning disability. The Defendant
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also stated that he had been diagnosed with bipolar disorder but was not taking any
medications for this condition. He said he received Social Security disability and worked
a couple of jobs to supplement his income. Only some of the Defendant’s employment
history was verified. The Defendant declined to provide a statement regarding his
convictions in this case. The Defendant’s “Strong R” assessment put him at a low risk to
reoffend.
Lura McCandless testified that the victim, who was now three years old, was “scared
of everyone” and “[w]hen he comes in contact with men, he goes into fight or flight mode,
even the people [who] have been around him his whole life.” She also said although the
victim had been to therapy, he was “angry all the time[,]” and would fight, hit, and bite.
She said the victim had trouble sleeping and often had nightmares that caused him to
scream in his sleep. McCandless acknowledged that the victim’s physical injuries had
healed; however, she asserted that the victim would be “traumatized, terrorized for the rest
of his life because of what was done to him.” She also said that if the surgery had not been
successful, the victim would have had to wear a colostomy bag for the remainder of his
life. In response to questioning by the trial court, McCandless asserted that the victim’s
rectum had been “ripped open” and that it looked like “a blooming flower.” She said the
victim had to go to many follow-up appointments at Vanderbilt hospital to monitor whether
the fractured bones in his legs were healing.
Detective Grooms testified that this was the “worst case [of] child sexual abuse” he
had seen. He stated, “I am afraid that [the Defendant] will re-offend if he is a free man,
based on what he has done to his own son.”
Gabriele Dixon, a witness for the defense, testified she met the Defendant when he
was homeless and wanted to improve his life, and with her help, the Defendant began going
to church and was making better choices. She said the Defendant was a very hard worker
and helped people without asking for anything in return. Dixon admitted that she had
known the Defendant for only a year and a half prior to the crimes in this case. Although
Dixon claimed that she had participated in only two video visitations with the Defendant,
jail records showed that she had taken part in at least fifteen video visitations with him.
Nevertheless, Dixon denied any romantic relationship with the Defendant.
After hearing arguments from the State and the defense, the trial court applied and
gave great weight to seven enhancement factors with regard to the aggravated rape of a
child conviction, namely that the victim was particularly vulnerable because of age or
physical or mental disability; that the defendant treated, or allowed a victim to be treated,
with exceptional cruelty during the commission of the offense; that the personal injuries
inflicted upon the victim were particularly great; that the offense involved a victim and was
committed to gratify the defendant’s desire for pleasure or excitement; that the defendant
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had no hesitation about committing a crime when the risk to human life was high; that the
actions of the defendant resulted in serious bodily injury to the victim; and that the
defendant abused a position of private trust in a manner that significantly facilitated the
commission or the fulfillment of the offense. See Tenn. Code Ann. §§ 40-35-114(4), (5),
(6), (7), (10), (12), (14). The trial court found that no mitigating factors applied. See Tenn.
Code Ann. § 40-35-113. The Defendant chose not to make an allocution in this case.
The trial court reviewed and summarized the trial testimony given by Nurse Sylvia
Lindsay, Nurse Practitioner Leanna Dugan, and Dr. Heather Williams regarding the
severity of the victim’s injuries. The court also noted the testimony from Agent Beth Sulpy
and Agent Kennedy, who testified about the presence of semen in the victim’s diaper and
how this semen matched the Defendant’s DNA. The trial court found that the Defendant
was “100 percent not credible” and that the Defendant had failed to accept responsibility
for the serious injuries, both physical and mental, that he caused his son in this case. The
trial court recognized that the victim was “unable to summon help,” that the Defendant had
caused horrendous injuries, including “a tear so deep that it required surgery on this baby
in addition to fracturing both of his [legs],” and that the Defendant had “ejaculated in his
baby[,]” which the Defendant did to “gratify his desire for pleasure or excitement.” The
court noted that although the Defendant “might have a learning disability,” the Defendant
knew right from wrong, and there was no basis for arguing that the Defendant had
diminished capacity. The trial court said it was “appalled” by the “Strong R” assessment
that the Defendant was a low risk to reoffend. After noting that ninety-five percent of the
information considered in the “Strong R” assessment was provided by the Defendant, the
trial court dismissed each one of the findings made in the assessment before sentencing the
Defendant.
As to whether the sentences should be served consecutively, the trial court stated:
The Court finds . . . that under [Code section] 40-35-115[(b)](4), this
defendant is a violent and dangerous offender, he is a dangerous offender
whose behavior indicates little or no regard for human life and no hesitation
about committing a crime in which the risk to human life is high.
Further, the Court finds that all of the three following factors apply:
A, the circumstances surrounding the commission of the offense are
aggravated; B, the confinement for an extended period of time is necessary
to protect society from this defendant’s unwillingness to lead a productive
life and his resort to criminal activity in furtherance of an anti-societal
lifestyle, and; C, the aggregate length of the sentences reasonably relates to
the offense[s] of which the defendant stands convicted.
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Also, the [State v. ]Wilkerson[, 905 S.W.2d 933 (Tenn. 1995),] factors
I need to put on the record for consecutive sentencing. The Court finds that
they apply in that . . . [n]umber one, an extended sentence is necessary to
protect society against further criminal conduct of this defendant; and,
number two, consecutive sentencing is reasonably related to the severity of
the offenses committed.
The trial court then sentenced the Defendant as a Range III, persistent offender to
sixty years at one hundred percent for the aggravated rape of a child conviction and as a
Range I, standard offender to twenty-five years at one hundred percent for the aggravated
child abuse conviction and ordered these sentences served consecutively to one another for
an effective sentence of eighty-five years. See Tenn. Code Ann. §§ 39-13-531, 39-15-
402(a)(1), 40-35-501(i) (Supp. 2018). The judgments of conviction were entered on May
15, 2020. The Defendant then timely filed a motion for new trial, arguing that the evidence
was insufficient to sustain his convictions; that the trial court erred in admitting DNA
evidence, lab tests, and expert testimony pertaining to the DNA evidence; that the trial
court erred in admitting photographs of the victim’s injuries over the defense’s objections;
and that the trial court’s imposition of an eighty-five-year sentence was excessive.
Following the trial court’s denial of this motion, the Defendant timely filed a notice of
appeal.
ANALYSIS
I. DNA Proof and Related Expert Testimony. The Defendant argues that the
trial court erred in admitting DNA evidence at trial after determining that it would have
been inevitably discovered pursuant to Code section 40-35-321(e). He also contends that
this statute is facially unconstitutional and unconstitutional as applied to him. Finally, the
Defendant asserts that the inevitable discovery doctrine does not apply because although
the State could have obtained his DNA via a search warrant prior to trial, there was no
evidence the State would have done this. The Defendant maintains that the trial court’s
error in failing to suppress this evidence constituted a non-structural constitutional error
that requires reversal unless the State establishes beyond a reasonable doubt that the error
is harmless. See State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008).
In response, the State argues that the Defendant waived the constitutional challenge
to Code section 40-35-321(e) by failing to include it in his motion for new trial and that
the Defendant cannot establish plain error because this statute has not been previously
found unconstitutional. It asserts that because the Defendant cannot successfully challenge
- 13 -
the constitutionality of Code section 40-35-321(e), the State was entitled to take the
Defendant’s DNA pursuant to that statute, thereby curing any deficiencies regarding the
DNA swabbing. In addition, the State contends that the Defendant’s DNA would have
been inevitably taken via a search warrant, if the Defendant had not consented to a DNA
sample during his interview with police. Lastly, the State maintains that even if there were
some error regarding the Defendant’s DNA swab, this error was “harmless, given the
amount of concentrated semen found in the victim’s diaper and the undisputed fact that the
[D]efendant was the sole male caregiver in the victim’s home.” We conclude that the DNA
evidence would have been inevitably discovered pursuant to Code section 40-35-321(e).
We also conclude that the Defendant waived any issues regarding Code section 40-35-
321(e)’s alleged unconstitutionality and that he failed to show he is entitled to plain error
relief. Finally, we conclude that the DNA evidence also would have been inevitably
discovered pursuant a search warrant.
Suppression Hearings. Prior to trial, the Defendant filed a motion to suppress his
statements during the police interviews on the basis that they were obtained in violation of
the Fifth Amendment to the United States Constitution and article I, section 7 of the
Tennessee Constitution. At the February 6, 2020 hearing on this motion, the trial court
suppressed the Defendant’s statements based on the totality of the circumstances,
especially given that the Defendant told the officers he could not read or write well, that
the Defendant had only completed the eleventh grade in special education classes, and that
the officers never informed the Defendant of his charges.
Following this ruling, defense counsel argued that because the Defendant requested
an attorney before the police asked him to provide a buccal swab, anything that occurred
after the Defendant invoked his right to counsel, including the collection of the Defendant’s
buccal swab, should be excluded. The State replied that the Defendant had signed a consent
form for the buccal swab, voluntarily providing his DNA sample on November 14, 2018,
and that the Defendant was not arrested until November 18, 2018. The State also asserted
that at the time that this buccal swab was taken, the Defendant was not in custody, and his
Miranda rights4 had already been read to him. The trial court stated that it was going to
reserve ruling on the issue of suppression of the Defendant’s buccal swab and related DNA
evidence until it saw research from both parties on this issue.
On February 10, 2020, during a hearing immediately prior to the start of trial,
defense counsel argued that once the Defendant unequivocally invoked his right to counsel,
all police questioning should have stopped, but it continued in this case, and the Defendant
“was not really given a choice about whether he was going to provide a DNA swab”
because the police told him it was “protocol.” Defense counsel noted that Detective
4
See Miranda v. Arizona, 384 U.S. 436 (1966).
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Grooms completed the consent form while Captain Brent Hunter talked to the Defendant
about unrelated subjects and then the Defendant was handed the form and told to “sign
right here and date it.” Defense counsel argued that because the Defendant made an
unequivocal request for an attorney during his first interview, the Defendant’s buccal swab
collected at the end of the first interview should be suppressed.
In response, the State argued that the first interview, which began late on November
13 and continued into the early hours of November 14, was not a custodial interrogation
and that the Defendant was not under arrest at that time, although the police did read the
Defendant his Miranda rights. It also asserted that the Fifth Amendment does not apply to
consents to search because they are not testimonial in nature and that “whether there was
an earlier Miranda violation [wa]s really irrelevant to the consent issue.” Instead, the State
maintained that the pertinent issue was “whether the consent was freely and voluntarily
[given].” Alternatively, the State argued that even if the trial court found that the
Defendant’s consent was not voluntary, the Defendant’s DNA would have been collected
pursuant to the inevitable discovery doctrine. It noted that after the police discovered the
extensive nature of the victim’s injuries and realized that the Defendant had fled, an arrest
warrant for the Defendant was issued. The State claimed that once the Defendant was
arrested for the aggravated rape of a child offense, then it became mandatory that a DNA
swab from the Defendant be collected pursuant to Code section 40-35-321(e).
At a later hearing outside the presence of the jury but prior to the jury being sworn,
the trial court observed a video recording of the Defendant’s first interview. The State also
presented testimony from Detective Grooms, who said that the recording depicted the
Defendant stating that he wanted an attorney because he was being accused of something
he did not do and that he had only stuck his finger in the victim’s rear to help him go to the
bathroom, which he had mentioned earlier in the interview. Detective Grooms stated that
when he told the Defendant it was “protocol” to collect a DNA swab, he meant that “when
it comes to sexual assault crimes and sexual crimes against children, if you have a suspect
readily available, we need to get a DNA swab to establish a DNA profile to either confirm
or exclude the person we are looking at as a suspect through their DNA.” He said that
individuals who commit certain offenses are “swabbed” when they are arrested or booked
at the jail. Detective Grooms acknowledged that when he collected the Defendant’s swab,
the Defendant had not been arrested. He stated that a few hours after this first interview,
he obtained an arrest warrant for the Defendant for the offense of aggravated rape of a child
and intended to arrest the Defendant for that offense. He stated that he believed that any
person arrested for a major sexual offense is swabbed whenever they go to jail.
Detective Grooms asserted that the Defendant and his wife, Danielle Bowen,
consented to a search of their apartment on November 14, 2018, and the same day, the
police collected the Defendant’s city garbage can, which was sitting along a walkway
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where all the garbage cans for the apartment complex are placed. He took this garbage can
to the police station, where it was sealed with evidence tape and zip-ties and secured in a
closet. He said that it was not until November 26, 2018, when he and another officer
“processed” the garbage can, that they found the bloody diaper and wipe. He agreed that
all the items inside this garbage can were wet and that these items had been sitting inside
the garbage can for twelve days at the police station before the garbage can was actually
searched. Detective Grooms said that because the diaper and the wipe were wet, the TBI
had instructed him to place them in a secured location where they could dry before they
were forwarded for testing. He agreed that if he had not already swabbed the Defendant at
his first interview, he would have been able to obtain a search warrant for the Defendant’s
DNA “[q]uite quickly” once the TBI determined that there was blood and semen in the
diaper.
Detective Grooms acknowledged that during the interview, the Defendant said that
he would take a lie detector test but that he wanted an attorney, too, and Captain Hunter
asked if he was requesting an attorney, and the Defendant replied, “Yes.” Detective
Grooms stated that although he understood the Defendant’s statement to be an unequivocal
request for an attorney, he was unsure whether the Defendant was talking about requesting
an attorney for the lie detector test or requesting an attorney in general. Regarding the
buccal swab, Detective Grooms admitted that he told the Defendant, “We have to have one
so is it okay with you if we knock that out now?” He admitted that he never told the
Defendant that he had a right not to consent to the buccal swab and he never read the
portion of the consent form, which explained that the Defendant had a right to refuse
consent. Detective Grooms also admitted that he simply put the consent form in front of
the Defendant and asked him to sign it. He said that at the time he asked for the Defendant’s
consent to obtain a buccal swab, he did not have any evidence indicating the presence of
DNA. He also said that when the Defendant was brought to the jail following his arrest,
he did not ask the jailers to collect a buccal swab from the Defendant.
Detective Grooms stated that during his investigation he obtained a search warrant
for the Defendant’s truck and cell phone. He acknowledged that he never attempted to
obtain a search warrant for the Defendant’s DNA after he found the diaper on November
26, 2018, in the Defendant’s city garbage can. Although he informed the Defendant of his
Miranda rights prior to the start of the November 13 interview, he did not read the last
paragraph of the form that states, “I have read this statement and I understand what my
rights are . . . ,” because he was afraid the Defendant would not have understood some of
the words in that paragraph, including the word “coercion.” He stated that although the
Defendant was free to go at any time during the first interview on November 13-14, he did
not recall telling him he was free to go and acknowledged that the Defendant and his wife
were separated when they arrived at the police station. Detective Grooms stated that all of
the information he put in the search warrant affidavits for the Defendant’s truck and cell
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phone was still true and that there would be nothing to prevent him from using the same
facts to obtain a search warrant for the Defendant’s DNA today. He said that when he
arrests a person and takes them to the jail, he “leave[s] it up” to the jailers to determine
whether to swab that person. However, he stated that if the jailers had not swabbed the
Defendant in this case, there was nothing preventing the jailers from swabbing the
Defendant right then.
At the conclusion of this testimony, the State, citing State v. Christopher Michael
Hooten, No. M2012-00979-CCA-R3-CD, 2013 WL 5436712 (Tenn. Crim. App. Sept. 27,
2013), argued that the Fifth Amendment and Miranda do not come into play when an
officer asks for a consent to search and that simply because there is a Miranda violation
does not mean that a subsequent consent to search is invalid. The State first asserted that
the buccal swab was obtained with the Defendant’s consent, even though Detective
Grooms had made the consent sound like it was “mandatory” in light of police “procedure.”
However, the trial court held that the Defendant’s consent for the buccal swab had not been
freely and voluntarily given.
The State next maintained that the Defendant’s DNA would have been obtained
under the doctrine of inevitable discovery, either pursuant to Code section 40-35-321(e) or
pursuant to a search warrant following the TBI’s determination that there was semen and
blood on the diaper collected as evidence. Defense counsel replied that Code section 40-
35-321(e) “does not apply in this case because he never made bond” and that “there would
not have been any DNA taken unless he had tried to make bond[,]” in which case his DNA
would have been obtained “before he was released.” Upon hearing this, the State asserted:
[Code section 40-35-321(e)(1)] says the person shall have a biological
specimen taken and . . . that obligation starts on the arresting agency at the
time probable cause is found either by a magistrate or the grand jury.
The part about the Court or the magistrate shall make the provision of
a specimen a condition of the person’s release is a stopgap. In case the
agency hasn’t done it yet, well, ooh, let’s make sure that it’s done. But in
this case, the arresting agency already had [the Defendant’s DNA swab] so
you’ve got that.
And then as I say, the search warrant situation, it’s interesting that the
defense says it’s speculative to think that [Detective] Grooms would have
sought a search warrant after he got this finding from the TBI to get a swab
of this defendant when he got two other [warrants], at least, in this case
already. The one for the phone records and the one for the vehicle and all.
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No evidence that [Detective] Grooms is afraid to get a search warrant
or doesn’t know how to get a search warrant. He had no need until last
Thursday[, when the trial court suppressed the Defendant’s statements from
his interviews], to even believe that he might need a search warrant.
So I think it’s clear that what you would have in this case is inevitable
discovery. Your Honor only has to be convinced by a preponderance of the
evidence that [the Defendant’s DNA inevitably would have been obtained].
And this is actually, as the General points out, it’s even a stronger
situation than normal. It’s not like a search warrant for a house where
evidence . . . by the time we get to get to trial wouldn’t be there, this evidence
is still sitting right there.
This is a mere technicality type argument. The evidence is still right
here, it hasn’t changed. Your Honor could grant [a search warrant] right now
and we could get it sent to the TBI, but that would require a continuance.
The inevitable discovery rule keeps Your Honor from having to do all
of those ridiculous things based on a ridiculous argument.
Defense counsel responded that in order to make Code section 40-35-321(e) constitutional,
you have to “either get consent [for the DNA sample] or you get a search warrant” He
compared this situation to the “DUI cases where we were taking blood samples without
consent[,]” and the United States Supreme Court said, “you got to get a search warrant.”
At the conclusion of the hearing, the trial court “denie[d] the motion to suppress finding
that pursuant to Nix v[.] Williams, [467 U.S. 431 (1984),] the [Defendant’s] DNA would
have been eventually discovered by legal authority, statutory authority, pursuant to 40-35-
321(e).” In denying this motion, the trial court did not make a specific ruling as to the
constitutionality of Code section 40-35-321(e).
Applicable Law. Because the Defendant’s arguments regarding the admission of
the DNA evidence relate to the trial court’s denial of the motion to suppress this evidence,
we will consider the following standards when deciding the issues in this case. When this
court reviews suppression issues, the prevailing party in the trial court “‘is entitled to the
strongest legitimate view of the evidence adduced at the suppression hearing as well as all
reasonable and legitimate inferences that may be drawn from that evidence.’” State v.
Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996)). “‘Questions of credibility of the witnesses, the weight and value of the
evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge
as the trier of fact.’” State v. Hawkins, 519 S.W.3d 1, 32 (Tenn. 2017) (quoting Odom,
- 18 -
928 S.W.2d at 23). A trial court’s findings of fact in a suppression hearing will be upheld,
unless the evidence preponderates against them. Id. (citing State v. Bell, 429 S.W.3d 524,
528 (Tenn. 2014)). However, this court reviews the trial court’s application of the law to
the facts de novo with no presumption of correctness. Id. at 32-33 (citing State v. Walton,
41 S.W.3d 75, 81 (Tenn. 2001)).
Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution protect individuals against unreasonable searches and
seizures. U.S. Const. amend. IV; Tenn. Const. art. I, § 7. Pursuant to the exclusionary
rule, evidence acquired as a direct or indirect result of unconstitutional police conduct will
be suppressed as “fruit” of the initial constitutional violation. Silverthorne Lumber Co. v.
United States, 251 U.S. 385, 391-92 (1920); Wong Sun v. United States, 371 U.S. 471,
484-86 (1963); see State v. Hill, 333 S.W.3d 106, 122-23 (Tenn. Crim. App. 2010). The
reason the exclusionary rule was expanded to include evidence that is “the fruit of unlawful
police conduct” was “to deter police from violations of constitutional and statutory
protections.” Nix, 467 U.S. at 442-43.
The “inevitably discovery doctrine” is an exception to the exclusionary rule that
allows illegally obtained evidence to be admissible if the State can establish that the
evidence in question would have been inevitably discovered by lawful means. Id. at 447-
48; Hill, 333 S.W.3d at 123. Before illegally obtained evidence will be admitted pursuant
to this doctrine, the State must establish “‘first, that certain proper and predictable
investigatory procedures would have been utilized in the case at bar, and second, that those
procedures would have inevitably resulted in the discovery of the evidence in question.’”
State v. Coury, 657 S.W.2d 777, 780 (Tenn. Crim. App. 1983) (quoting Stokes v. State,
423 A.2d 552, 556 (Md. App. 1980)).
“If the prosecution can establish by a preponderance of the evidence that the
information ultimately or inevitably would have been discovered by lawful means[,] then
the deterrence rationale has so little basis that the evidence should be received.” Nix, 467
U.S. at 444 (footnote omitted). The doctrine of inevitable discovery “‘rests upon the
principle that the remedial purposes of the exclusionary rule are not served by suppressing
evidence discovered through a later, lawful seizure that is genuinely independent of an
earlier, tainted one.’” State v. Williamson, 368 S.W.3d 468, 483 (Tenn. 2012) (quoting
Hudson v. Michigan, 547 U.S. 586, 616 (2006) (Breyer, J., dissenting) (citations and
internal quotation marks omitted)); see United States v. Haddix, 239 F.3d 766, 769 (6th
Cir. 2001) (reiterating that “a successful inevitable discovery argument requires the
government to proffer clear evidence of an independent, untainted investigation that
inevitably would have uncovered the same evidence as that discovered through the illegal
search.” (citations and internal quotation marks omitted)). In other words, “[t]he ultimate
test is whether the evidence would have been discovered through an independent, proper
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avenue that comports with the Fourth Amendment.” State v. Scott, 619 S.W.3d 196, 204
(Tenn. 2021). “[I]nevitable discovery involves no speculative elements but focuses on
demonstrated historical facts capable of ready verification or impeachment[.]” Nix, 467
U.S. at 444 n.5. “[W]hen . . . the evidence in question would inevitably have been
discovered without reference to the police error or misconduct, there is no nexus sufficient
to provide a taint[,] and the evidence is admissible.” Id. at 448.
The United States Court of Appeals for the Sixth Circuit has consistently held that
the inevitable discovery doctrine does not apply when law enforcement officers assert that
they had probable cause to obtain a search warrant but failed to do so. See United States
v. Quinney, 583 F.3d 891, 894-95 (6th Cir. 2009); Haddix, 239 F.3d at 768; United States
v. Johnson, 22 F.3d 674, 683-84 (6th Cir. 1994). In Haddix, the Sixth Circuit explained
why the inevitably discovery doctrine cannot apply to the mere assertion of probable cause
in the absence of a magistrate’s determination that probable cause exists:
“Police officers may not, in their zeal to arrest an individual [or conduct a
search], ignore the Fourth Amendment’s warrant requirement merely
because it is inconvenient.” Morgan, 743 F.2d at 1162-63. In this vein, it is
appropriate to stress that the Fourth Amendment requires not merely a police
assessment of probable cause, but the agreement of a “neutral and detached
magistrate.” See Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367,
92 L. Ed. 436 (1948).
Haddix, 239 F.3d at 768. The Haddix court asserted that reliance on the inevitable
discovery doctrine to admit evidence where the police could have obtained a warrant but
failed to do so is “untenable” because it would “‘completely obviate the warrant
requirement[.]’” Id. (quoting Johnson, 22 F.3d at 683-84); see Quinney, 583 F.3d at 894.
A. Inevitable Discovery of DNA Proof Pursuant to Statute. First, the Defendant
argues that his DNA would not have been inevitably discovered pursuant to Code section
40-35-321(e)(1) because that subsection only mandates that persons arrested for a violent
felony provide a biological specimen prior to their release from custody on bond, and he
was never released on bond. The State counters that the trial court’s ruling does not run
afoul of Nix v. Williams, 467 U.S. 431 (1984), State v. Scott, 619 S.W.3d 196 (Tenn.
2021), or Elkins v. United States, 364 U.S. 206 (1960), and that the trial court properly
held that the State was permitted to take the Defendant’s DNA pursuant to Code section
40-35-321(e), regardless of any independent Fourth Amendment violation.
Tennessee Code Annotated section 40-35-321 states, in pertinent part:
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(a) As used in this section, unless the context otherwise requires, “DNA
analysis” means the process through which deoxyribonucleic acid (DNA) in
a human biological specimen is analyzed and compared with DNA from
another biological specimen for identification purposes.
....
(e)(1) When a person is arrested on or after January 1, 2008, for the
commission of a violent felony as defined in subdivision (e)(3), the person
shall have a biological specimen taken for the purpose of DNA analysis to
determine identification characteristics specific to the person as defined in
subsection (a). After a determination by a magistrate or a grand jury that
probable cause exists for the arrest, but prior to the person’s release from
custody, the arresting authority shall take the sample using a buccal swab
collection kit for DNA testing. The biological specimen shall be collected
by the arresting authority in accordance with the uniform procedures
established by the Tennessee bureau of investigation, pursuant to § 38-6-113
and shall be forwarded by the arresting authority to the Tennessee bureau of
investigation, which shall maintain the sample as provided in § 38-6-113.
The court or magistrate shall make the provision of a specimen a condition
of the person’s release on bond or recognizance if bond or recognizance is
granted.
(2) The clerk of the court in which the charges against a person described in
subdivision (e)(1) are disposed of shall notify the Tennessee bureau of
investigation of final disposition of the criminal proceedings. If the charge
for which the sample was taken is dismissed or the defendant is acquitted at
trial, then the bureau shall destroy the sample and all records of the sample;
provided, that there is no other pending qualifying warrant or capias for an
arrest or felony conviction that would otherwise require that the sample
remain in the data bank.
(3) As used in this subsection (e), “violent felony” means:
....
(D) Aggravated child abuse;
....
(J) Rape, aggravated rape, rape of a child or aggravated rape of a child;
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....
Tenn. Code Ann. § 40-35-321(a), (e).
The Defendant maintains that Code section 40-35-321(e) does not require arrestees
to be swabbed while in pretrial confinement. He claims that the second sentence in
subsection (e)(1) qualifies the first sentence in that subsection and should be interpreted to
mean that a DNA sample will be taken only prior to a defendant’s release from custody.
Specifically, he asserts that the qualifying language of “but prior to the person’s release
from custody” is “unambiguous” and “carries a plain meaning.” Accordingly, the
Defendant contends that the trial court erred in finding that his DNA would have been
inevitably discovered pursuant to Code section 40-35-321(e) because “[t]his court must
presume that the Tennessee General Assembly did not intend for a defendant charged with
a “violent felony . . . to be obligated to provide a biological specimen for the purpose of
DNA analysis until and unless the defendant attempts to be released from custody on
bond.”
In reviewing issues of statutory construction, which present questions of law, this
court conducts a de novo review with no presumption of correctness. State v. Welch, 595
S.W.3d 615, 621 (Tenn. 2020) (citing State v. Dycus, 456 S.W.3d 918, 924 (Tenn. 2015)).
“‘The most basic principle of statutory construction is to ascertain and give effect to the
legislative intent without unduly restricting or expanding a statute’s coverage beyond its
intended scope.’” State v. Howard, 504 S.W.3d 260, 269 (Tenn. 2016) (quoting Owens v.
State, 908 S.W.2d 923, 926 (Tenn. 1995)). “We presume that each word in the statute has
‘meaning and purpose, and should be given full effect if so doing does not violate the
obvious intention of the Legislature.’” Powers v. State, 343 S.W.3d 36, 44 (Tenn. 2011)
(quoting Waters v. Farr, 291 S.W.3d 873, 881 (Tenn. 2009)). In construing a particular
statute, Tennessee law requires courts to avoid a construction that leads to absurd results.
Welch, 595 S.W.3d at 621 (citing Tennessean v. Metro. Gov’t of Nashville, 485 S.W.3d
857, 872 (Tenn. 2016)).
“When statutory language is clear and unambiguous, we must apply its plain
meaning in its normal and accepted use, without a forced interpretation that would extend
the meaning of the language and, in that instance, we enforce the language without
reference to the broader statutory intent, legislative history, or other sources.” Carter v.
Bell, 279 S.W.3d 560, 564 (Tenn. 2009). “A statute is ambiguous when ‘the parties derive
different interpretations from the statutory language.’” Welch, 595 S.W.3d at 622 (quoting
Howard, 504 S.W.3d at 270). However, such differing interpretations must be reasonable
before a statute is deemed ambiguous:
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“[T]his proposition does not mean that an ambiguity exists merely because
the parties proffer different interpretations of a statute. A party cannot create
an ambiguity by presenting a nonsensical or clearly erroneous interpretation
of a statute.” In other words, both interpretations must be reasonable in order
for an ambiguity to exist.
State v. Frazier, 558 S.W.3d 145, 152 (Tenn. 2018) (emphasis added) (quoting Powers,
343 S.W.3d at 50 n.20). If, however, the statute is ambiguous, this court “‘may reference
the broader statutory scheme, the history of the legislation, or other sources’ to determine
the statute’s meaning.” Welch, 595 S.W.3d at 622 (quoting Frazier, 558 S.W.3d at 152).
The plain language of Code section 40-35-321(e)(1) states that when a person is
arrested for the commission of a violent felony “the person shall have a biological specimen
taken for the purpose of DNA analysis to determine identification characteristics specific
to the person. . . .” Tenn. Code Ann. § 40-35-321(e)(1). The language in the first sentence
of subsection (e)(1) makes it mandatory for individuals arrested for violent felonies to have
a specimen taken for the purpose of DNA analysis and explains that the purpose of the
DNA analysis is to determine the arrestee’s “identification characteristics.” This sentence
makes it clear that the DNA analysis is for identification purposes, like the process of
fingerprinting a person during the booking process. See Powers, 343 S.W.3d at 45(reiterating that “DNA typing has now replaced digital fingerprinting as the ‘gold standard’
of individualization in forensic science.” (citation and internal quotation marks omitted));
State v. Scarborough, 201 S.W.3d 607, 619 (Tenn. 2006) (emphasizing that DNA analysis
“serves as a form of ‘fingerprinting’ so as to provide a statistically precise method of
identifying a single individual: a method that the subject cannot impugn by altering his or
her appearance” (footnote omitted)); Maryland v. King, 569 U.S. 435, 450-56, 465-66
(2013) (holding that when officers make an arrest supported by probable cause to hold an
individual for a serious offense and they bring the arrestee to the station to be detained in
custody, obtaining and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting
and photographing, a legitimate police booking procedure that is reasonable under Fourth
Amendment) (recognizing that DNA analysis of a cheek swab from arrestees helps (1) the
Government identify who has been arrested and who is being tried; (2) ensure that custody
of arrestee does not create risks for facility staff, the existing detainee population, and for
a new detainee; (3) determine which arrestees would be more inclined to flee; (4) assess
the danger the arrestee poses to the public; and (5) free individuals wrongfully imprisoned
for a crime and apprehend criminals before they commit additional crimes).
The second sentence of (e)(1) states, “After a determination by a magistrate or a
grand jury that probable cause exists for the arrest, but prior to the person’s release from
custody, the arresting authority shall take the sample using a buccal swab collection kit for
DNA testing.” Tenn. Code Ann. § 40-35-321(e)(1). We interpret this sentence, based on
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its plain language, to mean that the arresting authority shall take a buccal swab after the
determination is made that probable cause exists for the arrest but before the individual is
released from custody, not that collection of the sample is contingent on a person’s release
from custody. This interpretation is supported by the last sentence of (e)(1), which
provides, “The court or magistrate shall make the provision of a specimen a condition of
the person’s release on bond or recognizance if bond or recognizance is granted.” Id. This
last sentence recognizes that making the collection of a specimen for DNA analysis a
condition of the persons’ release simply ensures that the “identification characteristics” of
the individual are obtained while that individual is still in custody. Although the Defendant
argues that (e)(1) should be interpreted to mean that a buccal swab may not be taken “until
and unless” the arrestee is released, we believe such an interpretation is “nonsensical” and
unreasonable. Instead, the aforementioned phrase “but prior to the person’s release from
custody” merely provide “insurance” that individuals will not be released before their DNA
is collected.
Even if we were to find that Code section § 40-35-321(e)(1) is somehow ambiguous,
the legislative history does not support the Defendant’s far-fetched interpretation of this
statute. In the video recording of the March 6, 2007 hearing before the Sentence Judiciary
Committee, Lieutenant Governor Ron Ramsey, one of the bill’s sponsors, stated that this
particular bill would help set up the DNA database by “collecting samples from people as
they are arrested for certain crimes.” Johnia Berry Act of 2007: Hearing on S.B. 1196
Before the Senate Judiciary Committee, 105th General Assembly (Mar. 6, 2007) (statement
of Lieutenant Governor Ron Ramsey). During his remarks, Lieutenant Governor Ramsey
recognized that DNA had become the “twentieth century fingerprint” for the purpose of
identifying individuals. Id. Likewise, in the video recording from May 9, 2007,
immediately prior to the vote on this bill, Representative Jason Mumpower, one of the
sponsor’s of this bill in the House, stated that the purpose of this bill was to “establish the
first state-wide DNA database for people when they are arrested for certain violent
felonies[.]” Johnia Berry Act of 2007: House Session, 38th Legislative Day (A), 105th
General Assembly (May 9, 2007) (statement of Representative Jason Mumpower).
Representative Mumpower also observed that DNA evidence was the “fingerprint of the
future.” Id. Neither Lieutenant Governor Ramsey nor Representative Mumpower made
any statements indicating that the buccal swab would not be taken “until and unless” the
arrestee was released. On the contrary, both lawmakers emphasized that DNA samples
would be collected as individuals were arrested for certain violent felonies. The rationale
that collecting DNA works like fingerprinting to identify the arrestees further supports the
interpretation that DNA analysis should be conducted on all persons arrested for violent
felonies, after a determination has been made by a magistrate or a grand jury that probable
cause exists for the arrest. Accordingly, both the plain language in Code section § 40-35-
321(e)(1) and the legislative history for this statute support the interpretation that the
collection of buccal swabs for DNA analysis is required for all individuals arrested for
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violent felonies on or after January 1, 2008, and this requirement is not contingent on
whether such individuals are released from custody. Because Code section § 40-35-321(e)
mandated that a buccal swab be collected from the Defendant for DNA analysis under the
circumstances present in this case (i.e., when the Defendant was arrested pursuant to his
arrest warrant for aggravated rape of a child and when he was indicted for both aggravated
rape of a child and aggravated child abuse), we conclude that the trial court properly found
that the Defendant’s DNA would have been inevitably discovered pursuant to this statute.
B. Constitutionality of Code section 40-35-321. The Defendant contends that
even if Code section 40-35-321(e) would have permitted the State to obtain a sample of his
DNA upon his arrest, this court should conclude that Code section 40-35-321(e) is both
facially unconstitutional and unconstitutional as applied to him. The State responds that
the Defendant has waived this argument by failing to include it in his motion for new trial.
see Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983); State v. James Williams,
W2017-01117-CCA-R3-CD, 2018 WL 1640078, at *3-4 (Tenn. Crim. App. Apr. 5, 2018).
Moreover, it asserts that the Defendant cannot establish that the trial court committed plain
error in admitting the DNA evidence in light of the alleged unconstitutionality of Code
section 40-35-321(e) because there was no breach of a clear and unequivocal rule of law,
because a substantial right of the accused was not adversely affected, and because
consideration of the error is not necessary to do substantial justice. The State emphasizes
that because the Defendant was the only male caregiver in the victim’s household, and
therefore was the only one who could have deposited the concentrated amount of semen in
the rolled-up diaper, the evidence “unerringly pointed to the defendant as the perpetrator.
The Defendant claims that Code section 40-35-321(e)(1) is facially unconstitutional
because it violates the prohibition against unreasonable searches and seizures provided in
article I, section 7 of the Tennessee Constitution. He asserts that “the enactment of Tenn.
Code Ann. § 40-35-321(e)(1) is nothing more than a veiled attempt on the part of the
Tennessee General Assembly to circumvent the warrant requirement with respect to
obtaining DNA samples from individuals who have been arrested for certain enumerated
offenses.” He adds that “[o]ther than [Maryland v. ]King’s nonbinding precedent relative
to Tennessee constitutional law,” no other exception to the warrant requirement exists that
would support searching him via a buccal swab and conducting DNA analysis for use as
evidence to convict him of the offenses for which he was arrested. The Defendant contends
that because Code section 40-35-321(e)(1) is unconstitutional, the trial court erred in
concluding that his DNA would have been inevitably discovered by lawful means pursuant
this statute.
The Defendant also claims that the second sentence in Code section 40-35-321(e)(1)
makes this statute unconstitutional as applied to him because it is vague and ambiguous, if
interpreted in the manner proposed by the State and applied by the trial court. He insists
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that the second sentence of Code section 40-35-321(e)(1) requires an arrestee to attempt to
make bond before the State is entitled to obtain a DNA sample, and because he never made
or attempted to make his $1 million bond, the trial court erred in concluding that his DNA
would have been inevitably discovered by lawful means pursuant to Code section 40-35-
321(e)(1). He asserts that to the extent the first and second sentences of Code section 40-
35-321(e)(1) cannot be reconciled, “the rule of lenity requires this Court to apply the
ambiguity in the statute in a manner that is most favorable to [him].” For these reasons,
the Defendant maintains that this Code section 40-35-321(e) is unconstitutional as applied
to him and, consequently, that the trial court erred in concluding his DNA would have been
inevitably discovered pursuant to this statute.
Initially, we note that the Defendant, in his motion for new trial, argued only that
“the trial court erred by allowing DNA evidence and all lab test[s] and expert testimony
pertaining to said DNA evidence to be admitted at trial after the court had ruled the DNA
test performed on the defendant was not voluntary.” The Defendant notably failed to
include any claim in his motion for new trial that Code section 40-35-321 was facially
unconstitutional or unconstitutional as applied to him. At the hearing immediately prior to
the beginning of trial, defense counsel fleetingly argued that in order to make Code section
40-35-321(e) constitutional, the police had to “either get consent [for the DNA sample]”
or “get a search warrant[127]” Defense counsel then compared the DNA evidence here to
the “DUI cases where we were taking blood samples without consent[,]” and the United
States Supreme Court held, “you got to get a search warrant.”
In light of the Defendant’s failure to include this specific issue in the motion for
new trial and the United States Supreme Court’s holding in Maryland v. King, 569 U.S.
435 (2013), which we will summarize below, we conclude that the defense’s last-minute
effort to block the admission of the Defendant’s DNA by making this constitutional
argument is insufficient to preserve this issue for review. See Tenn. R. App. P. 3(e) (“[I]n
all cases tried by a jury, no issue presented for review shall be predicated upon error in the
admission or exclusion of evidence, jury instructions granted or refused, misconduct of
jurors, parties or counsel, or other action committed or occurring during the trial of the
case, or other ground upon which a new trial is sought, unless the same was specifically
stated in a motion for a new trial; otherwise such issues will be treated as waived.”
(emphasis added)); Lawrence, 655 S.W.2d at 929 (“It has long been the general rule that
questions not raised in the trial court will not be entertained on appeal and this rule applies
to an attempt to make a constitutional attack upon the validity of a statute for the first time
on appeal unless the statute involved is so obviously unconstitutional on its face as to
obviate the necessity for any discussion.”); In re Adoption of E.N.R., 42 S.W.3d 26, 32
(Tenn. 2001) (recognizing that the trial court never adjudicated the defense’s “last-ditch”
argument regarding the constitutionality of the relevant statute and stating that “there is
little difference between an issue improperly raised before the trial court at the last minute
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and one that was not raised at all.”). Accordingly, we conclude that any issue relating to
the unconstitutionality of Code section 40-35-321 is waived on appeal unless it constitutes
plain error.
The plain error doctrine states that “[w]hen necessary to do substantial justice, an
appellate court may consider an error that has affected the substantial rights of a party at
any time, even though the error was not raised in the motion for a new trial or assigned as
error on appeal.” Tenn. R. App. P. 36(b). In order for this court to find plain error,
“(a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a substantial
right of the accused must have been adversely affected; (d) the accused did
not waive the issue for tactical reasons; and (e) consideration of the error is
‘necessary to do substantial justice.’”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). “[P]lain error must be of such a great magnitude
that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (citations
and internal quotations marks omitted). “It is the accused’s burden to persuade an appellate
court that the trial court committed plain error.” State v. Bledsoe, 226 S.W.3d 349, 355
(Tenn. 2007) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). “[T]he presence
of all five factors must be established by the record before this Court will recognize the
existence of plain error, and complete consideration of all the factors is not necessary when
it is clear from the record that at least one of the factors cannot be established.” Smith, 24
S.W.3d at 283.
In considering whether the trial court committed plain error, we look to the
Tennessee Supreme Court case of State v. Scarborough, 201 S.W.3d 607 (Tenn. 2006) and
the United States Supreme Court case of Maryland v. King, 569 U.S. 435 (2013). In State
v. Scarborough, 201 S.W.3d at 610-11, the Tennessee Supreme Court considered whether
the collection of blood from a convicted and incarcerated felon for DNA analysis pursuant
to Code section 40-35-321(b)5 violated the Fourth Amendment to the United States
Constitution or article I, section 7 of the Tennessee Constitution. First, the Court
recognized that “the Fourth Amendment permits reasonable searches.” Id. at 616. It then
observed that some searches do not require a warrant, probable cause, or individualized
suspicion in order to be reasonable:
5
Code section 40-35-321(b) predated Code section 40-35-321(e)(1), which became effective on
January 1, 2008.
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The United States Supreme Court has emphasized “the longstanding
principle that neither a warrant nor probable cause, nor, indeed, any measure
of individualized suspicion, is an indispensable component of reasonableness
in every circumstance.” Nat’l Treasury Employees Union v. Von Raab, 489
U.S. 656, 665, 109 S. Ct. 1384, 103 L.Ed.2d 685 (1989); see also Skinner,
489 U.S. at 624, 109 S. Ct. 1402 (recognizing that “a showing of
individualized suspicion is not a constitutional floor, below which a search
must be presumed unreasonable”); Illinois v. Lidster, 540 U.S. 419, 424, 124
S. Ct. 885, 157 L.Ed.2d 843 (2004) (acknowledging that “special law
enforcement concerns will sometimes justify [seizures] without
individualized suspicion”). Rather, “where the privacy interests implicated
by the search are minimal, and where an important governmental interest
furthered by the intrusion would be placed in jeopardy by a requirement of
individualized suspicion, a search may be reasonable despite the absence of
such suspicion.” Skinner, 489 U.S. at 624, 109 S. Ct. 1402.
Id. at 617. The court next recognized that prisoners have a diminished expectation of
privacy, that the statute clearly and unambiguously specified the individuals who are
subject to DNA collection and analysis, and that the government’s interest in correctly
identifying those who had broken its laws was weighty. Id. at 618-22. The Scarborough
court then held that the taking of a blood sample from a convicted and incarcerated
defendant and the subsequent DNA analysis of that sample, which were both conducted
pursuant to Code section 40-35-321(b), were reasonable under the totality of the
circumstances, and therefore, did not violate the Fourth Amendment to the United States
Constitution. Id. at 622. After noting that article I, section 7 of the Tennessee Constitution
was “identical in intent and purpose” with the Fourth Amendment to the United States
Constitution, the court also held that the practice of obtaining a blood sample from a
convicted and incarcerated defendant did not violate Scarborough’s rights against
unreasonable searches and seizures under the Tennessee Constitution. Id.Several years later, in Maryland v. King, 569 U.S. at 441-444, the United States
Supreme Court considered the constitutionality of a search authorized by the Maryland
DNA Collection Act, which provided that all arrestees charged with serious offenses
furnish a DNA sample through a buccal swab. The court noted that the “traditional
standard of reasonableness” required the court “to weigh the promotion of legitimate
governmental interests against the degree to which [the search] intrudes upon an
individual’s privacy.” Id. at 448 (citation and internal quotation marks omitted). It stated
that “[t]he legitimate government interest served by the Maryland DNA Collection Act”
was “the need for law enforcement officers in a safe and accurate way to process and
identify the persons and possessions they must take into custody.” Id. at 449. The court
recognized that a cheek swab was only minimally intrusive and that individuals who had
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been arrested on probable cause for dangerous offenses had a reduced expectation of
privacy. Id. at 461, 463. The court also acknowledged that a buccal swab like the one in
this case did “not increase the indignity already attendant to normal incidents of arrest” and
that “the processing of respondent’s DNA sample[] did not intrude on respondent’s privacy
in a way that would make his DNA identification unconstitutional.” Id. at 464. Ultimately,
the King court held that both the taking of a buccal swab following an arrest for a serious
offense and the subsequent DNA analysis of that buccal swab were reasonable under the
Fourth Amendment:
When officers make an arrest supported by probable cause to hold for a
serious offense and they bring the suspect to the station to be detained in
custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like
fingerprinting and photographing, a legitimate police booking procedure that
is reasonable under the Fourth Amendment.
Id. at 465-66.
In light of Scarborough and King, the Defendant has failed to show that the trial
court committed plain error by admitting the DNA evidence. Code section 40-35-321(e)
specifies that DNA analysis of the sample is conducted to determine the “identification
characteristics” of all individuals arrested for violent felonies. The State argues, and we
agree, that if the Defendant’s fingerprints, taken during the booking process, had matched
fingerprints found on the diaper, then the Defendant could not have complained. We see
no difference between DNA and fingerprints in this context. Moreover, a buccal swab
collected pursuant to Code section 40-35-321(e) is not dependent on any officer’s or jailer’s
decision to invade his privacy; instead, a buccal swab is collected from all individuals who
have been arrested for certain specified violent felonies, so long as a magistrate or a grand
jury has determined that probable cause exists for the arrest. See Scarborough, 201 S.W.3d
at 619. Code section 40-35-321(e)(1), like the other subsections in that statute, “allows for
no discretion as to who will be required to provide a specimen.” Id. at 620; see State v.
Crank, 468 S.W.3d 15, 25 n.5 (Tenn. 2015) (distinguishing between “a facial challenge,
which involves the constitutionality of the statute as written, [and] [a]n as applied challenge
to the constitutionality of a statute[, which] is evaluated [by] considering how it operates
in practice against the particular litigant and under the facts of the instant case, not
hypothetical facts in other situations” (citations and internal quotation marks omitted)).
We conclude that the Defendant has failed to show that the trial court committed plain error
in admitting the DNA evidence after determining that it would have been inevitably
discovered pursuant to Code section 40-35-321(e). Because no clear and unequivocal rule
of law was breached, because a substantial right of the accused was not adversely affected,
and because consideration of the error is not necessary to do substantial justice, the
Defendant is not entitled to plain error relief.
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C. Inevitable Discovery of DNA Proof Pursuant to Search Warrant. Third, the
Defendant maintains that the inevitable discovery doctrine does not apply because although
the State could have obtained his DNA via a search warrant prior to trial, there was no
evidence to show that the State would have done this. He asserts that because the State
could have obtained a search warrant and ultimately failed to do so, this court should
conclude that the inevitable discovery doctrine does not provide a basis for admitting his
DNA, and the related expert DNA testimony, into evidence.
The Defendant contends that the State had more than enough time to obtain a search
warrant for his DNA prior to trial, and should have done so, rather than “s[itting] on its
hands and unwisely rel[ying] on its now-defunct belief that [he] voluntarily, knowingly,
and intelligently consented to providing his DNA when he did not.” He asserts that the
State should not be given the benefit of violating his constitutional right to refuse to provide
his DNA and then be allowed to argue, after this violation has been established, that the
State’s constitutional violation should be excused simply because the State allegedly
“would have” obtained a search warrant. We observe that the first time the State became
aware that the Defendant intended to challenge his consent to have his DNA collected was
at the hearing on February 6, 2020, exactly four days prior to trial. When the trial court
heard additional argument on this issue immediately before the start of trial on February
10, 2020, the State noted that the trial court could grant a search warrant for the Defendant’s
DNA “right now” and it could be “sent to the TBI, but that would require a continuance.”
We conclude that because the State was reasonably relying on the Defendant’s consent for
the DNA swab until defense counsel, on February 6, challenged this consent following the
trial court’s suppression of the Defendant’s statements, the State did not err in failing to
obtain the Defendant’s DNA via a search warrant prior to trial.
Second, the Defendant insists that the State’s claim, supported by Lieutenant
Grooms’ testimony, that it “would have” obtained a search warrant for the Defendant’s
DNA should be rejected in light of “the State’s unfettered, misplaced reliance on the
applicability of Tenn. Code Ann. 40-35-321(e)(1) to this case.” He notes that at the pretrial
hearing on February 10, 2020, the State asserted “its erroneous belief that a defendant is
automatically required to be swabbed for the presence of DNA when he or she is arrested
for a “violent felony” as defined in Tenn. Code Ann. § 40-35-321(e)(3). The Defendant
contends that if the State believes that a sample of the Defendant’s DNA is automatically
required to be collected upon his arrest for a “violent felony,” then “it makes absolutely
zero sense that the State ‘would have’ also obtained a search warrant” for the Defendant’s
DNA. He claims that “[t]o hold otherwise is to permit the State to proverbially have its
cake and eat it, too.” We have already concluded that the Defendant’s DNA would have
been inevitably discovered pursuant to Code section 40-35-321(e)(3). However, as we will
explain below, the Defendant’s DNA also would have been inevitably discovered pursuant
to a search warrant. The State was not forced to choose one option over the other and was
- 30 -
free to rely on any untainted, independent avenue to obtain the Defendant’s DNA pursuant
to the inevitable discovery doctrine.
Third, the Defendant contends that allowing the State to rely on the inevitable
discovery doctrine in his case is “‘untenable’” because it would “‘completely obviate the
warrant requirement.’” Scott, 619 S.W.3d at 205 (citing Quinney, 583 F.3d at 894)
(quoting Haddix, 239 F.3d at 768). He notes the Scott court fully agreed with the Sixth
Circuit line of cases, which “reject[ed] the argument that the inevitable discovery doctrine
applies in cases when law enforcement had probable cause to obtain a search warrant but
simply failed to do so.” Id. The Defendant insists that in his case, just as in Quinney and
Haddix, law enforcement had probable cause to obtain a search warrant for his DNA and
failed to do so. In the instant case, the State reasonably relied on the Defendant’s consent
for his DNA swab until the defense revealed, just a few days prior to trial, that it was going
to challenge this consent following the trial court’s suppression of the Defendant’s
statements during his interviews. In both Haddix and Quinney, the police conducted
warrantless searches but never had an independent, untainted investigation that inevitably
would have uncovered the same evidence. See Haddix, 239 F.3d at 768-69 (noting that
“[t]he record of the instant case includes no indication that the police were investigating
Haddix independently of the chance fly-over giving rise to his arrest.”); Quinney, 583 F.3d
at 894 (recognizing that “the agents in the present case had probable cause, based on the
statements of two witnesses, to obtain a search warrant for the seizure of the printer” and
that “instead of actually obtaining a warrant, they seized the printer without one”). We
conclude that the Defendant’s case is distinguishable from both Haddix and Quinney.
Here, there were two lawful avenues for obtaining the Defendant’s DNA that were
independent of the tainted consent: (1) Code section 40-35-321(e), and (2) a search warrant
for the Defendant’s DNA following the TBI’s discovery of blood and semen on the diaper.
Because we have already discussed the legitimacy of relying on Code section 40-
35-321(e), we will briefly discuss how obtaining a search warrant for the Defendant’s DNA
also provides a lawful avenue that was independent of the earlier, tainted consent in this
case. At the time that the victim was admitted to the hospital for his injuries, the Defendant
was the only male caregiver for the victim. The record shows that both the Defendant and
his wife, Danielle Bowen, consented to the search of their home. Even if the validity of
the Defendant’s consent could be challenged, the record indicates that Bowen’s consent to
the search of the home was valid. When officers searched the home pursuant to this
consent, Detective Grooms collected the Defendant’s and Bowen’s city garbage can,
wherein he later discovered what appeared to be a bloody diaper. TBI testing revealed that
this diaper contained not only blood but also a high concentration of semen, which provided
the police with probable cause to obtain a search warrant for the DNA of the Defendant,
who was the only male caregiver living at that address. Bowen’s lawful consent to search
the home, which led to the discovery of the diaper that provided probable cause for a search
- 31 -
warrant for the Defendant’s DNA, was completely independent of the Defendant’s tainted
consent to provide his DNA through a buccal swab. See Johnson, 22 F.3d at 684 (noting
that both an “independent line of investigation” and “compelling facts” can show that the
evidence would have inevitably been discovered). The record here shows that if the
Defendant had refused to consent to a buccal swab of his DNA, the Defendant’s DNA
would have undoubtedly been obtained either pursuant to a search warrant or pursuant to
Code section 40-35-321(e). In fact, the only reason the Defendant’s DNA was not obtained
pursuant to a warrant or to Code section 40-35-321(e) was because the Defendant
consented to providing his DNA during the first interview, even though his consent was
later found to be invalid. See United States v. Elvin Wrensford, No. 2013-0003, 2019 WL
3842860, at *9 (V.I. Aug. 15, 2019) (“The absence of any effort by law enforcement to
obtain a warrant is attributable to Wrensford’s provision of consent, which obviated the
need for a warrant.”). Detective Grooms clearly testified that he obtained a search warrant
for the Defendant’s truck and his cell phone records and that he would have been able to
obtain a search warrant for the Defendant’s DNA “[q]uite quickly” once the TBI
determined that there was semen on the diaper. In fact, it would have been reasonable for
the police to obtain a search warrant for the Defendant’s DNA, even if this DNA had been
obtained pursuant to Code section 40-35-321(e), in order to doubly confirm that the
Defendant’s DNA matched the DNA of the semen on the diaper. Such confirmation DNA
tests, especially for the purposes of trial, are not unusual. Because the record is sufficient
to show by a preponderance of the evidence that the Defendant’s DNA would have been
inevitably discovered, either pursuant to a search warrant or pursuant to Code section 40-
35-321(e) or pursuant to both of these lawful avenues, we conclude that the trial court did
not err in denying the Defendant’s motion to suppress the DNA evidence in this case.
II. Admission of Photographs. The Defendant also contends that the trial court
abused its discretion in allowing the State to introduce five photographs depicting the
injuries to the victim’s anus and rectum. While he acknowledges that these photographs,
individually and collectively, accurately depicted the victim’s physical condition when it
was first discovered, he nevertheless asserts that “the inflammatory, unfairly prejudicial,
and needlessly cumulative nature of these photographs substantially outweighed any
probative value of the photographs as evidence.” He also claims that testimonial evidence
regarding the nature and extent of the victim’s injuries would have been more than
sufficient to relate the facts of the case to the jury. Lastly, he asserts that even if the State
was entitled to show the jury at least one photograph of the victim’s injuries, there was no
need to admit all five photographs. For all of these reasons, the Defendant argues that his
convictions should be reversed and vacated and that his case should be remanded for a new
trial. The State counters that the Defendant cannot show that the trial court abused its
discretion in admitting these photographs, given that causation of the victim’s injury was
a contested issue at trial. We agree with the State.
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At the February 6, 2020 hearing, the State asked the trial court to consider the
admissibility of fifteen photographs depicting the injuries to the victim’s anus and rectum.
The Defendant immediately made a “blanket objection” to all fifteen photographs on the
basis that they were “repetitive” and that the probative value was outweighed by the
“prejudicial” nature of the photographs. After carefully considering all fifteen
photographs, the trial court denied the defense’s motion to exclude all the photographs,
finding that admission of some photographs was “necessary for the jury to understand the
full impact and full injuries” sustained by the victim. Turning to the defense’s motion to
limit the number of photographs admitted, the trial court stated that it was “inclined to have
the jury look at these five [photographs].” Defense counsel acknowledged,
“notwithstanding [his] original objection,” that two of the photographs would be sufficient
to allow an expert to testify about the “bruising, laceration, and tissue [injury]” sustained
by the victim. Ultimately, the trial court determined that all five photographs of the
victim’s injuries were admissible because “their probative value substantially outweigh[ed]
their prejudicial effect.”
“Generally, the admissibility of evidence rests within the trial court’s sound
discretion, and the appellate court does not interfere with the exercise of that discretion
unless a clear abuse appears on the face of the record.” State v. Franklin, 308 S.W.3d 799,
809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)). A trial court
is found to have abused its discretion when it applies “an incorrect legal standard or reaches
a conclusion that is ‘illogical or unreasonable and causes an injustice to the party
complaining.’” Lewis, 235 S.W.3d at 141 (quoting State v. Ruiz, 204 S.W.3d 772, 778
(Tenn. 2006)). “[T]he modern trend is to vest more discretion in the trial judge’s rulings
on admissibility.” State v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000).
To be admissible, all evidence, including photographs, must be relevant to an issue
the jury must decide. State v. Thomas, 158 S.W.3d 361, 394 (Tenn. 2005). Relevant
evidence is “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.” Tenn. R. Evid. 401. However, relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.
403. Unfair prejudice has been defined as “‘[a]n undue tendency to suggest decision on an
improper basis, commonly, though not necessarily an emotional one.’” State v. Banks, 564
S.W.2d 947, 951 (Tenn. 1978) (quoting Fed. R. Evid. 403, Advisory Comm. Notes).
When determining the admissibility of relevant photographic evidence, the trial
court should consider “[the photographs’] accuracy and clarity, . . . the inadequacy of
testimonial evidence in relating the facts to the jury; and the need for the evidence to
- 33 -
establish a prima facie case of guilt or to rebut the defendant’s contentions.” Id.Photographs must never be used “solely to inflame the jury and prejudice them against the
defendant.” Id. If photographs do not add anything to the testimonial descriptions, they
may be excluded. Id. In addition, if the defense offers to stipulate to the facts shown in a
photograph or never disputes the testimony that the photograph illustrates, then admission
of the photograph itself may not be justified. Id. Nevertheless, “a relevant photograph is
not rendered inadmissible merely because it is cumulative.” State v. Morris, 24 S.W.3d
788, 811 (Tenn. 2000); see State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993) (holding
that despite the admission of a color videotape showing the victim’s bodies, the color
photographs of the deceased victims were not “unnecessarily cumulative”); State v. Brown,
836 S.W.2d 530, 551 (Tenn. 1992) (holding that the nine photographs of the victim’s body
were admissible, despite testimony graphically describing the victim’s injuries, because
the photographs established “the brutality of the attack and the extent of the force used
against the victim”).
We conclude that the five photographs admitted at trial were relevant and that the
probative value of these photographs was not substantially outweighed by the danger of
unfair prejudice. These photographs depicted the severe injuries to the victim’s anus and
rectum, which included two lacerations, debilitating muscle relaxation that nearly required
the victim to have a colostomy bag for life, and extensive bruising. Nurse Practitioner
Leanna Dugan relied on all five photographs to illustrate and explain each of the victim’s
injuries at trial. In order to prove the elements of the charged offenses, the State was
required to prove that the Defendant intentionally, knowingly, or recklessly had unlawful
sexual penetration of the victim for count one and that the Defendant knowingly, other than
by accidental means, treated the victim in such as manner as to inflict serious bodily injury
for count two. The admitted photographs, which depicted the brutality of the offenses and
the nature and extent of the victim’s injuries, were particularly probative of these issues.
The defense theory at trial was that the Defendant accidentally injured the victim when he
used his finger to remove stool while the victim was constipated. These five photographs
supported the State’s argument that this was not an accidental injury to the victim and that
the Defendant was, in fact, guilty of aggravated rape of a child and aggravated child abuse.
As to the Defendant’s claim that all five of these photographs should not have been
admitted, we note that these photographs were not cumulative to each other or to the other
evidence presented at trial, including the reports and testimony from the State’s expert
witnesses. The admitted photographs depicted the severity of the victim’s injuries from
different perspectives, which assisted the jury in determining whether the Defendant’s
explanation for the victim’s extensive injuries was credible. In light of the defense theory
at trial that the Defendant inflicted the victim’s injuries accidentally, there is no indication
that the “primary purpose” of these photographs was “to elicit emotions of ‘bias, sympathy,
hatred, contempt, retribution, or horror.’” State v. Collins, 986 S.W.2d 13, 20 (Tenn. Crim.
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App. 1998) (quoting M. Graham, Handbook of Federal Evidence 182-83 (2d ed. 1986)).
The primary issue at trial was whether the victim’s anal and rectal injuries and leg fractures
were from the Defendant’s sodomizing the victim. Because testimony alone would have
fallen woefully short of demonstrating the acute severity of the victim’s injuries and
because causation was the key issue at trial, we conclude that the probative value of these
photographs was not substantially outweighed by the danger of unfair prejudice and that
the trial court did not abuse its discretion in admitting them.
Even if the trial court’s admission of all five photographs was in some way error, it
most certainly did not affect the verdict in this case. See State v. Martin, 964 S.W.2d 564,
568 (Tenn. 1998) (“A violation of an evidentiary rule may not mandate reversal if the error
‘was more probably than not harmless.’” (quoting United States v. Barrett, 703 F.2d 1076,
1081-82 (9th Cir. 1983)); Tenn. R. Crim. P. 52(a) (“No judgment of conviction shall be
reversed on appeal except for errors which affirmatively appear to have affected the result
of the trial on its merits.”); Tenn. R. App. P. 36(b) (“A final judgment from which relief is
available and otherwise appropriate shall not be set aside unless, considering the whole
record, error involving a substantial right more probably than not affected the judgment or
would result in prejudice to the judicial process.”). As the Tennessee Supreme Court
recognized:
Whether error in the admission of evidence is prejudicial is gauged by the
substance of the evidence, its relation to other evidence, and the peculiar facts
and circumstances of the case, and whether such admission is sufficient
ground for reversal depends on the facts in each case; and the appellate court
will consider the record as a whole in determining the question of prejudice
or reversibility.
Blankenship v. State, 410 S.W.2d 159, 161 (Tenn. 1966) (quoting 24B C.J.S. Criminal
Law § 1915(2)). Here, the proof conclusively established that the Defendant was the only
male caregiver for the victim during the relevant time period and that a diaper containing
a high concentration of semen, which matched the Defendant’s DNA, was collected behind
the Defendant’s home. The Defendant is not entitled to relief on this issue.
III. Sufficiency of the Evidence. The Defendant also argues that the evidence is
insufficient to sustain his convictions for aggravated rape of a child and aggravated child
abuse and that his convictions should be reversed and vacated and his case dismissed. The
State responds that it presented overwhelming proof to support the Defendant’s
convictions. We conclude that the evidence is sufficient to sustain both convictions.
“Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
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the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).
“Appellate courts evaluating the sufficiency of the convicting evidence must determine
‘whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court
evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn from that
evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318
S.W.3d 850, 857 (Tenn. 2010)).
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 691
(Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the credibility of
the witnesses, determine the weight given to witnesses’ testimony, and reconcile all
conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing
Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury
determines the weight to be given to circumstantial evidence, and the inferences to be
drawn from this evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence, are questions primarily for the jury. Dorantes, 331
S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When considering
the sufficiency of the evidence, this court “neither re-weighs the evidence nor substitutes
its inferences for those drawn by the jury.” Wagner, 382 S.W.3d at 297 (citing State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).
Regarding the conviction for aggravated rape of a child, the Defendant contends that
the State failed to present sufficient evidence establishing that he “intentionally,
knowingly, or recklessly penetrated [the victim’s] bottom in a sexual manner.” He claims
that aside from his own testimony, no other witnesses testified with “direct, personal
knowledge” as to how the injuries to the victim were sustained and that no other witnesses
testified that they personally observed him anally penetrating the victim in a sexual manner.
He also notes that although Agent Kennedy testified that the Defendant’s semen was found
in the victim’s diaper, Agent Kennedy also acknowledged that the victim’s perianal swabs
tested negative for the presence of semen. Additionally, he asserts that while Agent Sulpy
testified that it was “unlikely” that semen from the baby wipe would transfer to the diaper
while both items were soaking in a wet trash can for a long period of time, Agent Sulphy’s
testimony did not completely rule out such a possibility.
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As charged in this case, aggravated rape of a child is “the unlawful sexual
penetration of a victim by the defendant or the defendant by a victim, if the victim is three
(3) years of age or less.” Tenn. Code Ann. § 39-13-531(a) (Supp. 2018). “Sexual
penetration” is defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any
other intrusion, however slight, of any part of a person’s body or of any object into the
genital or anal openings of the victim’s, the defendant’s, or any other person’s body, but
emission of semen is not required[.]” Id. § 39-13-501(7). In order to find a defendant
guilty of aggravated rape of a child, the State must prove beyond a reasonable doubt: (1)
that the defendant had unlawful sexual penetration of the alleged victim or the alleged
victim had unlawful sexual penetration of the defendant; (2) that the alleged victim was
three (3) years of age or less; and (3) that the defendant acted either intentionally,
knowingly or recklessly. See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 10.12.
The proof at trial conclusively established that the Defendant was the only male
caregiver of his sixteen-month-old son, who was so severely sodomized that his injuries
required surgical intervention. A rolled up diaper containing a high concentration of semen
and the victim’s blood was found in a trash can just outside the Defendant’s home. TBI
testing established that the semen in the diaper matched the Defendant’s DNA. Given the
overwhelming evidence of guilt presented at trial, a rational jury could have found beyond
a reasonable doubt that the Defendant intentionally, knowingly, or recklessly engaged in
the unlawful sexual penetration of the victim, who was three years of age or less. We
conclude the evidence is more than sufficient to sustain the Defendant’s conviction for
aggravated rape of a child.
Regarding the conviction for aggravated child abuse, the Defendant argues that the
State failed to establish that the victim’s anal and rectal injuries constituted “serious bodily
injury” or that the Defendant caused the corner fractures to the victim’s legs on or about
November 11, 2018. While he acknowledges that the victim sustained a laceration,
bruising, and muscle relaxation, he argues that the laceration and muscle relaxation would
not constitute “serious bodily injury” pursuant to Code section 39-15-402(c) and that the
bruising was not severe enough to constitute “serious bodily injury” under that statute. The
Defendant also asserts that Dr. Williams’ testimony, wherein she admitted she could not
provide a specific date that these corner fractures occurred, left the jury to “speculate
impermissibly that [the Defendant] caused the corner fractures to [the victim] on or about
November 11, 2018.”
As relevant here, “[a] person commits the offense of aggravated child abuse . . . who
commits child abuse, as defined in § 39-15-401(a) . . . and . . . [t]he act of abuse . . . results
in serious bodily injury to the child[.]” Tenn. Code Ann. § 39-15-402(a)(1) (Supp. 2018).
“[I]f the abused . . . child is eight (8) years of age or less, . . . the penalty is a Class A
felony.” Id. § 39-15-402(b). A person commits child abuse “who knowingly, other than
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by accidental means, treats a child under eighteen (18) years of age in such a manner as to
inflict injury[.]” Id. § 39-15-401(a) (Supp. 2018). “‘Serious bodily injury to the child’
includes, but is not limited to, second- or third-degree burns, a fracture of any bone, a
concussion, subdural or subarachnoid bleeding, retinal hemorrhage, cerebral edema, brain
contusion, injuries to the skin that involve severe bruising or the likelihood of permanent
or protracted disfigurement, including those sustained by whipping children with objects.”
Id. § 39-15-402(c) (Supp. 2018) (emphasis added). In order to find a defendant guilty of
aggravated child abuse, the State must prove beyond a reasonable doubt: (1) that the
defendant knowingly, other than by accidental means, treated a child in such a manner as
to inflict injury; (2) that the act of abuse resulted in serious bodily injury to the child; and
(3) that the child was eight (8) years of age or less. See 7 Tenn. Prac. Pattern Jury Instr.
T.P.I.—Crim. 21.01.
As to the Defendant’s claim that the victim’s anal and rectal injuries did not
constitute “serious bodily injury” for his aggravated child abuse conviction, Nurse
Practitioner Leanna Dugan testified that the victim sustained such severe injuries to his
anus and rectum that the victim refused to cooperate with a physical exam. She stated that
the victim had both a deep penetrating laceration as well as a shallow laceration to his rectal
area, substantial bruising, and severe muscle relaxation around his anus. Although the
Defendant contends that the victim’s lacerations and muscle relaxation would not
constitute “serious bodily injury” and that the bruising was not severe enough to constitute
“serious bodily injury,” we strongly disagree and conclude that each of these injuries
constituted serious bodily injury for this offense. Although Code section 39-15-402(c)
provides some specific examples of the types of injuries that would constitute serious
bodily injury, the statute explicitly acknowledges that this list is not exclusive. Because
the evidence overwhelmingly established that the victim sustained horrific anal and rectal
injuries, a rational jury could have easily found that the victim sustained serious bodily
injury based on these injuries alone.
We next address the Defendant’s claim that the inability to date the victim’s corner
fractures meant there was no proof that he inflicted these injuries on or about November
11, 2018. Dr. Williams testified at trial that the victim’s leg fractures were very rare and
generally occurred during a forceful yanking. She also stated that the victim’s anal and
rectal trauma was consistent with child sexual abuse and that the victim’s corner fractures,
absent a “very clear, exceedingly rare accidental history,” were consistent with physical
abuse of a child. Dr. Williams opined that neither a fall in a bathtub nor anything in the
victim’s medical history explained the victim’s corner fractures. This proof, along with
the medical evidence presented at trial, leads to the strong inference that the Defendant
caused the corner fractures when he committed the aggravated rape of the victim. We also
fully agree with the State’s assertion that the jury could have reasonably inferred guilt from
the Defendant’s actions in fleeing to another state after his first interview with police, in
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hiding his truck in the woods so it would not be discovered, and in failing to provide any
corroborating proof that he was working for a plumber in Alabama. Given the evidence
presented at trial, a rational jury could have found that the Defendant forcibly grabbed the
victim by his legs in order to sexually penetrate him, which resulted in the severe injuries
to the victim’s anus and rectum as well as the corner fractures to the victim’s legs.
Accordingly, we also conclude the evidence is more than sufficient to sustain the
Defendant’s conviction for aggravated child abuse.
IV. Consecutive Sentencing. The Defendant argues that the trial court abused its
discretion when it ordered his twenty-five-year sentence for aggravated child abuse served
consecutively to his sixty-year sentence for aggravated rape of a child. He urges this court
to reverse the trial court’s imposition of consecutive sentencing and order his sentences
served concurrently. While the Defendant acknowledges that the offenses of aggravated
rape of a child and aggravated child abuse are “two of the most serious crimes punishable
under Tennessee law,” he nevertheless asserts the record does not support the trial court’s
finding that he committed these two crimes when “the risk to [the victim’s] life was high.”
He claims that the victim was never at risk of dying and that the victim’s injuries had healed
by the time of the sentencing hearing. The State counters that the trial court properly found
that the Defendant’s behavior, in sodomizing his own son and breaking his son’s legs in
the process, showed a blatant disregard for human life and that the Defendant posed a threat
to the public. We conclude that the trial court did not abuse its discretion in imposing
consecutive sentencing that resulted in the Defendant’s effective eighty-five-year sentence.
In Pollard, the Tennessee Supreme Court held that “the abuse of discretion standard,
accompanied by a presumption of reasonableness, applies to consecutive sentencing
determinations.” State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013); see State v. Bise, 380
S.W.3d 682, 708 (Tenn. 2012); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). The
court explained that “the presumption of reasonableness . . . giv[es] deference to the trial
court’s exercise of its discretionary authority to impose consecutive sentences if it has
provided reasons on the record establishing at least one of the seven grounds listed in
Tennessee Code Annotated section 40-35-115(b)[.]” Pollard, 432 S.W.3d at 861. It
reiterated that “[a]ny one of these grounds is a sufficient basis for the imposition of
consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d 735, 748 (Tenn.
2013)). “So long as a trial court properly articulates reasons for ordering consecutive
sentences, thereby providing a basis for meaningful appellate review, the sentences will be
presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Id. (citing
Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705). When imposing consecutive
sentences, the court must still consider the general sentencing principles that each sentence
imposed shall be “justly deserved in relation to the seriousness of the offense,” “no greater
than that deserved for the offense committed,” and “the least severe measure necessary to
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achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. §§ 40-35-
102(1), -103(2), -103(4); State v. Imfield, 70 S.W.3d 698, 708 (Tenn. 2002).
Here, the trial court imposed consecutive sentencing after finding that the Defendant
was a dangerous offender whose behavior indicated little or no regard for human life and
no hesitation about committing a crime in which the risk to human life was high [XI, 40].
See Tenn. Code Ann. § 40-35-115(b)(4). The Pollard court explained that two additional
findings must be made when applying the dangerous offender classification:
“Proof that an offender’s behavior indicated little or no regard for
human life and no hesitation about committing a crime in which the risk to
human life was high, is proof that the offender is a dangerous offender, but it
may not be sufficient to sustain consecutive sentences. Every offender
convicted of two or more dangerous crimes is not a dangerous offender
subject to consecutive sentences; consequently, the provisions of [s]ection
40-35-115 cannot be read in isolation from the other provisions of the Act.
The proof must also establish that the terms imposed are reasonably related
to the severity of the offenses committed and are necessary in order to protect
the public from further criminal acts by the offender. In addition, the
Sentencing Reform Act [of 1989] requires the application of the sentencing
principles set forth in the Act applicable in all cases. The Act requires a
principled justification for every sentence, including, of course, consecutive
sentences.”
Pollard, 432 S.W.3d at 863 (quoting Wilkerson, 905 S.W.2d at 938). Therefore, when
imposing consecutive sentences pursuant to the dangerous offender classification, the trial
court must conclude that the proof has established that the aggregate sentence is
“reasonably related to the severity of the offenses” and “necessary in order to protect the
public from further criminal acts[.]” Id. (quoting Wilkerson, 905 S.W.2d at 938). Unlike
the other six subsections, the trial court must make additional findings for the dangerous
offender classification because it is “the most subjective and hardest to apply.” State v.
Lane, 3 S.W.3d 456, 461 (Tenn. 1999).
In this case, the trial court determined that the Defendant was a dangerous offender
whose behavior indicated little or no regard for human life and no hesitation about
committing a crime in which the risk to human life is high. The court also made the
additional findings required by Wilkerson, specifically stating that “consecutive sentencing
is reasonably related to the severity of the offenses committed” and that “an extended
sentence is necessary to protect society against further criminal conduct of this defendant.”
The trial court considered the testimony from three of the State’s witnesses before stating
that the Defendant caused horrific injuries to the victim, including “a tear so deep that it
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required surgery . . . in addition to fracturing both of his [legs]. It recognized that the
Defendant also “ejaculated in his baby,” which the Defendant did to “gratify his desire for
pleasure or excitement” The trial court also determined that the Defendant abused a
position of trust and that the victim in this case was vulnerable and “unable to summon
help.” The court found that the circumstances of the offenses were aggravated, that
confinement for an extended time was necessary to protect society, and that the aggregate
length of the sentences reasonably related to the offenses of which the Defendant stood
convicted. The court determined that the Defendant was “100 percent not credible” and
that the Defendant had failed to accept responsibility for the victim’s serious injuries. The
trial court stated that it was “appalled” by the “Strong R” assessment’s determination that
the Defendant was at a low risk to reoffend; the court then dismissed each and every one
of the findings made in this assessment.
The Defendant specifically claims the record does not support the trial court’s
finding that he committed these two crimes when “the risk to [the victim’s] life was high.”
He asserts that the victim was never at risk of dying and that the victim’s injuries had healed
by the time of the sentencing hearing. We conclude that the Defendant in this case had
absolutely no hesitation about committing a crime in which the risk to human life was high.
The victim’s horrific injuries included a deep, penetrating laceration, a second shallow
laceration, debilitating muscle relaxation that nearly required the victim to have a
colostomy bag for life, extensive bruising, and fractures to both legs. After the Defendant
violently sodomized his sixteen-month old son, the victim bled profusely, as shown by the
blood soaked diaper that was admitted into evidence. After inflicting these horrendous
injuries, the Defendant kept the victim from Lura McCandless for several days, which
delayed the victim’s surgery and other necessary medical treatment. When the Defendant
and Bowen appeared at the hospital, the Defendant never asked about the victim’s health
and seemed unconcerned about the victim’s condition. Despite the Defendant’s claims to
the contrary, this record clearly and definitively supports the trial court’s determination
that the Defendant is a dangerous offender whose behavior indicated little or no regard for
human life and no hesitation about committing a crime in which the risk to human life is
high. See Tenn. Code Ann. § 40-35-115(b)(4). Moreover, the record supports the trial
court’s findings that the terms imposed in this case were reasonably related to the severity
of the offenses committed and were necessary in order to protect the public from further
criminal acts by the Defendant. See Pollard, 432 S.W.3d at 863. Accordingly, we conclude
that the trial court did not abuse its discretion in ordering the Defendant’s twenty-five-year
sentence for aggravated child abuse served consecutively to his sixty-year sentence for
aggravated rape of a child, for an effective sentence of eighty-five years. The Defendant
is not entitled to relief.
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CONCLUSION
We conclude that the trial court did not err in admitting the DNA evidence at trial,
that the trial court did not abuse its discretion in admitting photographs of the victim’s
injuries, that the evidence is sufficient to sustain both of the Defendant’s convictions, and
that the trial court did not abuse its discretion in imposing consecutive sentencing in this
case. Accordingly, the judgments of the trial court are affirmed.
_________________________________
CAMILLE R. McMULLEN, JUDGE
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