State of Tennessee v. Michael Presson ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
November 13, 2013 Session
STATE OF TENNESSEE v. MICHAEL PRESSON
Direct Appeal from the Circuit Court for Madison County
No. 10-202 Roy B. Morgan, Jr., Judge
No. W2012-00023-CCA-R3-CD - Filed April 24, 2014
A Madison County jury convicted the Defendant, Michael Presson, of ten counts of
attempted aggravated sexual battery, one count of aggravated sexual battery, and eleven
counts of rape of a child. The trial court sentenced the Defendant to an effective sentence
of thirty-five years of confinement. On direct appeal from his convictions, the Defendant
contends that: (1) the evidence presented at trial was insufficient to sustain his convictions;
(2) the trial court erred when it refused to admit into evidence the medical record for one of
the victims; (3) the trial court violated Tennessee Rule of Evidence 615 by allowing the
State’s designated witness to be present during the victims’ testimony, without requiring the
designated witness to testify first; (4) the State improperly used an exhibit and commented
on a jury questionnaire during closing arguments, violating the Defendant’s Sixth
Amendment right to a fair trial; (5) the trial court improperly instructed the jury as to the
mens rea elements of the crimes; (6) the trial court erred when it imposed consecutive
sentences; and (7) the trial court erred when it placed the victim’s medical records under seal
and denied the Defendant the opportunity to review the records. After a thorough review of
the record and applicable law, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which A LAN E. G LENN and
J EFFREY S. B IVINS, JJ. joined.
David L. Raybin, Nashville, Tennessee (on appeal), and Joe H. Byrd, Jr., Jackson, Tennessee
(at trial), for the Appellant, Michael Presson.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
James G. Woodall, District Attorney General; Rolf G.S. Hazlehurst, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Facts
A. Trial
This case arises from the Defendant’s rape and sexual battery of two minor girls
during the period of time from 2007 to 2009. A Madison County grand jury indicted the
Defendant in April 2010 for twenty-two counts of aggravated sexual battery, sixteen counts
of rape of a child, two counts of sale, loan or exhibition of material harmful to minors, and
one count of indecent exposure with respect to one of the victims, T.B.1 The indictment also
charged the Defendant with three counts of sexual battery with respect to the other victim,
S.W.
At trial, the following evidence was presented: S.W. testified that she was fifteen
years old at the time of trial and that she has been friends with T.B., the other victim, for “a
long time.” She testified that she also knew the Defendant’s grandson and the Defendant,
through her father. S.W. testified that she met the Defendant in the summer of 2009 and that
the Defendant asked her to mow his yard. She started mowing his yard every two weeks that
summer. At some point, the Defendant invited her to swim in his pool after mowing the
yard. S.W. said that one day she was in the pool with the Defendant, and he “started tickling
[her], and he touched [her] in inappropriate places.” S.W. demonstrated for the jury that the
Defendant touched her breasts, and she stated that it made her feel uncomfortable. During
another “incident” in the pool, she recalled that the Defendant “slapped [her] on the butt” as
she was getting out of the pool.
S.W. testified about another incident that happened while she and the Defendant were
fishing together. She recalled that the Defendant was standing outside the boat, in the water,
and that when he tried to get back into the boat, he reached in and touched S.W. “between
[her] legs.” S.W. testified that she mowed the Defendant’s yard one more time after the
fishing trip. She stated that she reported the incidents with the Defendant to the sheriff’s
department after T.B. came forward.
On cross-examination, S.W. testified that she spoke with Lieutenant Felicia Stacy at
the sheriff’s office on July 29, 2009. When asked about her statement, S.W. agreed that she
had told Lieutenant Stacy that “nothing” had happened between her and the Defendant on
the fishing trip. She stated that her mother was present when the incidents occurred in the
Defendant’s pool.
1
It is the policy of this Court to refer to the minor victims by their initials only.
2
T.B. testified that she was fourteen years old at the time of trial and that she and S.W.
knew each other from school. T.B. testified that the Defendant “used to be” a family friend
and that she met him the summer before her seventh grade year in school. T.B. said that her
mother had worked for the Defendant and that the Defendant, occasionally, would pick T.B.
up from school. T.B. testified that she used to see the Defendant “a lot,” stating that she and
the Defendant would go out to eat together, go hunting together, and that she would “stay the
night” at his house. T.B. estimated that she spent the night at the Defendant’s house “over
a hundred” times.
T.B. testified that she would normally go to the Defendant’s house on a Friday night,
and he would “give [her] a bath,” and she “would have to sleep in the bed with [the
Defendant].” When giving her a bath, the Defendant would “wash [her] with a wash rag”
on her “breasts and [her] private area.” T.B. indicated to the jury that her “private area” was
her genital area. When asked how the Defendant would wash her genital area, T.B.
responded “[h]e wouldn’t go inside the hole [of the vagina]; he would go like on the inside
of like the walls” and stated she was referring to the vaginal lips. T.B. stated that after the
Defendant washed her, they would go lay in bed together, and that the Defendant would use
a razor to shave her legs and her private area. She recalled that the Defendant told her that
shaving would prevent her from “getting an infection.”
T.B. testified that she slept in the same bed as the Defendant. She stated that the
Defendant gave her a shirt cut off above her waist to wear and that he would wear
underwear. She recalled that there were two other bedrooms in the house, but that she slept
in his room because he told her there had been “break-ins” in the neighborhood. T.B. stated
that, while lying in bed, the Defendant would “wrap his arm around [her],” and he would
touch her breasts. T.B. recalled the night of August 11, 2007, when she spent the night at the
Defendant’s house while her parents went out. She stated that the Defendant bathed her that
night and penetrated her when he washed her. He also touched her breasts when they were
in bed together.
T.B. testified that the incidents with the Defendant “happened every time that [she]
went over [to his house],” but that she wrote down the dates for each of the incidents she
could remember “for sure” and for which she could prove why she was at his house. T.B.
recalled that on or about September 28, 2007, at the Defendant’s house, the Defendant took
her clothes off and put her in the bath, and touched her breasts and private parts. She recalled
he “went inside the lips” of her vagina, but did not “go in the hole.” T.B. testified that she
and the Defendant went hunting in October 2007, and she spent the night at the Defendant’s
house. On that occasion, she recalled he washed her body in the bath and then put his arms
around her when they were in his bed. On or about December 7, 2007, T.B. recalled that the
Defendant gave her a bath and when he washed her, he put “his fingers and the wash rag
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inside of the lips [of her vagina] but not inside the hole.” She said they slept in his bed
together that night and the Defendant touched her breasts while they were in his bed. T.B.
stated that, under the same circumstances, the Defendant touched her vagina and breasts on
or about December 15, 2007, March 15, 2008, March 21, 2008, July 4, 2008, August 8, 2008,
November 7, 2008, November 14, 2008, November 21, 2008, January 17, 2009, February 14,
2009, February 28, 2009, and March 7, 2009.
T.B. testified that on April 18, 2009, the Defendant showed her Playboy magazines
and a vibrator. She testified that he had the Playboy magazines on his headboard by his bed,
and he flipped through the magazines in front of her. She stated that he pulled the vibrator
out of a dresser drawer and asked T.B. if she wanted to see it. T.B. stated that the vibrator
was a white, creamy color and that it was “long and had a point on the end, and there was a
switch on the top of it.”
T.B. testified that, on or about May 29, 2009, she and the Defendant got into an
argument over her cellular phone while they were lying in his bed. She said the Defendant
“got mad” because she was sending text messages on the phone, and he tried to take the
cellular phone away from her. T.B. stated she threw the phone across the room, and the
Defendant got mad at her.
T.B. recalled that on July 10 or July 11, 2009, she was in her bathing suit at the
Defendant’s house and got stung by a bee on her “butt.” T.B. recalled that the Defendant
called her mother and asked what he should do about the bee sting. She stated that her
mother told the Defendant to give T.B. a Benadryl, but the Defendant said he could not find
any. Instead, T.B. recalled that the Defendant pulled her bathing suit aside and put his mouth
“on [her] butt. . . where the bee sting was.” She stated it was his “lips” that came into contact
with her.
T.B. testified that on or about July 17, 2009, she and the Defendant went to a cabin
belonging to the Defendant’s friend, Max Warren. She stated that she and the Defendant
arrived at the cabin first, and Mr. Warren and his grandson arrived an hour later. When she
and the Defendant first arrived, the Defendant turned on the television to a pornography
channel. T.B. said she did not want to watch pornography and tried to get up and leave, but
the Defendant told her to “come back and sit down” and only turned off the pornography
when he saw Mr. Warren arrive.
T.B. identified pictures of the outside and inside of the Defendant’s house, and the
trial court entered the photographs into evidence. T.B. identified a photograph of the dresser
where the Defendant put the vibrator after he showed it to her, as well as a photo of the
Defendant’s headboard where he kept the Playboy magazines. She also identified pictures
of the electric razor the Defendant used to shave her, the shirt she wore to sleep in his bed,
4
the disposable razor he used to shave her legs, the Playboy magazines, and the Defendant’s
underwear that he wore to bed.
T.B. testified that she did not tell anyone about the incidents until she told her mother
the summer before her eighth grade year. She stated that, during her seventh grade year, she
told her boyfriend about the incidents, but she did not reveal the Defendant’s identity to her
boyfriend. T.B. said that her boyfriend told his mother, who went to the principal, who then
called T.B.’s mother. She recalled she told her boyfriend that she “had been touched by
somebody.” In the principal’s office, T.B. “Basically just said that [she] was fine about it so
that everything would be dropped and we wouldn’t – [she] wouldn’t get in any trouble. . . .”
When asked why she would lie to the principal, T.B. explained that she lied to the principal
because she “just wanted everything dropped and [she] didn’t want to have to go through all
this.” T.B. said that the summer before her eighth grade year she knew that the Defendant
was going to begin picking her up from school again, and she “didn’t want to be around him
anymore,” so she told her mother what had happened.
T.B. testified that, when she told her mother about the incidents with the Defendant,
they went over to S.W.’s house and talked to a law enforcement officer. The next day, T.B.
gave a statement to Lieutenant Felicia Stacy at the sheriff’s department. T.B. recalled telling
Lieutenant Stacy about the razors, Playboy magazines, the Defendant’s underwear, and the
shirt she slept in at the Defendant’s house; the trial court entered all of these items into
evidence.
T.B. testified about an incident when she and the Defendant went deer hunting. T.B.
recalled that, while she and the Defendant were in a deer stand, the Defendant made her “sit
on his lap facing him, and he was kissing [her] and told [her] that’s the way that [she needed]
to kiss [her] boyfriend.”
On cross-examination, T.B. testified that she gave two statements to Lieutenant Stacy,
one on July 29, 2009, and the other on August 1, 2009. T.B. affirmed that everything she
told Lieutenant Stacy was true and accurate. She agreed that she told Lieutenant Stacy that
the Defendant did not put his penis inside of her and that he did not “try to put his finger or
anything else inside of [her].” T.B. testified about the instance during which she told her
boyfriend about the inappropriate touching in October 2007, and was later called to the
principal’s office about what she had said. T.B. agreed that she told the principal that she
had “[done] this to get attention and sympathy.” T.B. also agreed that she had said a person
named “Daniel” had raped her, but it was a “random” name she had picked “out of the air.”
She said she did not identify a specific person.
T.B. testified that, in her July 29 statement, she told Lieutenant Stacy that it was the
Defendant she was talking about when she made her prior allegation to her boyfriend. She
5
testified that she told Lieutenant Stacy that she had only disclosed being “molested or raped”
by the Defendant to her boyfriend and her mother. T.B. stated that her boyfriend would not
know everything that had happened between her and the Defendant, because she was not sure
she had spoken to her boyfriend during the month of July 2009 when the Defendant’s acts
were still ongoing. When shown a document containing the phone records for the
Defendant’s landline telephone, T.B. agreed that, according to the phone records, a call had
been placed from the Defendant’s phone line to T.B.’s boyfriend’s phone. T.B. also testified
that she did not remember if she had communication with anyone on her cellular phone
during the July 29 and August 1 interviews with Lieutenant Stacy.
When asked about her statement to Lieutenant Stacy that the Defendant had not put
anything inside her “private parts,” T.B. explained that she told Lieutenant Stacy that the
Defendant had not put anything inside of her because “[she] was confused as to what
[Lieutenant Stacy] was asking [her].” T.B. reiterated that the Defendant had put his fingers
“inside the lip [of her vagina], but not inside the hole” and stated that the genital area was
hard for a twelve-year-old to understand and describe.
T.B. reiterated that the Defendant asked her if she wanted his vibrator during the same
weekend they went to Mr. Warren’s cabin. She stated that was “the last time” she went to
the Defendant’s house.
T.B. testified that she was grounded as a result of the exchange between her and the
Defendant over her cellular phone use at his house. She explained that the Defendant told
her parents that she threw her cellular phone and that she had pushed him. As a result, her
parents grounded her for the summer. T.B. agreed that being grounded meant her having to
forego a concert she wanted to attend. She agreed that she did not like missing the concert
or having her cellular phone taken away. T.B. confirmed that it was within one or two days
of being grounded and having her cellular phone taken away that she told her mother about
the incidents involving physical contact with the Defendant and provided interviews with
Lieutenant Stacy.
T.B. testified that she was “real familiar” with the inside of the Defendant’s house,
and that she had full access to the house. T.B. agreed that she referred to the Defendant as
“grandad.”
T.B. agreed that she underwent physical examinations by Dr. Tara (Donnelly) Pedigo
in April 2009 and by Dr. Lisa Piercy in August 2009. The records from both examinations
were admitted into the record. T.B. testified that she told Dr. Pedigo that she was not “active
sexually” because she was not having sex at the time. T.B. could not remember, but did not
deny, that she told Dr. Piercy that “a family friend fondled her with his hand o[n] top of my
panties sometimes and on my private during baths[.]” T.B. reiterated that she “didn’t
6
understand everything” she was being asked and that she thought “sexual activity” meant
having sex, which she was not. T.B. further stated that she did not understand what was
meant by “penetrating” and that she was confused in her interview with Lieutenant Stacy.
She said she was similarly confused at trial about the meaning of the word “penetrating.”
On re-direct examination, T.B. agreed that she had “never” said the Defendant had
touched her with his penis. She reiterated that the Defendant put his lips on her buttocks to
suck out a bee sting. T.B. agreed that she “denied sexual activity of any kind” during her
examination with Dr. Pedigo in April 2009, and stated that was before she came forward with
her allegations against the Defendant.
Lieutenant Felicia Stacy testified that she was an investigator with the Madison
County Sheriff’s Department. She agreed that she was assigned this case concerning
possible child sexual abuse. She stated that she conducted an interview with both of the
alleged victims, S.W. and T.B., and that after speaking with them, she prepared a search
warrant for the Defendant’s home. Lieutenant Stacy stated that she was looking for specific
items in the Defendant’s home that T.B. had mentioned during her interview. Lieutenant
Stacy said she was looking for “a white-colored, cream-colored vibrator; was looking for a
white shirt that was cut off below the chest area . . .; I was looking for any Playboy magazine;
I was looking for any disposable razors, was looking for a specific outfit that [T.B.]
described, a blue jean outfit[.]”
Lieutenant Stacy testified that, during the execution of the search warrant, she found
a vibrator, a white shirt that had cutoff sleeves and was cutoff on the bottom, some Playboy
magazines, three blue disposable razors, an electric razor, a razor charger and a cellular
telephone. Lieutenant Stacy testified that the vibrator and the cutoff t-shirt were found in a
dresser near the master bedroom, and that the Playboy magazines were found in the
headboard of the bed in the master bedroom. She stated the electric razor was found in the
master bathroom on top of the sink. She testified that the items listed in the search warrant
were found in the places T.B. had indicated.
On cross-examination, Lieutenant Stacy testified that she had written a list of potential
interviewees, and she agreed that she had not interviewed some of the people on the list.
Dr. Lisa Piercy testified that she was a child abuse pediatrician and had been
practicing in that field since 2005. She testified that she worked primarily at the Child
Advocacy Center in Jackson, Tennessee. Dr. Piercy stated that she saw T.B. on August 21,
2009, after T.B. was referred to her by the Department of Children’s Services for alleged
child sexual abuse. Dr. Piercy stated that she interviewed T.B. and her mother to obtain
T.B.’s medical history and that she also conducted a physical examination on T.B. Dr. Piercy
said she spoke with T.B. and her mother together, then to T.B. alone, and then to T.B.’s
7
mother alone. Dr. Piercy recalled that T.B. said she was there because she had been raped.
T.B. told Dr. Piercy that the conduct had been occurring for approximately two years. T.B.
told Dr. Piercy that a “family friend,” whom she identified as the Defendant, had “fondled
her with his hand on top of [her] panties sometimes and on [her] private during [her] baths.”
T.B. said that she was ten years old when it first happened and that the most recent
occurrence was during the summer of 2009.
Dr. Piercy testified that T.B.’s physical exam was “on the whole normal,” meaning
her genitalia was “fine” and there was “nothing wrong with her.” Dr. Piercy stated that her
physical findings from T.B.’s examination were “consistent” with what T.B. reported had
happened, because T.B. had reported being touched on the outside of her panties, which
would not cause trauma. She said that being touched on the inside or outside of the lips of
her vagina would also not cause trauma. Dr. Piercy stated there was nothing abnormal about
T.B.’s pubic hair. Dr. Piercy testified that T.B.’s medical records contained a prior diagnosis
of oppositional defiant disorder (“ODD”).
Dr. Piercy testified that disclosure of child sexual abuse is the process of a child
telling what abusive event has happened. She said, typically, preteens or younger teenagers
will either “come straight out and tell all” that has happened to them, or “test the waters” by
telling a little bit of the story at a time. She explained that the child might also tell the whole
story of the abuse but change some of the details to gauge the reaction. Dr. Piercy stated that
some children tell someone other than their primary caregiver initially to see how the
secondary person reacts. Dr. Piercy stated that T.B.’s accusation of rape and the subsequent
recant was consistent with the behavior of a sexually abused child.
On cross-examination, Dr. Piercy agreed that it is “possible” for a child with ODD to
falsely accuse someone of rape.
On re-direct examination, Dr. Piercy testified that the she had seen children who had
been sexually abused display behaviors consistent with those attributed to ODD.
Max Warren testified that he had known the Defendant about twenty-five years and
that he had seen T.B. four or five times. He recalled that he, his grandson, the Defendant,
and T.B. had gone to his cabin in July 2009. Mr. Warren agreed that he arrived at the cabin
after the Defendant. He agreed that the television in his cabin has access to the Playboy
channel, but he stated that there is a lock on this channel to prevent kids from watching it.
He stated that only he and his father have the code to unlock it.
On cross-examination, Mr. Warren stated that the Playboy channel is “supposed to be
locked out” because of his grandson, and it stays locked “90 percent of the time.” He stated
that, when he arrived at the cabin, the Defendant was unloading groceries from his car.
8
While the television was on, it was not on the Playboy channel.
Donna Nelson testified that she was a special agent forensic scientist and employed
by the Tennessee Bureau of Investigation (“TBI”). She was qualified as an expert in the field
of DNA analysis. Ms. Nelson testified that she received the evidence collected in this case
from the Madison County Sheriff’s Department. She stated that she also received samples
of T.B.’s and the Defendant’s DNA. Ms. Nelson testified that she tested the disposable razor
and found a DNA profile partially matching that of T.B.’s.
For the Defendant, Don Bell testified that he had known the Defendant for forty to
forty-five years. He said their main connection was “outdoors, hunting, and fishing.” Mr.
Bell recalled that, in the summer of 2009, the Defendant and a “female child” came to fish
in the lake behind Mr. Bell’s house, and the Defendant introduced the child as S.W. Mr. Bell
testified that he spoke to the Defendant after they finished fishing and that the Defendant was
dry, as if he had not been in the lake. He stated that S.W.’s demeanor was normal.
C.O. testified that he knew T.B. from school. He stated that, in 2008, T.B. made a
claim to him that she had been raped by someone at school, and he told the school principal.
C.O. said T.B. then changed her story and said it was the Defendant. He said the principal
asked him to name the student that T.B. had originally identified as the person who raped her,
and C.O. showed the principal his picture in the yearbook. C.O. recalled that the school then
conducted an investigation, but nothing came of it. C.O. testified that he knew T.B. for one
year and that she was “[n]ot that truthful really.”
Bobby McLaughlin testified that he was the principal at Jackson Christian School in
2008 and 2009 when T.B. was a student there. Mr. McLaughlin stated that he received a
phone call from C.O.’s mother about the accusation made by T.B to her son against “another
student.” Mr. McLaughlin stated that he brought T.B., along with her mother and a guidance
counselor, into his office to question her about the “rumor” he had heard. After he
questioned her about the details, T.B. admitted that she had “made the story up.” Mr.
McLaughlin said that, based on his dealings with T.B., he would “not trust her with the
allegations without following up extensively.”
Dr. Tara Pedigo testified that she was a pediatrician at the Jackson Clinic and that she
saw T.B. on April 10, 2009. Dr. Pedigo interviewed T.B. and her mother for T.B.’s medical
history, and she learned that T.B. had accused a boy at school of raping her. She also learned
that T.B. was taking Zoloft for depression and ODD and was being treated at Pathways. Dr.
Pedigo learned from T.B.’s mother that the treatments were not working for T.B. and that she
was getting “worse and worse.” Dr. Pedigo testified that she examined T.B.’s genitalia and
inquired about sexual activity. T.B. “denie[d] sexual activity of any kind” and the exam of
her genitalia produced normal results.
9
On cross-examination, Dr. Pedigo agreed that she had noted in her records, “[T.B.’s]
mother states that T.B. has been very stressed. She states that [T.B.] worries about
everything. When T.B. first started the Zoloft, it was mostly for feelings of sadness.” Dr.
Pedigo agreed that sexual molestation could cause depression.
Dr. Robert Kennon testified that he was a licensed psychologist in Jackson,
Tennessee, and that he primarily performed forensic psychological evaluations related to
legal issues. He testified that he had evaluated children who had been sexually abused. Dr.
Kennon testified as an expert witness in the field of forensic psychology. Dr. Kennon
testified that he was familiar with ODD and said that related behaviors are hostile behaviors,
problems with aggression, and generic resistence to authority. Dr. Kennon testified that in
interviewing children to determine whether or not the child had been a victim of sexual
abuse, he had seen a lot of false reports of abuse, and he noted that the false reports are often
made to “gain an advantage.”
Dr. Kennon went on to discuss the characteristics and behaviors of sexually abused
children and children with ODD. He stated that children with ODD often display behaviors
that show the child is actively defying authority, and that they are good at manipulating the
system. Dr. Kennon testified that he was in the courtroom when the victims testified, and he
stated that, while he did not evaluate T.B. personally, the diagnosis for a child with ODD is
the opposite diagnosis to that of a child who has been sexually abused. He stated that T.B.’s
testimony lacked detail and that she did not testify to several of the factors related to sexual
abuse. He stated that her responses sounded “rote” and “repetitious” and lacked the detail
he would expect to hear from an abuse victim.
On cross-examination, Dr. Kennon agreed that he was not evaluating children at the
time of trial. He stated that he had performed evaluations in three to four hundred cases in
the year leading up to this trial. Dr. Kennon agreed that if a child is “repetitiously abused”
over a period of years, it would be possible that the “information would blur together” for
that child.
On redirect-examination, Dr. Kennon testified that sexual abusers do not typically
abuse their victims in the presence of others and that it is much more common for the abuser
to isolate the victim. He testified that it would be “odd” for the abuser to a give a house key
to the parent of a victim.
On recross-examination, Dr. Kennon agreed that it would be important for an abuser
to win trust with a victim or with the victim’s parents to give the abuser access to the child.
At the close of proof, the jury convicted the Defendant of ten counts of attempted
aggravated sexual battery, eleven counts of rape of a child, and one count of aggravated
10
sexual battery.2
B. Sentencing
The trial court held a sentencing hearing on June 29, 2011, during which the following
evidence was presented: Tracy Shotz testified that she was a licensed clinical social worker
with specific expertise in working with children who have been physically and sexually
abused. She testified that she met with T.B. during the course of her work at Quinco Mental
Health Center in January 2010. Ms. Shotz stated that she discussed the abuse with T.B. and
that, based on reports from T.B. and T.B.’s mother, Ms. Shotz learned that T.B. had shown
significant declines in her behavior and her grades. T.B. also presented many symptoms that
are “right on with a child who has been sexually abused.” She testified that T.B. was very
“distraught” when she first came to therapy, but she participated actively.
Ms. Shotz recalled that T.B. felt betrayed by the Defendant and that she was fearful
and felt unsafe, “like she was being stalked.” Ms. Shotz testified that T.B. felt she was not
safe, and that the family decided to move from the area because T.B. did not feel safe in her
day-to-day environment. She recalled that T.B. regarded the Defendant as a family member
and thus the Defendant’s abuse created a sense of distrust for T.B. Ms. Shotz said that the
time T.B. attempted to tell “somebody” about the physical contact, and the fact that nothing
came of that, also contributed to her feelings of distrust. Ms. Shotz also discussed T.B.’s
depression and T.B.’s feelings of anger, another symptom indicative of a child who had been
sexually abused.
On cross-examination, Ms. Shotz agreed that back-talking, anger, and depression are
all symptoms of ODD. She stated she had not treated T.B. for fifteen months.
On redirect examination, Ms. Shotz testified that ODD is a long-lasting diagnosis that
is linked to depression. She stated that ODD is also linked to a person who had been sexually
abused by an authority figure.
On recross-examination, Ms. Shotz testified that she did not agree with Dr. Kennon’s
testimony that the typical profile of a sexually abused child is completely opposite to that of
a child with ODD. Ms. Shotz stated that there are similar overlapping behaviors in those two
profiles, the back-talking, “being mouthy,” the irritability, withdrawal, and effect on school
2
W e note that the Defendant was acquitted of all counts in the indictment pertaining to S.W . The Defendant was also
acquitted of the remaining five counts of rape of a child, eleven counts of aggravated sexual battery, two counts of sale,
loan or exhibition of material harmful to minors, and one count of indecent exposure in the indictment pertaining to T.B.
For the remainder of this opinion, we consider only those counts for which he was convicted.
11
performance. She also stated that making a “false” allegation of rape, and then saying it was
done for attention, is a “very normal part of a child who’s been sexually abused.” She stated
that clinical depression is not caused by being grounded for the summer or missing a concert,
which she termed situational depression. Ms. Shotz testified that she had based her diagnosis
of T.B. on the history she had received from T.B.’s family, her medical records, the length
of time T.B.’s symptoms displayed, and the fact that T.B. had no prior history of the
behaviors before the beginning of the reported sexual abuse.
Charles Stanfield testified that he had known the Defendant for over twenty-one years.
He explained that as both men are “shooter enthusiasts,” a friendship grew from this mutual
interest. He stated that the two men had made over ten trips across the United States
together, staying in hotel rooms together for a week at a time. He testified that he and the
Defendant would eat together every weekend. Mr. Stanfield stated that, in twenty-one years,
he had never seen the Defendant look at a Playboy magazine, or do anything that had any
context to sexual activity, including during their trips to Las Vegas.
Mr. Stanfield testified that the Defendant would bring people to Mr. Stanfield’s
shooting range and teach them to shoot for free, including T.B. at one point. He testified that
the Defendant did it because he liked to help people. He agreed that the Defendant was a
Madison County constable for a period of time and that he set up a qualification class for the
constables. The Defendant also taught handgun carry permit classes and donated the money
he made from the classes to the Tennessee Sports Foundation.
Chris Chism testified that he had known the Defendant for fifteen years and that he
had never known the Defendant to be angry or sad. He described the Defendant as an honest
and generous person with a good work ethic.
Linda Lott testified that she had known the Defendant for six years and that she and
her family were good friends with him. She stated he had never done anything to make her
or her children feel uncomfortable around him or feel like they could not trust him. She said
her children never talked about being scared of him or ever felt that he was going to hurt
them. Ms. Lott stated that the Defendant was “a part of [their] family.”
Richard Lott testified he had known the Defendant “well” for seven or eight years.
Mr. Lott said he was very protective of his children and that the Defendant had never done
anything to make Mr. Lott feel uncomfortable about having his children around him. He
stated that the “situation” did not seem to be in the Defendant’s character.
Several other witnesses testified that they had known the Defendant for many years,
and they knew him to be a good and honest person. Those witnesses who had children stated
that the Defendant had never exhibited any inappropriate behavior around their children. The
12
witnesses testified to the Defendant’s good character, work ethic, and trustworthiness.
The trial court considered the evidence presented, along with the presentence report,
and imposed five year sentences for each of the ten attempted aggravated sexual battery
convictions, a ten year sentence for the aggravated sexual battery conviction, and twenty-five
year sentences for each of the eleven rape of a child convictions. The trial court ordered the
sentences for the attempted aggravated sexual battery and rape of a child convictions to run
concurrently, and the sentence for the aggravated sexual battery conviction to run
consecutively, for a total effective sentence of thirty-five years in the Tennessee Department
of Correction. It is from these judgments that the Defendant now appeals.
II. Analysis
On appeal, the Defendant contends that: (1) the evidence presented at trial is
insufficient to sustain his convictions; (2) the trial court erred when it refused to admit into
evidence the mental health record of T.B.; (3) the trial court erred when it refused to
sequester Lieutenant Stacy during the two victims’ testimony; (4) the State improperly
demonstrated that the vibrator was still operable on battery power during closing arguments;
(5) the State improperly commented on the author of the jury questionnaire during jury
selection; (6) the State improperly argued that Dr. Kennon was a “hired gun,” and the closing
argument was “inflammatory” and violated the Defendant’s Sixth Amendment right to a fair
trial; (7) the trial court improperly instructed the jury that “recklessly” was the mens rea of
the indicted offenses; (8) the trial court improperly instructed the jury by charging the mens
rea element in “disjunctive” form; (9) the trial court erred in imposing consecutive sentences;
(10) the trial court failed to instruct the jury on the legal effect of the dismissed counts in the
indictment; and (11) the trial court erred in placing the victim’s medical records under seal
and denying the Defendant the opportunity to review the records. Due to the similar nature
of the Defendant’s claims (4) and (6), as well as (7) and (8), we will combine them,
respectively, and address them as two issues.
A. Sufficiency of the Evidence
The Defendant contends that the evidence presented at trial was legally insufficient
to convict him of any of the charges against him. The Defendant argues that the dates
specified in the indictment for these crimes were not established at trial, and that the
credibility of T.B. was “repeatedly impeached,” rendering her testimony “unreliable and
unbelievable[.]” The State counters that the evidence is sufficient to support the Defendant’s
convictions, and that the testimony presented the offenses sequentially, thereby establishing
that the crimes occurred between the years 2007 and 2009. The State further argues that a
reasonable jury could find that the testimony sufficiently established that the offenses
occurred on the dates testified to by T.B. The State notes that, notwithstanding the
13
inconsistencies in T.B.’s testimony, the jury was free to accredit her testimony. We agree
with the State.
When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P.
13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). A conviction may be
based entirely on circumstantial evidence where the facts are “so clearly interwoven and
connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant
alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The jury decides the weight to
be given to circumstantial evidence, and “[t]he inferences to be drawn from such evidence,
and the extent to which the circumstances are consistent with guilt and inconsistent with
innocence, are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn.
2006) (citations omitted).
In determining the sufficiency of the evidence, this Court should not re-weigh or re-
evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of witnesses, the weight and
value to be given the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286
S.W.2d at 859. “A guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the
State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973). The Tennessee Supreme Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the jury
see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of
justice to determine the weight and credibility to be given to the testimony of
witnesses. In the trial forum alone is there human atmosphere and the totality
of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
14
drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
The evidence, viewed in the light most favorable to the State, included the victim’s
testimony that she spent the night at the Defendant’s house on numerous occasions during
2007, 2008, and 2009. The victim testified that, during her over night stays, the Defendant
established a routine with her. On those occasions, the Defendant washed her in the bathtub
with a wash rag and used the wash rag to wash her genital area and her breasts. She stated
that he would put his fingers inside of her vaginal lips when washing her genital area. The
victim recalled that the Defendant touched her in the same way on fifteen different occasions
and that she had documented a list of the dates when the touching occurred. We will address
separately each of the counts for which the Defendant was convicted.
1. Rape of a Child
The Defendant was convicted of eleven counts of rape of a child. A conviction for
rape of a child requires “the unlawful sexual penetration of a victim by the defendant or the
defendant by a victim, if the victim is more than (3) years of age but less than thirteen (13)
years of age.” T.C.A. § 39-13-522(a) (2010). Tennessee Code Annotated section 39-13-
501(6) and (7) defines sexual penetration 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 . . . .” There is sexual penetration, in a legal sense, if there is the “slightest penetration”
of a female’s sexual organ. State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001). This includes
the “outer folds” of the vagina. Id.
In count 3, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed rape of a child by
the act of slight digital penetration of T.B.’s genitals by use of the Defendant’s fingers
covered with a washcloth, occurring on or about September 28, 2007. The evidence,
considered in the light most favorable to the State, shows that on September 28, 2007, T.B.
spent the night at the Defendant’s house, and that the Defendant took her clothes off and put
her in the bath. T.B. testified that while in the bath, the Defendant would wash her body and
touch her breasts and private parts, touching inside the lips of her genitals. This is sufficient
to convict the Defendant of rape of a child alleged in count 3.
In count 6, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed rape of a child by
15
the act of slight digital penetration of T.B.’s genitals by use of the Defendant’s fingers
covered with a washcloth, occurring on or about December 7, 2007. The evidence,
considered in the light most favorable to the State, shows that on December 7, 2007, the
Defendant gave the victim a bath and when he washed her, he “put his fingers and the wash
rag inside the lips” of her genitals. This is sufficient to convict the Defendant of rape of a
child alleged in count 6.
In count 8, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed rape of a child by
the act of slight digital penetration of T.B.’s genitals by use of the Defendant’s fingers
covered with a washcloth, occurring on or about December 15, 2007. The evidence,
considered in the light most favorable to the State, shows that on December 15, 2007, the
Defendant took the victim’s clothes off and gave the victim a bath. The victim testified that
when he washed her in the bathtub, he “went inside the lips” of her genitals. This is
sufficient to convict the Defendant of rape of a child alleged in count 8.
In count 11, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed rape of a child by
the act of slight digital penetration of T.B.’s genitals by use of the Defendant’s fingers
covered with a washcloth, occurring on or about March 15, 2008. The evidence, considered
in the light most favorable to the State, shows that on March 15, 2008, the Defendant “took
[the victim’s clothes off and put [her] in the bath and washed [her],” and the Defendant
“[went] with his fingers in the washrag inside the lips” of her genitals. This is sufficient to
convict the Defendant of rape of a child alleged in count 11.
In count 13, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed rape of a child by
the act of slight digital penetration of T.B.’s genitals by use of the Defendant’s fingers
covered with a washcloth, occurring on or about March 21, 2008. The evidence, considered
in the light most favorable to the State, shows that on March 21, 2008, the victim went to the
Defendant’s house after a hunting trip where the Defendant “took [her] clothes off and put
[her] in the bathtub, washed [her]. He went inside the lips [of her genitals.]” This is
sufficient to convict the Defendant of rape of a child alleged in count 13.
In count 15, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed rape of a child by
the act of slight digital penetration of T.B.’s genitals by use of the Defendant’s fingers
covered with a washcloth, occurring on or about July 4, 2008. The evidence, considered in
the light most favorable to the State, shows that on July 4, 2008, the victim spent the
weekend at the Defendant’s house and they shot fireworks at his house. She testified that
during the evening, the Defendant “took [her] clothes off and sat [her] in the bathtub, and
16
washed [her] body. He went inside the lips [of her genitals.]” This is sufficient to convict
the Defendant of rape of a child alleged in count 15.
In count 17, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed rape of a child by
the act of slight digital penetration of T.B.’s genitals by use of the Defendant’s fingers
covered with a washcloth, occurring on or about August 9, 2008. The evidence, considered
in the light most favorable to the State, shows that on August 9, 2008, the Defendant “took
[her] clothes off, sat [her] in the bathtub, washed [her] body. [The Defendant] went inside
the lips [of her genitals.]” This is sufficient to convict the Defendant of rape of a child
alleged in count 17.
In count 19, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed rape of a child by
the act of slight digital penetration of T.B.’s genitals by use of the Defendant’s fingers
covered with a washcloth, occurring on or about November 8, 2008. The evidence,
considered in the light most favorable to the State, shows that on November 8, 2008, the
victim went back to the Defendant’s house after going hunting. At his house, the Defendant
“took [her] clothes off and sat [her] in the bathtub. Then [the Defendant] wash[ed] [her]
body. He went inside the lips [of her genitals.]” This is sufficient to convict the Defendant
of rape of a child alleged in count 19.
In count 21, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed rape of a child by
the act of slight digital penetration of T.B.’s genitals by use of the Defendant’s fingers
covered with a washcloth, occurring on or about November 15, 2008. The evidence,
considered in the light most favorable to the State, shows that on November 15, 2008, the
victim spent the weekend at the Defendant’s house after going hunting. She testified that the
same “bath thing” occurred: the Defendant took her clothes off, sat her in the bathtub, and
washed her body. He went inside “the lips” of her genitals when washing her. This is
sufficient to convict the Defendant of rape of a child alleged in count 21.
In count 27, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed rape of a child by
the act of slight digital penetration of T.B.’s genitals by use of the Defendant’s fingers
covered with a washcloth, occurring on or about January 17, 2009. The evidence, considered
in the light most favorable to the State, shows that on January 17, 2009, the victim was on
a “juvenile deer hunt” with the Defendant. She testified that after the hunt, she drove with
the Defendant back to his house, where the Defendant took her clothes off, sat her in the
bathtub, and washed her body. He went inside “the lips” of her genitals when washing her.
This is sufficient to convict the Defendant of rape of a child alleged in count 27.
17
In count 31, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed rape of a child by
the act of slight digital penetration of T.B.’s genitals by use of the Defendant’s fingers
covered with a washcloth, occurring on or about March 7, 2009. The evidence, considered
in the light most favorable to the State, shows that on March 7, 2009, the victim recalled that
she had a “cheer[leading] competition” and she spent the night with the Defendant that night.
She testified that while she stayed there, the Defendant took her clothes off, sat her in the
bathtub, and washed her body. He went inside “the lips” of her genitals when washing her.
This is sufficient to convict the Defendant of rape of a child alleged in count 31.
The evidence presented at trial, viewed in the light most favorable to the State, proved
the required elements for eleven offenses of rape of a child. The Defendant is not entitled
to relief.
2. Aggravated Sexual Battery
The jury convicted the Defendant of one count of aggravated sexual battery. This
requires proof beyond a reasonable doubt that: (1) the Defendant had “unlawful sexual
contact,” which the Code defines as the intentional touching of intimate parts with the
purpose of sexual arousal or gratification, with the victim; and (2) that the victim was less
than thirteen years of age. T.C.A. §§ 39-13-501(6), -504(a)(1)-(4) (2009). Unlawful sexual
contact, in turn, is defined as including:
the intentional touching of the victim’s, the defendant’s, or any other person’s
intimate parts, or the intentional touching of the clothing covering the
immediate area of the victim’s, the defendant’s, or any other person’s intimate
parts, if that intentional touching can be reasonably construed as being for the
purpose of sexual arousal or gratification[.]
T.C.A. § 39-13-501 (2010).
In count 37, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed aggravated sexual
battery by the act of touching T.B.’s buttocks at his residence, occurring on July 10, 2009,
and/or July 11, 2009. The evidence, considered in the light most favorable to the State,
shows that on July 10, 2009, and/or July 11, 2009, the victim recalled that she was in her
bathing suit at the Defendant’s house when she was stung by a bee on her “butt.” The
Defendant called T.B.’s mother, who told him to give her a Benadryl. T.B. recalled that the
Defendant could not find any, and that he pulled her bathing suit aside and put his mouth on
her buttocks, where the bee sting was. T.B. said it was the Defendant’s lips that came into
contact with her buttock. This is sufficient to convict the Defendant of aggravated sexual
18
battery as alleged in count 37. The Defendant is not entitled to relief.
3. Attempted Aggravated Sexual Battery
The jury also convicted the Defendant of ten counts attempted aggravated sexual
battery, for which the State must prove that the Defendant acted with the intent to complete
a course of action that would constitute aggravated sexual battery and that his conduct
constituted a substantial step toward the commission of the offense. See T.C.A. § 39-12-
101(a)(3) (2010). The Defendant’s conduct does not constitute a “substantial step . . . unless
[his] entire course of action is corroborative of the intent to commit the offense.” Id. § 39-
12-101(b).
In count 1, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed aggravated sexual
battery by the act of touching T.B.’s breasts on August 11, 2007. The evidence, considered
in the light most favorable to the State, shows that on August 11, 2007, the victim recalled
that she spent the night at the Defendant’s house while her parents went out and that she slept
in the same bed as the Defendant. The victim testified that while they lay in bed together,
the Defendant touched her breasts. This evidence is sufficient from which a jury could
conclude that the Defendant committed the lesser-included offense of attempted aggravated
sexual battery.
In count 2, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed aggravated sexual
battery by the act of touching T.B.’s breasts on September 28, 2007 and/or September 29,
2007. The evidence, considered in the light most favorable to the State, shows that on
September 28 or 29, 2009, the victim recalled that her parents went to the races and she spent
the night at the Defendant’s house. The victim testified that she slept in the same bed as the
Defendant, and that her touched her breasts while they lay together. This evidence is
sufficient from which a jury could conclude that the Defendant committed the lesser-included
offense of attempted aggravated sexual battery.
In count 4, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed aggravated sexual
battery by the act of touching T.B.’s breasts in October, 2007. The evidence, considered in
the light most favorable to the State, shows that in October 2007, the victim recalled that she
went on a “juvenile hunt” with the Defendant, and that she slept in bed with the Defendant
at his house. She recalled that the “same thing” happened while they were in bed together;
the Defendant “put his arms around [her],” and touched her breasts. This evidence is
sufficient from which a jury could conclude that the Defendant committed the lesser-included
offense of attempted aggravated sexual battery.
19
In count 5, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed aggravated sexual
battery by the act of touching T.B.’s breasts on December 7, 2007, and/or December 8, 2007.
The evidence, considered in the light most favorable to the State, shows that on December
7 or 8, 2007, the victim recalled that she and the Defendant went duck hunting together and
then went “home” to his house. The victim testified that she slept in the Defendant’s bed
with him, in a “little cutoff t-shirt and underwear,” and that the Defendant slept in his
underwear. She testified that the Defendant touched her breasts while they were in bed. This
evidence is sufficient from which a jury could conclude that the Defendant committed the
lesser-included offense of attempted aggravated sexual battery.
In count 7, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed aggravated sexual
battery by the act of touching T.B.’s breasts on December 15, 2007, and/or December 16,
2007. The evidence, considered in the light most favorable to the State, shows that on
December 15 or 16, 2007, the victim recalled that she spent the night at the Defendant’s
house after they went hunting and that the sleeping arrangement was the “same,” together in
his bed, and that the Defendant “touched her breasts.” This evidence is sufficient from which
a jury could conclude that the Defendant committed the lesser-included offense of attempted
aggravated sexual battery.
In count 10, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed aggravated sexual
battery by the act of touching T.B.’s breasts on March 15, 2008, and/or March 16, 2008. The
evidence, considered in the light most favorable to the State, shows that on March 15 or 16,
2008, the victim recalled that she participated in a hunter safety class and then went back to
the Defendant’s house. She testified that the sleeping arrangement was the same, she slept
in the same cutoff t-shirt and underwear and the Defendant wore underwear, and the
Defendant’s “arm was around [her],” and he touched her breasts. This evidence is sufficient
from which a jury could conclude that the Defendant committed the lesser-included offense
of attempted aggravated sexual battery.
In count 18, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed aggravated sexual
battery by the act of touching T.B.’s breasts on November 7 through 9, 2008. The evidence,
considered in the light most favorable to the State, shows that on November 7 through 9,
2008, the victim recalled that she and the Defendant went hunting and then she spent the
night at his house. The victim testified that she slept in the same bed as the Defendant, and
she wore the cutoff t-shirt and underwear, and he wore underwear. She stated that the
Defendant touched her breasts while they were sleeping. This evidence is sufficient from
which a jury could conclude that the Defendant committed the lesser-included offense of
20
attempted aggravated sexual battery.
In count 26, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed aggravated sexual
battery by the act of touching T.B.’s breasts on January 17, 2009, and/or January 18, 2009.
The evidence, considered in the light most favorable to the State, shows that on January 17
or 18, 2009, the victim recalled that she went on a “juvenile hunt” with the Defendant and
while they slept in the same bed, he touched her breasts. This evidence is sufficient from
which a jury could conclude that the Defendant committed the lesser-included offense of
attempted aggravated sexual battery.
In count 29, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed aggravated sexual
battery by the act of touching T.B.’s breasts on February 28 through March 1, 2009. The
evidence, considered in the light most favorable to the State, shows that on February 28
through March 1, 2009, the victim recalled that it was her mother’s birthday and “we got a
really big snow.” The victim testified that she went with the Defendant to Max Warren’s
cabin to play in the snow, and then went back to the Defendant’s house. She testified that
the sleeping arrangement was the same and the Defendant touched her breasts. This evidence
is sufficient from which a jury could conclude that the Defendant committed the lesser-
included offense of attempted aggravated sexual battery.
In count 30, based upon the allegations in the indictment and the subsequent election
of offenses by the State, the State alleged that the Defendant committed aggravated sexual
battery by the act of touching T.B.’s breasts on March 7, 2009. The evidence, considered in
the light most favorable to the State, shows that on March 7, 2009, the victim recalled that
she spent the night at the Defendant’s house while her parents went out and that she slept in
the same bed as the Defendant. The victim testified that while they lay in bed together, the
Defendant was wearing underwear and a t-shirt and touched her breasts. This evidence is
sufficient from which a jury could conclude that the Defendant committed unlawful sexual
contact with the victim’s intimate parts and that the Defendant acted with the intent to
commit unlawful sexual contact; thus, the evidence is sufficient to convict the Defendant of
attempted aggravated sexual battery alleged in count 30.
The Defendant contends that the evidence does not establish the specific dates alleged
in the indictments. We disagree. The State established that these events began in 2007 and
continued until 2009, and questioned the victim about the dates of the incidents in sequential
order, beginning with an incident on September 28, 2007, and concluding with an incident
on March 7, 2009. As the Defendant points out, neither the State nor the victim specified the
year for several of the incidents; however the month and day was always established;
therefore, the jury, could reasonably infer the year of each incident, based on the sequence
21
of the years during which the events occurred.
The Defendant also contends that the victim’s testimony was not credible and was
impeached on multiple occasions. As we earlier noted, questions of credibility are left to the
jury, and as evidenced by its verdict, the jury accredited the victim’s testimony and her
accounts of the multiple times the Defendant touched her genital area and breasts. See
Bland, 958 S.W.2d at 659. We will not disturb the jury’s verdict. The Defendant is not
entitled to relief on this issue.
B. Introduction of Victim’s Mental Health Records Into Evidence
The Defendant next contends that the trial court erred when it refused to admit into
evidence T.B’s mental health record from a Pathways treatment facility. The Pathways
record contained information about T.B.’s previous accusation of rape, made initially to her
boyfriend. The State contends that T.B. admitted under oath that she had made the prior
accusation, and, thus, there was “nothing for the [D]efendant to impeach.” The State further
contends that extrinsic evidence is inadmissible for impeachment, and, even assuming error,
the exclusion of the medical record did not prejudice the Defendant. We agree with the
State.
The admission of evidence is a matter within the trial court’s discretion, and a decision
to admit or exclude evidence will not be disturbed on appeal absent a clear abuse of that
discretion. State v. Carroll, 36 S.W.3d 854, 867 (Tenn. Crim. App. 1999). Rule 401 of the
Tennessee Rules of Evidence provides that “‘[r]elevant evidence’ means 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.” Generally,
relevant evidence is admissible, while irrelevant evidence is inadmissible. Tenn. R. Evid.
402.
Tennessee Code Annotated section 33-3-105 addresses the disclosure of confidential
mental health records and states in relevant part:
Information that is confidential under § 33-3-103 3 may be disclosed without
3
Section 33-3-103 states:
Confidentiality of mental health records.
All applications, certificates, records, reports, legal documents, and pleadings made and all
information provided or received in connection with services applied for, provided under,
or regulated under this title and directly or indirectly identifying a service recipient or
22
consent of the service recipient if:
(3) As a court orders, after a hearing, upon its determination that disclosure is
necessary for the conduct of proceedings before it and that failure to make the
disclosure would be contrary to public interest or to the detriment of a party to
the proceedings[.]
This Court has held that mental health records governed by Section 33-3-103 are
subject to in camera review. See State v. Jeffrey R. Allen and Judge Jennings Michael Coen,
No. 03C01-9708-CC-00367, 1999 WL 5173, at *3-4 (Tenn. Crim. App., at Knoxville, Jan.
8, 1999), no Tenn. R. App. P. 11 filed; State v. Brown, 552 S.W.2d 383, 387 (Tenn. 1977).
At trial, the Defendant sought to introduce the mental health record as a self-
authenticating document. The State objected on the grounds that a proper foundation could
not be laid for the document, because the creator was not available to testify. The State also
objected on the grounds that the document was not relevant. The trial court noted that it had
reviewed T.B.’s mental health records in camera and disclosed to the Defendant any portion
of them that it found “could possibly be relevant.” The trial court sustained the State’s
objection to the introduction of the record on the grounds that the victim had testified about
the portion of the record with which the Defendant sought to impeach her, and, thus, the
evidence contained in the mental health record was “before this jury, in more than one form.”
The trial court also pointed out that the author of the document was not present in court to
testify as to its foundation.
We disagree with the Defendant’s contention that this was an abuse of the trial court’s
discretion. We have reviewed the sealed record and conclude that its introduction would be
cumulative, in that the evidence contained in the sealed document which the Defendant
sought to use to impeach the victim was already before the jury. The victim testified on
direct examination that she told her boyfriend about the sexual abuse. She said that she did
not reveal the Defendant’s name, instead giving a “random” name. She stated that, when her
school principal investigated her accusation, she told him she had made it up in order to
avoid getting into trouble. On cross-examination, the victim confirmed her testimony on
direct regarding her disclosure to her boyfriend and subsequent denial to her school principal.
The victim agreed that she recanted, telling the principal that she had made the accusation
to get attention and sympathy. The Defendant’s counsel had ample opportunity to question
the victim about her prior accusation, why she later recanted, and why she did not reveal the
perpetrator’s true identity. The mental health record the Defendant sought to introduce,
former service recipient shall be kept confidential and shall not be disclosed by any person
except in compliance with this part.
23
which made note of this prior accusation, was not relevant to impeach the victim, as she was
questioned at length about it by both the State and the defense. The trial court did not abuse
its discretion when it sustained the State’s objection to the introduction of the mental health
record. The Defendant is not entitled to relief.
C. Rule 615 Exclusion of Lieutenant Stacy
The Defendant contends that the trial court erred in refusing to “sequester” the State’s
designated witness, Lieutenant Stacy, during the victims’ testimony, given the “central
nature” of the victims’ testimony to that of Lieutenant Stacy’s. The Defendant further
contends that, if Lieutenant Stacy as the State’s designated witness was not going to be
sequestered, Lieutenant Stacy should have testified first. The State responds that the
Defendant cannot show that the trial court abused its discretion in refusing to exclude
Lieutenant Stacy from the courtroom during the victims’ testimony, and that the Defendant
cannot point to prejudice suffered by him. We agree with the State.
Tennessee Rule of Evidence 615 provides that “[a]t the request of a party the court
shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory
hearing.” The rule, however, does not authorize the exclusion of “a person whose presence
is shown by a party to be essential to the presentation of the party’s cause.” Tenn. R. Evid.
615. Our Supreme Court summarized the law relating to sequestration as follows:
The sequestration rule is designed to prevent witnesses from hearing the
testimony of other witnesses and subsequently adjusting their testimony. State
v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992). When a sequestration rule
violation is raised on appeal, the court shall consider the seriousness of the
violation and the prejudice, if any, suffered by the defendant. Id. at 68-69.
State v. Reid, 164 S.W.3d 286, 342 (Tenn. 2005). When a prosecutor designates an
investigating officer, that officer should testify first at trial to comply with the purpose of the
rule, which is to prevent one witness from hearing the testimony of another and adjusting his
testimony accordingly. Mothershed v. State, 578 S.W.2d 96, 100-01 (Tenn. Crim. App.
1978). When the State’s designated witness does not testify first, a defendant must show that
a witness improperly changed his or her testimony after hearing other witnesses testify. State
v. Sexton, 724 S.W.2d 371, 374 (Tenn. Crim. App. 1986).
Placing witnesses under the sequestration rule or exempting them is within the sound
discretion of the trial court. State v. Taylor, 645 S.W.2d 759 (Tenn. Crim. App. 1982). The
trial court’s decision will not be disturbed absent a showing that “such abuse worked to the
prejudice of the complaining party.” Id. (citing McCravey v. State, 455 S.W.2d 174 (Tenn.
Crim. App. 1970)).
24
In this matter, when the trial court ordered all witnesses to be excluded from the
courtroom, the State requested that Lieutenant Stacy be allowed to remain pursuant to Rule
615. The State contended that her presence as the lead detective in this case was “essential”
to the presentation of its case. In ruling that Lieutenant Stacy would be allowed to remain
in the courtroom, the trial court stated:
The Court does note that there are 44 counts involved in this case. It’s a
substantial case as far as the number of counts, and I’m going to allow under
the exception of 615 [Lieutenant Stacy] to remain and then ask the State to
move as quickly as possible to get her on . . . . I believe that exception is
permissible in my discretion.
The Defendant has failed to show that Lieutenant Stacy improperly changed her
testimony after hearing S.W. and T.B. testify. The victims each testified to their encounters
with the Defendant. Lieutenant Stacy testified regarding her interviews with the victims, the
subsequent search of the Defendant’s home, and the recovery of evidence. The Defendant
has not offered any specific instance or example of testimony in support of his assertion that
Lieutenant Stacy altered her testimony based on S.W. or T.B’s testimony. The Defendant
merely asserts that Lieutenant Stacy “conformed” her testimony to that of the victims,
without showing any instances of the same throughout her testimony. Further, the Defendant
has not identified the prejudice he suffered due to Lieutenant Stacy’s presence during the first
two witnesses’ testimony, and our review of the record does not reveal any instance where
Lieutenant Stacy improperly altered her testimony based on the testimony of the victims.
Accordingly, we conclude that the Defendant has not shown that he was prejudiced, and he
is not entitled to relief on this issue.
D. State’s Closing Argument
The Defendant contends that the State’s closing argument was improper because: (1)
the State demonstrated during the closing argument that the vibrator introduced as an exhibit
at trial was still functioning on battery power, although the same had not been demonstrated
when the vibrator was introduced through Lieutenant Stacy’s testimony; and (2) the State
argued that Dr. Kennon was a “hired gun,” which was not a “proper fact of the case” and was
inflammatory in violation of the Defendant’s Sixth Amendment rights. The State responds
that the demonstration of the vibrator was a “proper rebuttal to the [D]efendant’s closing
argument,” and that, even assuming error in the demonstration, the jury was free to examine
the vibrator during deliberations. The State also responds that the “hired gun” comment was
in response to the Defendant’s closing argument and was within the bounds of appropriate
argument. The States further contends that, assuming error, the comment did not affect the
verdict, as evidenced by the fact that the Defendant was acquitted of some charges and found
25
guilty of lesser-included offenses of other charges.
“Courts have recognized that closing argument is a valuable privilege afforded to the
State and the defense and have afforded wide latitude to counsel in arguing their cases to the
jury.” State v. Cleveland, 959 S.W.2d 548, 551 (Tenn. 1997) (citing State v. Bigbee, 885
S.W.2d 797, 809 (Tenn. 1994)). We have recognized five general areas of prosecutorial
misconduct: (1) intentionally misstating the evidence or misleading of the jury on the
inferences it can draw; (2) expressing personal beliefs or opinions; (3) inflaming or
attempting to inflame the passions or prejudices of the jury; (4) adding outside issues to the
guilt or innocence issue; and (5) arguing or referring to outside facts. State v. Goltz, 111
S.W.3d 1, 5-6 (Tenn. Crim. App. 2003).
Tennessee Rule of Criminal Procedure 29.1(b) allows a closing argument to address
any evidence introduced at trial. In addition to addressing the evidence, parties may also
argue “reasonable inferences.” State v. Chico McCracken, No. W2001-03176-CCA-R3-CD,
2003 WL 1618082, at *8 (Tenn. Crim. App., at Jackson, Mar. 24, 2003), perm. app. denied
(Tenn. Sept. 2, 2003). When there is improper argument, the court must test whether the
inflammatory statement negatively impacted the Defendant. To measure this impact, five
factors should be considered: “(1) the facts and circumstances of the case; (2) any curative
measures undertaken by the court and the prosecutor; (3) the intent of the prosecution; (4)
the cumulative effect of the improper conduct and any other errors in the record; and (5) the
relative strength or weakness of the case.” Goltz, 111 S.W.3d at 5-6. Curative measures by
the court, such as proper jury instructions, will likely render the misconduct harmless.
McCracken, 2003 WL 1618082, at *8. We review this issue under the abuse of discretion
standard. State v. Hall, 976 S.W.2d 121, 157 (Tenn. 1998).
A point of consideration is whether an argument is made in response to a defendant’s
comment or argument. Rebuttal argument is limited to the subject matter covered in the
State’s opening argument and the defendant’s intervening argument. Tenn. R. Crim. P.
29.1(b).
We note initially that the Defendant was acquitted of the charge of exhibition of
material harmful to minors which was based upon the Defendant’s alleged conduct of
showing the vibrator to T.B. The vibrator at issue was introduced as an exhibit at trial,
through the testimony of Lieutenant Stacy and the victim; the victim stated that the
Defendant had asked her if she wanted to see the vibrator, and, when she declined, he put it
back in the dresser, where it was later found by Lieutenant Stacy. Because the vibrator was
introduced into evidence at trial, its use in closing arguments was proper. State v. Sutton, 562
S.W.2d 820 (Tenn. 1978). The Defendant’s attorney, in his closing argument, argued that
the victim had “been through everything” in the Defendant’s house. He argued that the
Defendant was grieving the death of his wife, and too distraught to “move her stuff,”
26
implying that the vibrator was hers.
In its rebuttal, the State sought to turn on the vibrator for the jury. The Defendant
objected, and the following exchange occurred:
Counsel for State: [The Defendant] is arguing in a way – he’s insinuating that
[the vibrator] belonged to [his late wife], I would assume.
Counsel for Defendant: Objection to [a demonstration] he’s about to do.
....
State: It’s a piece of evidence. It’s been entered. The jury has a right to
inspect evidence that’s been entered.
....
(Bench conference) Counsel for Defendant: Just as long as we’re not turning
[the vibrator] on to see if the battery still works, [the State] can do whatever
[it] wants with it.
State: Why can’t I?
Counsel for Defendant: Because it wasn’t – is not the functionality of that –
that is not in evidence, and there was no offer that it was still functioning
period. Now we need a battery expert if we’re. . . .
The Court: Overruled. Overruled.
Counsel for the State then argued to the jury that the vibrator was working, and
demonstrated that it could be turned on, to rebut the Defendant’s assertion that the vibrator
was an old item that belonged to his late wife. At the motion for new trial, the trial court
found that there was “no error [in the State’s argument] under the circumstances, no improper
argument made or impropriety found that would affect the jury verdict in this case.” The trial
court noted that the jury could have turned on the vibrator during deliberations, regardless
of the State’s demonstration.
In his closing argument, the Defendant questioned the age of the vibrator, and
contended that it belonged to his late wife, who died in 2007, and the State sought to rebut
the argument by demonstrating that the vibrator worked. We conclude that the Defendant
raised the issue during his argument, and the State responded accordingly, addressing the
subject matter raised by the Defendant. On that basis, the trial court ruled that the State’s
argument was not improper. We conclude that the trial court did not abuse its discretion.
Turning next to the Defendant’s contention that the State’s comment about Dr.
27
Kennon being a “hired gun” was improper, we similarly conclude that the trial court did not
abuse its discretion in refusing to grant the Defendant a new trial on this basis. The jury
heard Dr. Kennon’s testimony and was free to reach its own conclusions in regard to the
credibility of his testimony as an expert witness. The jury was instructed by the trial court
that closing arguments are not evidence. Generally, we presume that a jury has followed the
instructions of the trial court. See State v. Butler, 880 S.W.2d 395, 399 (Tenn. Crim. App.
1994). An instruction to this effect was sufficient to cure any alleged prejudice suffered by
the Defendant as a result of the State’s comment. State v. Broughton, No. E2007-02533-
CCA-R3-CD, 2009 WL 648933, at *14 (Tenn. Crim. App. March 13, 2009), perm. app.
denied (Tenn. Aug. 17, 2012) (citing McCracken, 2003 WL 1618082, at *8). We conclude
that the trial court did not abuse its discretion in this matter. The Defendant is not entitled
to relief.
E. Comment During Voir Dire
The Defendant contends that the State improperly commented to the prospective jury
pool that the Defendant’s counsel had authored the jury questionnaire; this, the Defendant
argues, prejudiced the Defendant because the comment “disparage[d]” the defense attorney
and prevented jurors from being able to fairly and impartially determine the outcome of the
trial. The State responds that the Defendant made no objection during voir dire and thus
should not be afforded appellate review, and, in any event, the State’s remark was not
disparaging. We agree with the State.
The Defendant complains of the following comment made by the State during voir
dire:
Okay. Good. Any of y’all know any reason why you could not be fair and
impartial?
Okay. And I appreciate you filling out Mr. Byrd’s questionnaire. I have gone
again through it and it is helpful. But this is my opportunity where I get to ask
you a few questions.
The Defendant contends that the remark that the jury questionnaire had been authored by
defense counsel was “disparaging,” and “rebuke[d]” defense counsel, which “prevented the
jurors from being able to fairly and impartially determine the defendant’s guilt or innocence.”
We first note that, as the State points out in its brief, the Defendant neither objected
during voir dire after the comment was made, nor did he raise an objection outside the
presence of the jury. Thus, the Defendant’s failure to object waives this issue for appellate
review. See Tenn. R. App. P. 36(a).
28
Even so, this Court has stated that an improper argument, or comment in this case,
does not alone merit a new trial. State v. Hill, 333 S.W.3d 106, 130 (Tenn. Crim. App. 2010)
(citing Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)). When argument is found
to be improper, the established test for determining where there is reversible error is “whether
the conduct was so improper or the argument so inflammatory that it affected the verdict to
the [complaining party’s] detriment.” State v. Williams, No. M2005-00836-CCA-R3-CD,
2006 WL 3431920, at *21 (Tenn. Crim. App., at Nashville, Nov. 29, 2006), no perm. app.
filed (citing State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003)). We conclude that the
comment as to the author of the jury questionnaire was not “so improper” or “so
inflammatory” such that it “affected the [jury’s] verdict” in this case. In our view, the
comment had no direct result on the outcome of the trial, and the Defendant has not shown
that the State’s comment was made with the “intent to provoke bias among the jurors.” State
v. Robinson, 146 S.W.3d 469, 520 (Tenn. 2004). Furthermore, the jury acquitted the
Defendant of multiple charges, indicating that “the jury carefully considered the evidence and
convicted the [Defendant] based upon the State’s case, not upon the prosecutor’s statements
during voir dire.” State v. Swader, No. M2005-00185-CCA-R3-CD, 2006 WL 287384, at
*6-7 (Tenn. Crim. App., at Nashville, Feb. 6, 2006), perm. app. denied (Tenn. June 26,
2006). Therefore, the Defendant is not entitled to relief as to this issue.
F. Jury Instructions
The Defendant contends that the trial court erred in giving its instructions to the jury.
The State responds that the trial court provided the jury with proper instructions and did not
mislead the jury as to the applicable law. A trial court has the duty, in criminal cases, to fully
instruct the jury on the general principles of law relevant to the issues raised by the evidence.
See State v. Burns, 6 S.W.3d 453, 464 (Tenn. 1999); State v. Harbison, 704 S.W.2d 314, 319
(Tenn. 1986); State v. Elder, 982 S.W.2d 871, 876 (Tenn. Crim. App. 1998). “Nothing short
of a ‘clear and distinct exposition of the law’ satisfies a defendant’s constitutional right to
trial by jury.” State v. Phipps, 883 S.W.2d 138, 150 (Tenn. Crim. App. 1994) (quoting State
v. McAfee, 737 S.W.2d 304, 308 (Tenn. Crim. App. 1987) (quoting Strady v. State, 45 Tenn.
300, 307 (1868)). In other words, the court must instruct the jury on those principles closely
and openly connected with the facts before the court, which are necessary for the jury’s
understanding of the case. Elder, 982 S.W.2d at 876. Because questions of the propriety of
jury instructions are mixed questions of law and fact, our standard of review here is de novo,
with no presumption of correctness. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001); State
v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).
When reviewing jury instructions on appeal to determine whether they are erroneous,
this Court should “review the charge in its entirety and read it as a whole.” State v. Hodges,
944 S.W.2d 346, 352 (Tenn. 1997) (citing State v. Stephenson, 878 S.W.2d 530, 555 (Tenn.
1994)). The Tennessee Supreme Court, relying on the words of the United States Supreme
29
Court, has noted that:
[J]urors do not sit in solitary isolation booths parsing instructions for subtle
shades of meaning in the same way that lawyers might. Differences among
them in interpretation of instructions may be thrashed out in the deliberative
process, with commonsense understanding of the instructions in the light of all
that has taken place at the trial likely to prevail over technical hairsplitting.
Id. (quoting Boyde v. California, 494 U.S. 370, 380-81 (1990)). A jury instruction is
considered “prejudicially erroneous,” only “if it fails to fairly submit the legal issues or if it
misleads the jury as to the applicable law.” Id. (citing State v. Forbes, 918 S.W.2d 431, 447
(Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d 531, 544 (Tenn. 1977)). Even if a
trial court errs when instructing the jury, such instructional error may be found harmless.
State v. Williams, 977 S.W.2d 101, 104-05 (Tenn. 1998).
1. Inclusion of “Recklessly” Language in Jury Charge
First, the Defendant contends the trial court erroneously instructed the jury that a
finding of “recklessness” as to the Defendant’s actions would suffice to establish his guilt
for both rape of a child and aggravated sexual battery. We consider this complaint as to each
offense in turn.
a. Rape of a Child
The Defendant contends that the trial court erroneously instructed the jury that a
finding of recklessness as to the element of “sexual penetration” would suffice to establish
the Defendant’s guilt of rape of a child. The Defendant argues the instruction was in error
because recklessness only applies to the element of the age of the victim, and is not related
to the Defendant’s actions, which must be committed either knowingly or intentionally. The
State responds that the instruction was not in error because rape of a child has the culpable
mental state of intentionally, knowingly, or recklessly. The State further notes that its theory
at trial was one of intentional penetration, not reckless penetration, and, thus, assuming error,
the instruction did not affect the outcome of the case. We agree with the State.
Tennessee Code Annotated section 39-13-522 defines the offense of rape of a child
as “the unlawful sexual penetration of a victim by the defendant or the defendant by a victim,
if the victim is more than (3) years of age but less than thirteen (13) years of age.” T.C.A.
§ 39-13-522(a) (2010). Because the statutory definition of rape of a child does not plainly
dispense with a mental element, “intentional,” “knowing,” or “reckless” conduct suffices to
establish the culpable mental state. T.C.A. § 39-11-301(c) (2003); see State v. Chester
Wayne Walters, No. M2003-03019-CCA-R3-CD, 2004 WL 2726034 (Tenn. Crim. App. at
30
Nashville, Nov. 30, 2004) (holding that, when considering the crime of rape of a child, a jury
can find the defendant guilty by determining the defendant acted intentionally, knowingly,
or recklessly when he unlawfully sexually penetrated the victim and with respect to the
element that the victim is age thirteen or younger), perm. app. denied (Tenn. Mar. 21, 2005);
see also State v. Thomas D. Stricklin, No. M2005-02911-CCA-R3-CD, 2007 WL 1028535,
at * 15-18 (Tenn.Crim.App., at Nashville, Apr. 5, 2007), perm. app. denied (Tenn. Aug. 20,
2007). Moreover, the Committee on Pattern Jury Instructions “is of the opinion that the
definitions of ‘intentionally,’ ‘knowingly,’ and ‘recklessly’ should all be charged for [the]
offense [of rape of a child].” Comm. Pattern Jury Instructions Comts. to 10.12. Thus, each
element of rape of a child may be met by proving the defendant acted intentionally,
knowingly, or recklessly.
In Tennessee, there are four culpable mental states: intentionally, knowingly,
recklessly, and criminally negligent. See T.C.A. § 39-11-302 (2006). If the statute defining
the offense does not plainly dispense with a mental element, then “intent, knowledge, or
recklessness suffices” to establish the culpable mental state. T.C.A. § 39-11-301(c); State
v. Page, 81 S.W.3d 781, 786 (Tenn. Crim. App. 2002); State v. Chester Wayne Walters, No.
M2003-03019-CCA-R3-CD, 2004 WL 2726034, at *12 (Tenn. Crim. App., at Nashville,
Nov. 30, 2004), perm. app. denied (Tenn. Mar. 21, 2005). If the elements of an offense have
distinctly varying mens rea, then the trial court must clearly instruct the jury about the mental
state for each element. State v. Howard, 926 S.W2d 579, 587 (Tenn. Crim. App. 1996),
overruled on other grounds in State v. Williams, 977 S.W.2d 101 (Tenn. 1998). “Each of
these mental states is defined with reference to two or three of the following possible conduct
elements: (1) nature of defendant’s conduct, (2) circumstances surrounding the defendant’s
conduct, and (3) result of the defendant’s conduct.” Page, 81 S.W.3d at 787 (citing T.C.A.
§ 39-11-302). “‘Intentional’ refers to a person who acts intentionally with respect to the
nature of the conduct or to a result of the conduct when it is the person’s conscious objective
or desire to engage in the conduct or cause the result.” T.C.A. §39-11-302(a) (2006)
(emphasis added). “‘Knowing’ refers to a person who acts knowingly with respect to the
conduct or to circumstances surrounding the conduct when the person is aware of the nature
of the conduct or that the circumstances exist.” T.C.A. § 39-11-302(b) (2006) (emphasis
added). A person can also act knowingly “with respect to a result of the person’s conduct
when the person is aware that the conduct is reasonably certain to cause the result.” T.C.A.
§39-11-302(b) (emphasis added). “‘Reckless’ refers to a person who acts recklessly with
respect to circumstances surrounding the conduct or the result of the conduct when the
person is aware of but consciously disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur.” T.C.A. §39-11-302(c) (2006) (emphasis added).
In this case, the record reflects that the trial court instructed the jury as follows with
respect to the offense of rape of a child:
31
For you to find the [D]efendant guilty of rape of a child, the State must have
proven beyond a reasonable doubt the existence of the following essential
elements: that the [D]efendant had unlawful sexual penetration of the alleged
victim; and that the alleged victim was more than three (3) years of age but
less than thirteen (13) years of age; and that the [D]efendant acted either
intentionally, knowingly, or recklessly.
We conclude that the trial court’s instruction on the offense of rape of a child fairly submitted
the legal issues to the jury and its inclusion of recklessness as a mens rea sufficient to commit
child rape did not mislead the jury. See Hodges, 944 S.W.2d at 352. As previously stated,
recklessness is acceptable as a mental state for rape of a child, and the trial court instructed
the jury accordingly. The Defendant is not entitled to relief on this issue.
b. Aggravated Sexual Battery
The Defendant contends that the trial court also erred by instructing the jury that the
State must prove that the Defendant “acted either intentionally, knowingly or recklessly” in
committing the conduct element of aggravated sexual battery. The State responds that,
because the trial court clearly explained the distinct mens rea requirements for the distinct
elements of aggravated sexual battery, the trial court’s jury instruction was not in error.
Tennessee Code Annotated section 39-13-504(a) defines aggravated sexual battery
as “unlawful sexual contact with a victim by the defendant” where the victim is less than
thirteen years of age. T.C.A. § 39-13-504(a)(4) (2010). The various elements of aggravated
sexual battery contain distinct culpable mental states. “Sexual contact” must be
accomplished “intentionally” with “the purpose of sexual arousal or gratification.” T.C.A.
§ 39-13-501(6) (2003). Because the statute is silent as to the culpable mental state as to the
victim’s age, a showing of recklessness suffices to establish a defendant’s culpability as to
the victim’s age. T.C.A. § 39-11-301(c); State v. Howard, 926 S.W.2d 579, 587 (Tenn.
Crim. App. 1996), overruled on other grounds in State v. Williams, 977 S.W.2d 101 (Tenn.
1998). Where the mens rea requirements for an offense’s elements vary, a trial court has a
duty to set forth the mental state for each element clearly so the jury can determine whether
the State has met its burden of proof. Id.
In this case, the record reflects that the trial court instructed the jury with respect to
the offense of aggravated sexual battery as follows:
For you to find the [D]efendant guilty of aggravated sexual battery, the
State must have proven beyond a reasonable doubt the existence of the
following essential elements: One, that he had unlawful sexual contact with the
alleged victim, in which the [D]efendant intentionally touched her intimate
32
parts or the clothing covering the immediate area of her intimate parts; and that
two, [the victim] was less than thirteen years of age; and three, that he acted
either intentionally, knowingly or recklessly.
We cannot agree with the Defendant that the trial court’s instructions misled the jury as to
the culpable mental states required for the offense of aggravated sexual battery. This Court
has previously upheld nearly identical instructions issued for the offense of aggravated sexual
battery. See Walters, 2004 WL 2726034, at *13-14. In this case, as in Walters, the trial court
clearly explained that the element of “sexual contact” must have been committed
intentionally, with the specific purpose of deriving sexual arousal or gratification. As such,
the trial court satisfied its duty of clearly setting forth the mental state for each element of the
offense of aggravated sexual battery. See Howard, 926 S.W.2d at 587. Thus, the trial court
did not mislead the jury when it included in the jury instruction the mens rea of
“recklessness,” which was the necessary culpable mental state for the age of the victim. See
Walters, 2004 WL 2726034 at *14. The Defendant is not entitled to relief on this issue.
c. Attempted Aggravated Sexual Battery
The Defendant contends that the trial court also erred by instructing the jury that the
State must prove that the Defendant “acted either intentionally, knowingly or recklessly” in
committing the conduct element of attempted aggravated sexual battery. The State responds
that, because the trial court clearly explained the distinct mens rea requirements for the
distinct elements of aggravated sexual battery, the trial court’s jury instruction was not in
error.
As we have stated, aggravated sexual battery is the “unlawful sexual contact with a
victim by the defendant” when the victim “is less than thirteen (13) years of age.” T.C.A.
§ 39–13–504(a)(4) (2010). Attempted aggravated sexual battery requires proof that the
defendant acted with the intent to complete a course of action that would constitute
aggravated sexual battery and that his conduct constituted a substantial step toward the
commission of the offense. See T.C.A. § 39-12-101(a)(3) (2010). The defendant’s conduct
does not constitute a “substantial step . . . unless [his] entire course of action is corroborative
of the intent to commit the offense.” Id. § 39-12-101(b).
In this case, the record reflects that the trial court instructed the jury with respect to
the offense of aggravated sexual battery as follows:
For you to find [the Defendant] guilty of criminal attempt, the [S]tate must
have proven beyond a reasonable doubt the existence of the following essential
elements: that the [D]efendant intended to commit the specific offense of
aggravated sexual battery; and that the [D]efendant did some act or caused
33
something to happen that would have constituted aggravated sexual battery if
the [D]efendant’s beliefs at the time he acted had in fact been true; or that the
[D]efendant did some act intending to cause an essential element of aggravated
sexual battery to occur, and at the time believed the act would cause the
element to occur without further action on the [D]efendant’s part; or that the
[D]efendant did some act intending to complete a course of action or cause a
result that would constitute aggravated sexual battery under the circumstances,
as the [D]efendant believed them to be at the time, and his actions constituted
a substantial step toward the commission of aggravated sexual battery. The
[D]efendant’s actions to do not constitute a substantial step unless the
[D]efendant’s entire course of action clearly shows his intent to commit
aggravated sexual battery. (Emphasis in original).
The jury charge used by the trial court was identical to the pattern jury charge on criminal
attempt. T.P.I.-Crim. 4.01. In State v. Eldridge, this Court approved the language in the
pattern jury instruction, as the instruction “expressly includes the defendant’s intent to
commit the specific offense as an essential element.” 951 S.W.2d at 779. We conclude that
this was the proper instruction for the trial court to give to the jury on the lesser-included
offense of attempted aggravated sexual battery. The Defendant is not entitled to relief.
2. Disjunctive Use of “Or” in the Jury Charge on Mens Rea
Second, the Defendant contends the trial court erroneously used the disjunctive “or”
in its charge to the jury, which permitted the jury to reach a non-unanimous verdict, violating
the Defendant’s constitutional right to a unanimous verdict. He argues that the trial court’s
instruction stating that the Defendant could be convicted if the evidence showed that he acted
“intentionally, knowingly, or recklessly” erroneously charged the jury in the disjunctive. The
State responds that charging mens rea in the disjunctive does not violate a defendant’s right
to a unanimous verdict.
Under Tennessee law, a defendant has a constitutional right to a unanimous verdict
before a conviction for a criminal offense may be imposed. State v. Shelton, 851 S.W.2d
134, 137 (Tenn. 1993); State v. Brown, 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991).
Protection of this right often requires “special precautions [by the court] to ensure that the
jury deliberates over the particular charged offense, instead of creating a ‘patchwork verdict’
based on different offenses in evidence.” Id. at 134. In State v. Hood, the Court of Appeals
addressed unanimous jury verdicts in the context of multiple culpable mental states. 221
S.W.3d 531, 547 (Tenn. Ct. App. 2006). We concluded that the use of the word “or” when
listing the alternative culpable mental states for the offense of aggravated rape did not violate
constitutional protections against non-unanimous jury verdicts. Id. at 547-48. Moreover, this
Court has stated, “Generally, alternative theories, mental states, modes of committing the
34
crime, or means by which the crime was committed may be submitted to the jury without the
necessity of precautions to assure jury unanimity.” State v. James Clayton Young, Jr., No.
01C01-9605-CC-00208, 1998 WL 258466, at *5 n.4 (Tenn. Crim. App., at Nashville, May
22, 1998), no Tenn. R. App. P. 11 application filed.
In this case, as mentioned above, when the trial court defined the elements of
aggravated sexual battery and rape of a child to the jury, it instructed the jury that the
Defendant must have acted “either intentionally, knowingly or recklessly.” We cannot agree
with the Defendant that the disputed jury instruction violated his right to a unanimous
verdict. The use of language allowing for differing conclusions among jurors as to a
defendant’s exact mens rea does not violate a defendant’s right to a unanimous jury verdict.
See Hood, at 547-48; Young, 1998 WL 258466, at *5 n. 4. As long as the jury unanimously
determines that the defendant possessed a mens rea required for the alleged crime, the
defendant’s right to a unanimous verdict is not violated. As such, we conclude that the jury
instructions in this case were proper. The Defendant is not entitled to relief on this issue.
3. Instruction related to the Acquitted Offenses
Third, the Defendant contends that the trial court erred by failing to instruct the jury
about the legal effect of the counts in the indictment for which the Defendant was acquitted.
The State responds that the Defendant neither raised an objection nor proposed a special jury
instruction at trial, and the Defendant did not raise this issue in his motion for new trial.
Thus, the State contends that the Defendant has waived appellate review of this issue. The
State notes that, even so, our Supreme Court recently decided that a trial court is not required
to instruct the jury on the counts in the indictment for which the accused is acquitted. We
agree with the State.
Our Supreme Court recently decided a case of first impression holding that, when a
defendant is acquitted of select charges in the indictment:
[I]t is sufficient for the trial court to inform the jury that the dismissed charges
have been removed from the indictment, that no instruction concerning the
dismissed charges will be provided, and that the jury should not speculate as
to the removal of the dismissed charges or the absence of instructions on the
dismissed charges. The trial court, if requested to do so, should also provide
an appropriate limiting instruction as to the purpose of the evidence related to
the dismissed charges.
State v. Little, 402 S.W.3d 202, 215 (Tenn. 2013). Here, the trial court instructed the jury
that the Motion for Judgment of Acquittal would be granted regarding multiple counts of the
indictment. The trial court stated that neither the indictments nor the verdict forms would
35
be renumbered, and stated “[t]hose counts are coming out[.]” This was sufficient instruction
to the jury. See Little, 402 S.W.3d at 215. The Defendant is not entitled to relief on this
issue.
G. Consecutive Sentencing
The Defendant contends that the trial court erred when it imposed consecutive
sentences pursuant to Tennessee Code Annotated section 40-35-115(b)(2) and (5). The State
responds that the record supports the trial court’s imposition of consecutive sentences. We
agree with the State.
Tennessee Code Annotated section 40-35-115(b) provides that a trial court may order
sentences to run consecutively if it finds any one of the statutory criteria by a preponderance
of the evidence. As it relates to this case, the trial court found the following criteria
applicable:
...
(2) The defendant is an offender whose record of criminal activity is extensive;
...
(5) The defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances
arising from the relationship between the defendant and victim or victims, the
time span of defendant’s undetected sexual activity, the nature and scope of the
sexual acts and the extent of the residual, physical and mental damage to the
victim or victims;
....
T.C.A. § 40-35-115(2) and (5). The criteria are stated in the alternative; therefore, only one
need exist to support the imposition of consecutive sentencing. See id.; State v. Denise
Dianne Brannigan, No. E2011-00098-CCA-R3-CD, 2012 WL 2131111, at *19 (Tenn. Crim.
App., at Knoxville, June 13, 2012), no Tenn. R. App. P. 11 application filed. The imposition
of consecutive sentencing, however, is subject to the general sentencing principles that the
overall sentence imposed “should be no greater than that deserved for the offense
committed” and that it “should be the least severe measure necessary to achieve the purposes
for which the sentence is imposed [.]” T.C.A. § 40-35-103(2), (4). We review a trial court’s
decision to impose consecutive sentences for an abuse of discretion with a presumption of
reasonableness. State v. James Allen Pollard, __ S.W.3d __, No. M2011-0032-SC-R11-CD
36
(Tenn. Dec. 20, 2013).
At the sentencing hearing, the trial court noted that it had considered the evidence
presented at trial and the sentencing hearing, as well as the presentence report, the principles
of sentencing, arguments of counsel, and the mitigating and enhancement factors. The trial
court applied the mitigating factor that there was no serious bodily injury to the victim,
pursuant to Tennessee Code Annotated section 40-35-113(1). The trial court found, as an
enhancement factor pursuant to Tennessee Code Annotated section 40-35-114(14), that the
Defendant abused a position of private trust. On the issue of consecutive sentenceing, the
trial court stated that it had “considered very carefully the arguments of counsel, the evidence
in this case, [and] the entire record” in making its decision. The trial court found that it had
been proven by a preponderance of the evidence that the Defendant had an “extensive”
record of criminal activity. The trial court further stated that it found by a preponderance of
the evidence that the Defendant had been “convicted of two or more statutory offenses
involving sexual abuse of a minor with consideration of the aggravating circumstance arising
from the relationship between the Defendant and the victim[.]” The trial court also
considered the time period of the undetected sexual activity, the nature and scope of the
sexual acts, and the extent of the residual mental damage to the victim.
Based on those considerations, the trial court imposed concurrent sentences of twenty-
five years for each of the rape of a child convictions; concurrent five year sentences for each
of the attempted aggravated sexual battery convictions; and a ten year sentence for the
aggravated sexual battery conviction. The trial court ordered partial consecutive sentencing,
imposing a total effective sentence of thirty-five years to be served at 100% as mandated by
law.
The trial court properly concluded based on the numerous convictions resulting from
this indictment that the Defendant’s record of criminal activity was extensive. This position
is supported by State v. Jones, W2010-01080-CCA-R3-CD, 2011 WL 2162986 (Tenn. Crim.
App. May 26, 2011), perm. app. denied (Tenn. Sept. 21, 2011) (holding that current offenses
may be used in determining criminal history for sentencing purposes).
We agree with the trial court that the Defendant was convicted of two or more
statutory offenses involving sexual abuse of a minor and that several aggravating
circumstances listed in section 40-35-115(b) were present. The sexual abuse by the
Defendant of the victim went on for a period of approximately two years, during which time
the Defendant acted in the role of a caretaker for the victim and was considered by her to be
a member of her family. A social worker who treated the victim testified that the victim
suffered residual effects from the abuse, including fear, distrust, and feeling unsafe in her
daily environment. The evidence did not preponderate against the trial court’s findings that
factor (5) was applicable here. Thus, we conclude that the trial court did not abuse its
37
discretion in imposing consecutive sentencing. The Defendant is not entitled to relief on this
issue.
H. Mental Health Records Placed Under Seal
Lastly, the Defendant contends that the trial court erred when it reviewed T.B.’s
mental health records in camera and placed those records under seal. The Defendant argues
that in order for him to exercise his constitutional right to present a defense, the records must
have been made available to him and to his expert witnesses. He asserts that denying him
access to these records compromised his due process and Sixth Amendment rights. The State
counters that the law of this state is that “in camera review is the appropriate avenue for
review of otherwise confidential medical and mental health records.” The State asserts that
this Court must review the records and determine whether the judgment of the trial court was
correct.
In ruling on the disclosure of the psychiatric records of a prosecuting witness, our
Supreme Court addressed the issue of a defendant’s right to cross-examine witnesses, stating
the following:
The Sixth Amendment to the U.S. Constitution, which is applicable to
the States through the Fourteenth Amendment, see Pointer v. Texas, 380 U.S.
400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965), provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” The corresponding provision of the Tennessee
Constitution provides “[t]hat in all criminal prosecutions, the accused hath the
right . . . to meet the witnesses face to face.” Tenn. Const. art. I, § 9.
Although the language is not identical, this Court has previously adopted the
standards of the U.S. Supreme Court under the Sixth Amendment in
determining whether there has been a violation of the confrontation clause of
Article I, § 9. State v. Armes, 607 S.W.2d 234, 237 (Tenn. 1980).
The confrontation clause of the Sixth Amendment provides two types
of protection for criminal defendants: the right to physically face those who
testify against him, and the right to cross-examine witnesses. Pennsylvania v.
Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989, 998, 94 L. Ed. 2d 40, 53 (1987). The
right to cross-examine witnesses, however, does not include the power to
require the pretrial disclosure of any and all information that might be useful
in contradicting unfavorable testimony. Id., 480 U.S. at 53, 107 S. Ct. at 999,
94 L.Ed.2d at 54. Therefore, the right to confront witnesses is satisfied if
defense counsel receives wide latitude at trial to cross-examine, because the
confrontation clause only guarantees “an opportunity for effective
38
cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” Id. (quoting Delaware v.
Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15, 19 (1985)).
State v. Middlebrooks, 840 S.W.2d 317, 332-33 (Tenn. 1992). The Court in Middlebrooks
held that to ensure a defendant’s right to cross-examine is not denied, trial courts should
review psychiatric records of witnesses in camera to determine if the records are relevant in
determining the veracity of a witness. Id. at 333. In Middlebrooks, the trial court’s failure
to review the records as required was held to be harmless error because a review of the sealed
records revealed that they contained very little information probative on the issue of the
witness’s credibility. Id.
In the present case, the trial court properly reviewed the psychological records of T.B.
and determined that the records need not be disclosed to the defense, as the information
contained therein was already before the jury through more than one witnesses’ testimony,
primarily T.B.’s testimony. Having reviewed the psychological records, this Court agrees
that the records need not be disclosed. As we have previously stated, T.B. testified at length
about her prior accusation of rape, and defense counsel had ample opportunity to cross-
examine her about her statements. T.B.’s school principal also testified about T.B.’s prior
allegation and his conversations with her. The records contain nothing exculpatory beyond
that which was testified to, that T.B. made a prior accusation of rape in the past. Our
standard of review in this evidentiary issue is abuse of discretion. See Carroll, 36 S.W.3d
at 867. As such, we conclude that the trial court did not abuse its discretion when it declined
to disclose the records to the Defendant. The Defendant is not entitled to relief.
III. Conclusion
After a thorough review of the record and applicable law, we conclude that the
evidence supports the Defendant’s convictions, that the trial court did not err in the
admission and exclusion of evidence, closing arguments were not improper, and that the trial
court properly instructed the jury. Accordingly, we affirm the trial court’s judgments.
___________________________________
ROBERT W. WEDEMEYER, JUDGE
39