State of Tennessee v. Adrian Leroy Scott ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
September 13, 2011 Session
STATE OF TENNESSEE v. ADRIAN LEROY SCOTT
Appeal from the Criminal Court for Davidson County
No. 2006-B-1108 Monte Watkins, Judge
No. M2010-00625-CCA-R3-CD - Filed January 17, 2012
Following an indictment charging three counts of sexual battery by an authority figure and
two counts of rape, a Davidson County Criminal Court jury convicted the defendant, Adrian
Leroy Scott, of three counts of assault, see T.C.A. § 39-13-101(a)(3) (2003); one count of
attempted sexual battery by an authority figure, see id. §§ 39-13-527(a)(1)(B), 39-12-101;
and one count of attempted sexual battery, see id. §§ 39-13-505(a)(1), 39-12-101. The trial
court imposed an effective sentence of three years’ split confinement consisting of six
months’ incarceration in the workhouse followed by two and one-half years on probation.
In addition to contesting the sufficiency of the evidence to support his convictions, the
defendant argues on appeal that the trial court erred by denying (1) his motion to suppress
his statement to the police, (2) his motion for a mistrial based upon the undisclosed testimony
of a rebuttal witness, (3) his motion to dismiss counts three and five based upon a fatal
variance between the indictment allegations and the proof presented at trial, and (4) his
request to present evidence at trial concerning the sexual offender registry. The defendant
also contends that the trial court erred by imposing consecutive sentences and denying him
full probation. The State concedes that the trial court erroneously imposed consecutive
sentences and also notes that the trial court failed to merge two sets of alternative counts.
On remand, the trial court shall enter corrected judgments reflecting merger and concurrent
sentences. Discerning no other error, we affirm the judgments of the trial court as modified.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed as Modified
J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and N ORMA M CG EE O GLE, JJ., joined.
Jeffery L. Frensley, Nashville, Tennessee, for the appellant, Adrian Leroy Scott.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and J.W. Hupp, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
In October 2005, the then-14-year-old victim, M.P.,1 told her mother that the
defendant, the victim’s stepfather, had touched her inappropriately on several occasions.
Their family, which included the victim’s two younger brothers, got along “in the
beginning,” and the victim described her relationship with the defendant as a “typical father-
daughter relationship.” In the first home the family shared, nothing unusual occurred
between the defendant and the victim except some wrestling during which the defendant
touched “[the victim’s] breasts or . . . butt.” At the time, however, the victim believed the
touching was accidental. Although the reported incidents had occurred over an
approximately two-year time period after the victim turned 13, the victim was nervous to tell
her mother and only did so at the urging of a close friend.
Because the family was in the process of building a home, they spent nights at
either the defendant’s mother’s home or the victim’s maternal grandmother’s home
intermittently for approximately six months. The victim recalled one specific incident that
occurred after the victim had attended her first football game while she, the defendant, and
her youngest brother stayed the night at the defendant’s mother’s home.2 Her brother wanted
to sleep in a trundle bed with the victim, but the defendant instructed his son to sleep in the
nearby daybed, while the defendant and victim shared the trundle bed. The victim awoke that
night to feel the defendant “[r]eaching his hands up [her] shorts.” The victim, who was
menstruating at the time, felt the defendant’s finger touch her skin “around the area of her
tampon string . . . . going into the inside” of her labia. The victim began “coughing and
moving around.” The defendant then “stopped” and “[s]lowly tried to remove his hand”
from the victim’s shorts. The victim got up to use the bathroom and then returned to the bed,
where she tried to stay awake for the rest of the night. She believed the defendant was
“[p]laying asleep” throughout the incident. She did not immediately report the incident to
her mother; she explained,“I wasn’t sure [that it happened] because you see this kind of stuff
happening on movies, but you would never think that it would happen to you.”
The victim was not allowed to use the computer without the defendant’s
permission, and the defendant required the victim to sit on his lap whenever she used his
computer. On several instances, the defendant “tried to touch [the victim] . . . [i]n between
1
It is the practice of this court to refer to child victims of sexual abuse by their initials.
2
The victim’s younger brother was the defendant’s biological son. He was four or five years old
at the time.
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[her] legs.” Once, when a friend of the victim was visiting, the defendant reached between
the victim’s legs into her shorts and attempted to move the victim’s underwear over to gain
skin-to-skin contact with the victim’s genital area. The victim jumped up “instantly.” She
ultimately stopped using the defendant’s computer. On cross-examination, when asked if the
defendant could have been scratching, the victim testified, “No. I think he knew exactly
what he was doing.”
In their new home, the victim’s bedroom was located in the basement near the
defendant’s home office. She also had an adjacent bathroom. She recalled that she “would
get out of [her] shower and [the defendant] would actually be in [her] closet waiting for [her]
to undress.” Once, the defendant “actually came out [of the closet] and [tried] to start
wrestling the towel off of [the victim].” The victim screamed for her brothers, who quickly
ran downstairs, and the defendant said, “‘You’re no fun. Why [are] you being like that? It’s
nothing I [have] never seen before.” To her knowledge, the defendant had never seen the
victim naked. From that time on, the victim would check her closet and lock her doors
before dressing or undressing.
The defendant often tucked the victim in at night because she was afraid of the
dark. Later, he began coming into her room during the middle of the night. Once, the victim
awoke to find the defendant lying on top of her with a comforter between them. She could
not recall whether he touched her. The victim moved and the defendant left and returned to
his bedroom upstairs. Although the defendant did not speak, he was not dazed or confused
when leaving her room. The victim denied that the defendant often fell asleep in her room
watching television. The victim believed that the defendant “was very awake every time he
tried to touch [her].”
After learning of the victim’s report, the victim’s mother confronted the
defendant. The defendant apologized and told the victim’s mother that he wanted to get help.
The victim’s mother asked the defendant to leave their home, and the couple eventually
divorced. The victim was hesitant to talk to authorities because she was concerned about the
incidents being reported on the news. When a Department of Children’s Services (DCS)
investigator contacted her, the victim knew that “[s]omeone had apparently told someone.”
The victim’s mother, Konya Hollands, married the defendant in 1998, and the
couple divorced in 2008. Ms. Hollands brought two children to the marriage, the victim and
a son. Ms. Hollands and the defendant’s son was born in 2000. Ms. Hollands described her
initial relationship with the defendant as “heaven-sent.” She expressed no concerns at first
with the defendant’s relationship with the victim. While living in their first home, however,
Ms. Hollands became concerned over the defendant’s wrestling and requiring the victim to
sit on his lap at the computer because she “felt like little girls shouldn’t sit on men’s laps
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[and] they shouldn’t wrestle.” Each time Ms. Hollands voiced her concerns to the defendant,
he acted offended by her “insinuation.”
The family lived with relatives for some time in 2004 while building their new
home. During the same time period, Ms. Hollands graduated from nursing school and began
working the 7:00 a.m. to 7:00 p.m. shift three days a week. The defendant, a firefighter with
the Nashville Fire Department, worked 24 hour shifts and was off work for 48 hours on a
rotating basis. The couple never left the children at home alone. As the victim approached
her “teenage years,” the victim and the defendant experienced “friction.” Throughout 2004
and 2005, the “friction” between the defendant and the victim increased. When the family
held “family meetings,” the defendant and the victim engaged in “like a push and pull, a tug
– a tug of war, almost like.” As the friction between the victim and the defendant increased,
the defendant gave the victim an expensive cellular telephone, one that Ms. Hollands said
that she would not have purchased for herself. Retrospectively, Ms. Hollands believed that
the expensive cellular telephone “was part of [the defendant’s] grooming [the victim].”
In October 2005, while the defendant was away from home, the victim
approached Ms. Hollands and was “kind of fidgety and nervous acting . . . like she wanted
to say something but she didn’t want to say something.” When the victim disclosed to her
mother what had happened with the defendant, Ms. Hollands was “shocked.” She said the
report “was like a brick hitting [her] in the back of the head.” When Ms. Hollands
confronted the defendant outside the victim’s presence, he did not admit explicitly to any
behavior, but he told Ms. Hollands that she “had to believe [her] daughter.” She asked the
defendant to leave the home, and he went to live with his mother across the street. Several
days later, during a meeting among the defendant, Ms. Hollands, and the victim, the
defendant apologized and told his wife and the victim “that he was sick [and] that he needed
help.”
The victim initially only reported the incident that had occurred at the
defendant’s mother’s home. After the defendant left the family home, the victim eventually
disclosed more inappropriate behavior by the defendant. Ms. Hollands reacted to the
information by suffering “a very deep depression.” She did not contact the police herself
because she was “in love . . . [and] blind.” She explained also that the victim asked her not
to do anything after the defendant promised it would not happen again. Ms. Hollands also
believed, based upon other conversations with the defendant, that “it was a fireman-
policeman type thing where they would take [the defendant] off, cool him down, and then
everything would be okay.” The defendant continued to promise Ms. Hollands that
“everything [would] be fine” and that he “would have his family back.” After Ms. Hollands
began counseling, she realized that she “needed to cut [her] ties” to the defendant. Ms.
Hollands filed for divorce and spoke to investigators in February 2006. The victim gave a
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statement to DCS investigators around that same time.
After the police investigation began but before Ms. Hollands filed for divorce,
the defendant told Ms. Hollands that parasomnia caused him to commit the acts and
recommended she look up the disorder on the internet. Ms. Hollands instead contacted the
District Attorney General’s victim-witness coordinator to inform her of the defendant’s
explanation. Ms. Hollands testified that she never saw any evidence of “odd sleep behavior”
in the defendant. She also thought the victim’s report of waking up to find the defendant on
top of her in her bed bore similarity to something the defendant would sometimes do to her.
Ms. Hollands said that the defendant would take the kids to school and return home where
she would be sleeping, having worked the night shift the previous night. The defendant
would “put baby oil on himself . . . and he’d slide in bed beside [her], and he would just kind
of grind on [her].” At the time, Ms. Hollands thought it was “like a game,” so she would
pretend to be asleep even if she was not. The defendant would ejaculate “in a rag.” Once,
she asked the defendant why he would “sneak” like that, and he told her that he did not want
to wake her. Ms. Hollands said that the defendant did not try to fondle her when this
behavior would occur and that she was certain he was always awake.
Forrest Garrett, a court officer with the Davidson County Circuit Court and also
a Wilson County Sheriff’s Deputy, knew the defendant as his “brother-in-law’s grandson.”
The defendant contacted Officer Garrett after the defendant’s confrontation with Ms.
Hollands concerning the victim’s allegations. The defendant asked Officer Garrett for advice
and help dealing with his “inappropriate touching” of the victim. During their discussion,
the defendant never mentioned being asleep when the touching occurred. Officer Garrett told
the defendant that he could put the defendant in touch with someone at the Metropolitan-
Nashville Police Department (Metro) who could “assist” the defendant. Ten minutes after
their conversation, the defendant telephoned Officer Garrett and told him “not to worry
about” what they had discussed because the defendant and his wife had decided to deal with
the problem within the family. Officer Garrett told the defendant that it was “too late”
because Officer Garrett had a duty to report the allegation. He also warned the defendant
that Ms. Hollands could “get in trouble” if she failed to report the allegation. Officer Garrett
telephoned Metro Detective Greg Robinson the next day.
Greg Robinson, an investigator with the Vanderbilt University Police
Department at the time of trial, investigated the incidents as an assistant detective with
Metro. Mr. Garrett contacted Detective Robinson with information concerning a sexual
abuse disclosure made to Mr. Garrett by the defendant. Detective Robinson arranged a
“controlled telephone call” between Mr. Garrett and the defendant during which the
defendant made admissions that substantiated Mr. Garrett’s report. The defendant then
agreed to meet with Detective Robinson and Detective Keven Cooley later that day at the fire
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station where the defendant worked.
At their meeting, both detectives informed the defendant that he was not under
arrest and was free to leave at any time. The detectives did not, however, inform the
defendant that the conversation was being recorded. The defendant agreed to an interview,
but he refused to sign a written statement. The defendant sat in the front seat of Detective
Cooley’s unmarked car, with Detective Cooley seated in the driver’s seat and Detective
Robinson seated in the backseat, while the three men discussed the victim’s allegations.
The defendant admitted details of the victim’s allegation that had occurred at
his mother’s house. Although the defendant did not indicate that he was taking sleep
medication, he did tell the detectives that he was asleep or “in a daze” when the incident
occurred. The defendant discussed five separate incidents of touching the victim, including
the single incident of digital penetration that occurred at his mother’s house. The defendant
told the detectives that he told his wife that he needed to turn himself in. The defendant
never attempted to stop the interview. Detective Robinson did not advise the defendant of
his Miranda rights because the interview occurred in a non-custodial setting.
Detective Keven Cooley participated in the interview of the defendant at the
fire station. The defendant admitted touching the victim inappropriately at the family’s first
home, his mother’s home, and the second home. The defendant openly admitted his
transgressions and apologized. He did, however, claim that all the incidents occurred when
he was asleep. Detective Cooley recalled that “[a]ll the fondling occurred at night, after [the
defendant] either tucked [the victim] in or fell asleep with her.” Although his discussions
with the defendant about the defendant’s wrestling with the victim did not seem sexual,
Detective Cooley also opined, “when you put the entire story together, I think you have
something else at that point.” The defendant did not report having any sleep issues, but he
told the detectives that he would sometimes yell or fondle his wife in his sleep. Detective
Cooley testified that he and Detective Robinson did not arrest the defendant after the
interview because Metro uses “the grand jury method” of arresting via an indictment or
information to shield the victim from testifying multiple times in court.
With this evidence, the State rested its case. At the close of the State’s proof,
the State elected the following facts in support of each count of the indictment:
Count One (charging sexual battery by an authority figure): the
victim awoke to find the defendant lying on top of her with a
comforter in between them and the defendant admitted touching
the victim inappropriately
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Count Two (charging sexual battery by an authority figure): at
the defendant’s mother’s home, the victim awoke to find the
defendant reaching inside her shorts with his finger touching her
labia
Count Three (charging sexual battery by an authority figure):
while sitting on the defendant’s lap at the computer, the
defendant touched the victim’s clothing in an effort to push her
underwear aside
Count Four (charging non-consensual rape): the incident at the
defendant’s mother’s home, as an alternative to count two
Count Five (charging forcible rape): the computer incident, as
an alternative to count three
The defendant then orally moved for judgments of acquittal on all five counts. The trial court
denied the defendant’s motion with respect to counts one through four. The court partially
granted the defendant’s motion with respect to count five and ruled that the evidence
established only an attempted sexual battery.
Doctor James Brevard Haynes testified for the defendant as an expert in sleep
medicine. Doctor Haynes treated the defendant, whom he diagnosed with parasomnia.
Doctor Haynes explained that parasomnia encompasses any “undesirable physical event, or
experience, that occurs during sleep.” He further explained that examples of parasomnia
include night terrors, sleepwalking, sleep-talking, and sleep-eating. Significant to the
defendant’s diagnosis, parasomnia may also include sexual activity that occurs during sleep,
ranging from masturbation to intercourse. Doctor Haynes stated that sexual parasomnia often
goes undiagnosed unless it involves an unwilling “recipient,” such as a minor or someone
other than a spouse. Most people who suffer from sexual parasomnia also have a childhood
history of sleepwalking. Sexual parasomnia is commonly diagnosed based upon anecdotal
histories taken by the patient or a spouse and does not always manifest during a clinical sleep
study because a spouse or partner would not be present. Doctor Haynes acknowledged that
sleep parasomnia is not an accepted psychological disorder in the Diagnostic Statistical
Manual IV; rather, he maintained that sleep parasomnia is a medical condition.
In July 2006, a sleep study conducted of the defendant revealed that the
defendant experienced several episodes of wakefulness, but he did not exhibit any sexual
behavior during the study. The defendant reported suffering night terrors and incidents of
sleepwalking as a child. The defendant told Doctor Haynes that he had fondled Ms. Hollands
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during his sleep when they were married. Likewise, the defendant’s current wife reported
that the defendant had fondled her in his sleep.3 Doctor Haynes determined that the
defendant had been “straightforward” with the investigation, that the alleged criminal acts
were “out of character” for the defendant, and that “there [was] no history of any vaginal
fondling of [the victim] during wakefulness.” Based upon these considerations, Doctor
Haynes opined that the defendant’s acts against the victim were unintentional and caused by
sexual parasomnia.
Doctor Haynes maintained that Ms. Hollands’ testimony at trial, despite her
testimony that the defendant was awake when he would “grind on” her, was consistent with
the history provided by the defendant. He also maintained that the victim’s testimony at trial
was consistent with the defendant’s report and that the victim may not have realized that the
defendant was asleep when the inappropriate behavior occurred. As to the victim’s
allegation concerning sitting at the computer, Doctor Haynes said that the allegation did not
change his diagnosis. He maintained that the defendant and the victim had “some boundary
issues,” as evidenced by the testimony concerning the defendant’s hiding in a closet or
grabbing the victim’s towel, but he believed that the computer incident was “almost
anatomically impossible” or that “a touch that started off as something innocent was
interpreted in a wrong way” by the victim. Doctor Haynes believed that the defendant only
admitted facts that were reported to him by the victim and Ms. Hollands and that any
additional facts revealed in the defendant’s statement to the police stemmed from the
detectives’ leading the defendant during the interview. Ultimately, Doctor Haynes admitted
on cross-examination that he disregarded facts not in agreement with the defendant’s self-
report because he “ha[d] to believe [the defendant’s] word” in order to maintain his
diagnosis.
David Warman, an assistant chief with the Nashville Fire Department, first met
the defendant in 1997 when the defendant was in training. Assistant Chief Warman stated
that the defendant made a “good impression” during training and developed into a “great”
fire fighter. He had no knowledge of any inappropriate behavior committed by the defendant
involving coworkers or the public. Assistant Chief Warman found the victim’s allegations
“hard to believe” and “inconsistent” with his knowledge of the defendant’s character.
Angel Scott married the defendant approximately one year before the June
2009 trial. She described their marriage as “loving” and the defendant as “a kind, caring
person.” Ms. Scott knew about the victim’s allegations before marrying the defendant, but
she testified that she did not believe the claims. Ms. Scott reported that the defendant often
3
At the June 2009 trial, the defendant and his current wife had been married approximately one
year. The report of his current wife was an addendum to Doctor Haynes’ July 2006 report.
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talked, twitched, rubbed, or grunted in his sleep. On several occasions, she awoke to
discover food wrappers or crumbs in their bed. Once, when Ms. Scott thought the defendant
was initiating sex during the night, she rolled over and realized that the defendant was asleep
and “completely unresponsive” to her. When she told the defendant about what had
happened the next morning, the defendant could not remember anything and became very
upset. Ms. Scott discussed these behaviors with the defendant, who relayed them to his
attorney and Doctor Haynes. Ms. Scott did not know that the defendant was being treated
by Doctor Haynes until one week before trial, which was also when she first spoke to Doctor
Haynes.
Alex Scott, the defendant’s brother and also a Nashville fire fighter, recalled
that the defendant, as a child, “would jump up and scream due to the ‘Thriller’ video of
Michael Jackson . . . [because] it triggered different emotions in [the defendant] at night.”
He also recalled the defendant’s seeing “angels and things of that sort.” As teenagers, Mr.
Scott would enter the defendant’s bedroom, ask to borrow clothes, and leave the defendant’s
room with approval to borrow clothing only to find the defendant angry with him later in the
day with no memory of permitting him to borrow the clothing. On one occasion, Mr. Scott
watched the defendant walk from his bedroom, “pass out” in the hallway, and awake
confused with no memory of leaving his bedroom. Mr. Scott also caught the defendant
urinating into a clothing hamper once. During all of these incidents, the defendant “wasn’t
aware of anything that was taking place.”
When the victim’s allegations came to light and the defendant first left home,
he lived with Mr. Scott for a brief period of time. Mr. Scott’s daughter was two-years-old
at the time, so the defendant was not able to stay there throughout the initial separation. Mr.
Scott recalled that Ms. Hollands initially wanted the family to stay together. After the
allegations appeared in the news, however, any chance of reconciliation disappeared. By
January 2006, Mr. Scott knew the couple would be divorced.
The defendant testified that his career as a fire fighter exposed him to many
traumatic situations. He claimed he had difficulty sleeping, especially when at the fire
station. He said that he suffered nightmares and talking in his sleep as a child, but doctors
told him that he “would grow out of it.” He found his sleep issues “shocking because it’s
like you’re not even in control.”
At the time of the allegations, the defendant claimed that he bore a lot of
responsibilities at home because Ms. Hollands was “one of those career-type women that
want[ed] to work all the time. And when they want to work all the time they don’t ever want
to be home.” When Ms. Hollands confronted him with the victim’s allegations, he was
“shocked [and] upset.” He described the allegations as “confusing” because he could not
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remember anything. The couple decided that it was “a good idea” for the defendant to leave
their home.
Although Ms. Hollands did not want the defendant to tell anyone about the
allegations, the defendant contacted Officer Garrett because he thought Officer Garrett would
know someone who could help. The defendant also expressed concern for the victim. The
defendant testified that, after disclosing the allegations, Officer Garrett assured the defendant
that no one would have to go to court and that the entire incident “wouldn’t be nothing.” The
next day, Officer Garrett contacted the defendant to arrange a meeting with Officer Garrett’s
“good friends.” The defendant claimed that Officer Garrett did not tell him that the “friends”
were actually Metro Detectives Robinson and Cooley.
The defendant spoke with Officer Garrett’s “friends” in the parking lot of the
fire station. When asked if the men identified themselves as police officers, the defendant
said, “They may have. I don’t know.” The defendant testified that he only told the men what
Ms. Hollands had told him happened. He denied any personal recollection of the incident
that the victim alleged to have occurred at his mother’s home. He, likewise, claimed that the
allegations concerning the computer and lying on top of the victim were new incidents never
before reported until the time of trial.
The defendant testified that his primary care physician referred him to Doctor
Haynes for treatment of his sleep problems. He denied that his seeking treatment from
Doctor Haynes had anything to do with creating a defense to the charges. The defendant said
that he, in fact, did not know that parasomnia was a sleep disorder until sometime in July
2006 when first diagnosed by Doctor Haynes.
The defendant denied committing any of the acts alleged by the victim. He
denied hiding in the victim’s closet or trying to pull off her towel. He denied knowing that
Officer Garrett’s friends were police officers. The defendant also denied telling a supervisor
that he was touching the victim and claimed that the supervisor probably had him confused
with his brother, Alex, who also had a daughter. In summary, the defendant adamantly
denied touching the victim in a sexual manner at any time.
In rebuttal, the State presented the testimony of Manuel Fonseca, a District
Chief with the Nashville Fire Department. Chief Fonseca testified that he became acquainted
with the defendant when the defendant was a “traveler” fire fighter who worked temporarily
in his station from January to September 2002, when the victim was 11 years old. Chief
Fonseca recalled that no issues arose concerning the defendant’s sleep habits or behavior
while at work. One day, however, as Chief Fonseca routinely asked the group about their
stress levels and their lives away from work, the defendant said, “I have sex with my
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daughter.” Chief Fonseca reported the statement to his supervisor who dismissed it as a joke.
Chief Fonseca also documented the remark in his log book, but he said that the “documents
[were] long gone” by the time of trial.
On cross-examination, Chief Fonseca testified that he saw the defendant
regularly, did not know he had a brother who also worked for the department, and, therefore,
had not confused the brothers. He said that the defendant’s statement had always bothered
him. When Chief Fonseca saw the news report of the defendant’s arrest, he immediately
telephoned the District Attorney General’s Office to inform them of the defendant’s
statement.
Following the completion of Chief Fonseca’s testimony, the defendant orally
moved for a mistrial or limiting instruction concerning Chief Fonseca’s testimony. The
defendant based these alternative requests upon the State’s failure to disclose the substance
of the defendant’s statement to Chief Fonseca, which the defendant characterized as “surprise
evidence.” The State argued that Chief Fonseca had been listed as a potential witness and
that there was no requirement to disclose the nature of his testimony in advance of trial. See
Tenn. R. Crim. P. 16(a)(2) (Rule 16 does not “authorize discovery of statements made by
[S]tate witnesses.”). The trial court denied the defendant’s request for a mistrial and his
alternative request to limit the evidence with a curative instruction.
The jury convicted the defendant of simple assault, a Class A misdemeanor,
in counts one, two, and four. In counts three and five, the jury convicted the defendant of
attempted sexual battery by an authority figure and attempted sexual battery, respectively.
At the return of the verdicts, the court and parties noted that count two would merge with
count four and that count three would merge with count five. At sentencing, however, the
trial court entered separate judgments and sentences for each count, failing to merge these
alternative counts. The court imposed sentences of six months for each assault conviction,
two years for the attempted sexual battery by an authority figure conviction, and 11 months
and 29 days for the attempted sexual battery conviction. The transcript reflects that the trial
court ordered the sentences to be served consecutively to one another, for a total effective
sentence of four and one-half years, with six months to serve in the workhouse followed by
four years’ probation. The judgments, however, reflect a total effective sentence of three
years’ split confinement consisting of six months’ incarceration in the local workhouse
followed by two and one-half years’ probation.4
4
We discern that the discrepancies may be related to the trial court’s attempt to merge the
alternative counts. The imposition of concurrent sentences, however, does not accomplish a merger of
convictions. We will address these discrepancies further in our discussion of the defendant’s sentencing
(continued...)
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On appeal, the defendant contends that the trial court erred by denying his
motion to suppress his statement to Detectives Robinson and Cooley and by denying his
motion for mistrial based upon Chief Fonseca’s rebuttal testimony. He also contends that the
evidence is insufficient to support his convictions and that a fatal variance between the
indictment allegations and the proof at trial occurred with respect to counts three and five.
The defendant argues that the trial court erroneously limited his examination of witnesses
concerning their feelings about the defendant’s placement on the sexual offender registry.
As to sentencing, the defendant urges this court to reverse the trial court’s imposition of
consecutive sentences and denial of full probation. The State concedes that the trial court
erroneously imposed consecutive sentences and failed to merge count two with count four
and count three with count five in light of their alternative allegations. In all other respects,
the State asks this court to affirm the defendant’s convictions.
Suppression of Statement
The defendant filed a pretrial motion to suppress his statement made to
Detectives Robinson and Cooley, alleging that the detectives’ surreptitious recording of his
statement made via his contacting Officer Garrett as a friend violated his rights. The State
argues that the totality of the circumstances shows that the defendant’s confession was
voluntary and that the trial court’s denial of the motion to suppress should be affirmed.
At the January 26, 2007 evidentiary hearing, Officer Garrett testified that he
“got home one evening and [he] received a phone call from [the defendant] and [the
defendant] wanted to talk to [him] about a problem . . . between [the defendant] and his step-
daughter.” When the defendant came to Officer Garrett’s home, he admitted
“inappropriate[ly] touching his step-daughter.” After discussing the victim’s allegations “for
about a minute or so,” Officer Garrett stopped the defendant and advised the defendant of
his status as a court officer and reserve officer and told the defendant, “[w]hat you are telling
me it cannot stop here.” The defendant told Officer Garrett that he needed help. Officer
Garrett and the defendant planned to meet the next day at the Davidson County Criminal
Justice Building where Officer Garrett told the defendant he would take the defendant to
someone for help.
The defendant then left Officer Garrett’s home. Later that evening, the
defendant telephoned Officer Garrett and told him that after talking to his wife, “they just
decided not to do anything about [the allegations], just to forget it.” Officer Garrett told the
defendant that he could not do that, and Officer Garrett contacted Detective Robinson the
4
(...continued)
issues.
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next day.
Officer Garrett telephoned the defendant to tell him that Detective Robinson
wanted to meet with him. During his conversation with the defendant, Officer Garrett
warned the defendant that counseling was not enough and that the defendant needed to talk
to the police. The defendant then agreed to talk to Detective Robinson.
On cross-examination, Officer Garrett said that he had known the defendant
for 10 or 12 years and that the defendant knew that he was a court officer. Officer Garrett
did not discuss with the defendant his Miranda rights because the defendant contacted him
and Officer Garrett did not interrogate the defendant at any time. Although the defendant
initially told Officer Garrett to “forget” about their conversation, the defendant “would call
[Officer Garrett] occasionally and want to know . . . what [the detectives] were going to do
about [his case].” Officer Garrett admitted that he advised the defendant to “shoot straight”
with Detective Robinson and that Detective Robinson “would take care of” the defendant.
Detective Robinson was working as an investigator with the Metro Sex Crimes
Unit when Officer Garrett contacted him on October 27, 2005, concerning the defendant’s
report that the defendant inappropriately touched the victim. After substantiating Officer
Garrett’s report via a controlled telephone call between the defendant and Officer Garrett,
Detectives Robinson and Cooley went to the fire station to interview the defendant. The
detectives identified themselves as police officers and informed the defendant that he was
not under arrest. During the recorded interview, the defendant made inculpatory admissions
concerning five separate incidents of touching the victim. The defendant admitted that “he
could have put his hand inside [the victim’s] skin just a little bit inside her vagina.” The
defendant spoke freely with the detectives and did not request a lawyer or stop the interview
at any time. The detectives extended no promises of leniency or help to the defendant,
although they did stress the importance of the defendant’s cooperation.
At the evidentiary hearing, the defendant conceded that the case presented no
issue concerning advising him of his rights via Miranda, but he argued that his statement was
involuntary due to the circumstances surrounding the interview that created “extreme undue
influence” by the detectives. The State argued that the defendant voluntarily spoke with the
detectives and that the detectives did not exert any influence during the interview. The trial
court found that the defendant’s statement did not result from any threats or inducements by
the detectives and was, therefore, voluntary.
When reviewing a trial court’s findings of fact and conclusions of law on a
motion to suppress evidence, we are guided by the standard of review set forth in State v.
Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard, “a trial court’s findings of fact in
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a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id. at
23. When the trial court does not set forth its findings of fact upon the record of the
proceedings, however, the appellate court must decide where the preponderance of the
evidence lies. Fields v. State, 40 S.W.3d 450, 457 n. 5 (Tenn. 2001). As in all cases on
appeal, “[t]he prevailing party in the trial court is afforded the ‘strongest legitimate view of
the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978
S.W.2d 861, 864 (Tenn. 1998)). We review the trial court’s conclusions of law under a de
novo standard without according any presumption of correctness to those conclusions. See,
e.g., State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299
(Tenn. 1999).
We are mindful of the well-settled principle that a confession must “be free and
voluntary, and it must neither be extracted by any sort of threats or violence nor obtained by
any direct or implied promises,” nor by the exertion of any improper influence or police
overreaching. Bram v. United States, 168 U.S. 532, 542-43 (1897). The issue of
voluntariness requires the trial judge to focus on whether the accused’s will to resist making
a confession was overborne. State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980). When
considering the voluntariness of a confession, this court must examine the totality of the
circumstances surrounding the confession to determine “‘whether the behavior of . . . law
enforcement officials was such as to overbear [the defendant’s] will to resist and bring about
confessions not freely self-determined.’” Id. (quoting and adopting the standard set forth in
Rogers v. Richmond, 365 U.S. 534, 544 (1961)).
The evidence in this case does not preponderate against the trial court’s
findings. The defendant contacted Officer Garrett seeking advice. Early in the conversation,
Officer Garrett warned the defendant that he was obliged to relay the defendant’s report to
law enforcement personnel. The defendant voluntarily engaged in the interview with
Detectives Robinson and Cooley. During the interview, the defendant freely admitted
inappropriately touching the victim on several occasions. The defendant’s statement was not
induced by any promises or threats. Relative to the circumstances of the controlled telephone
call, any statement made by the defendant during the call only served to substantiate Officer
Garrett’s report to the detectives, and the substance of the statement was not admitted at trial.
Accordingly, we conclude that the trial court correctly denied the motion to suppress.
Mistrial/Limiting Instructions
Next, the defendant contends that the trial court should have granted his request
for a mistrial based upon Chief Fonseca’s rebuttal testimony that the defendant had told
Chief Fonseca that he had “sex with [his] daughter.” The defendant argues that the State
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violated discovery rules by failing to provide the statement prior to trial; that the State
violated notice requirements of Tennessee Rule of Evidence 404(b); and that the State
violated notice requirements of Rule 608(b). The State argues on appeal that the defendant
waived his discovery and Rule 404(b) arguments by failing to cite to authority, that Rule
608(b) is inapplicable to the circumstances of this case, and that the evidence was admissible
as a statement against interest.
Whether to grant a mistrial is an issue entrusted to the sound discretion of the
trial court. See State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996).
“Generally a mistrial will be declared in a criminal case only when there is a ‘manifest
necessity’ requiring such action by the trial judge.” State v. Millbrooks, 819 S.W.2d 441, 443
(Tenn. Crim. App. 1991). The burden of establishing the necessity for mistrial lies with the
party seeking it. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). “The
purpose for declaring a mistrial is to correct damage done to the judicial process when some
event has occurred which precludes an impartial verdict.” Id. On appeal, this court will
disturb a trial court’s denial of a motion for mistrial only when there is an abuse of discretion.
State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990); Williams, 929 S.W.2d at 388. An abuse
of discretion occurs when the trial court applies an incorrect legal standard or reaches a
conclusion that is “illogical or unreasonable and causes an injustice to the party
complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185
S.W.3d 319, 337 (Tenn. 2006)); see also State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).
At trial, the State presented Chief Fonseca’s testimony without
contemporaneous objection by the defendant. Likewise, the defendant made no request for
a jury-out hearing pursuant to any rules of evidence. Following direct examination of Chief
Fonseca, the defendant vigorously cross-examined him as well. Not until the completion of
Chief Fonseca’s testimony did the defendant move for a mistrial or, alternatively, a limiting
instruction concerning his testimony. During the bench conference concerning the testimony,
the defendant only objected to the testimony on the basis of lack of discovery via Tennessee
Rule of Criminal Procedure 16.
At the motion for new trial hearing, however, the defendant argued that the
evidence should have been excluded for the State’s failure to comply with the notice
requirements and the trial court’s failure to conduct a jury-out hearing via Rules of Evidence
404(b) and 608(b). The State argued that the evidence was admissible in rebuttal to refute
the defendant’s claim of lack of memory and that the evidence impeached the defendant’s
testimony that he never admitted inappropriate conduct with the victim to any supervisor.
The State also argued that any error in admitting the testimony was harmless in light of the
convictions for simple assault relating to the only two incidents that occurred while the
defendant claimed to be asleep. The trial court denied the defendant’s motion for new trial
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without discussion.
We emphasize that our focus, as directed by the defendant’s framing of the
issue, is upon whether the trial court erred by denying a mistrial or a limiting instruction, not
whether the evidence was in itself inadmissible. Indeed, the defendant generally forfeited
a claim of erroneous admission of the evidence by failing to timely object or move to strike
at the time the State elicited the testimony. See Tenn. R. Evid. 103(a)(1) (“Error may not be
predicated upon a ruling which admits evidence unless . . . a timely objection or motion to
strike appears of record, stating the specific ground of objection if the specific ground was
not apparent from the context . . . . ”).
The State was not required to disclose the substance of the defendant’s
statement to Chief Fonseca prior to trial because the defendant’s statement to Chief Fonseca
was not a statement “made before or after arrest in response to interrogation.” See Tenn. R.
Crim. P. 16(a)(1)(A). Therefore, the trial court did not abuse its discretion by denying a
mistrial. We further agree with the State that any issue raised by the defendant relative to
Tennessee Rule of Evidence 404(b) or Tennessee Rule of Criminal Procedure 16 has been
waived for failure to cite to authority in support of his argument in his brief. See Tenn. R.
Ct. Crim. App. 10(b) (“Issues which are not supported by the argument, citation to
authorities, or appropriate references to the record will be treated as waived.”).
As to the failure of the trial court to impart to the jury instructions for limiting
the use of Chief Fonseca’s testimony, the defendant requested limiting instructions based
upon a violation of Rule 16 discovery. We see no rationale for limiting instructions based
upon a claimed violation of discovery.5
5
Had a timely request been grounded in Tennessee Rules of Evidence 613 and/or 404(b), limiting
instructions may have been warranted. If the State in its cross-examination of the defendant “afforded him
an opportunity to explain or deny” the prior statement, the rebuttal testimony might have been defensible as
impeachment evidence pursuant to Rule 613. In such a situation, the opponent of the evidence is entitled to
a jury instruction that the evidence may be used only for impeachment, or credibility, purposes. See State
v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000); Tenn. R. Evid. 105. The defendant in the present case, however,
forfeited a claim for impeachment-limiting instructions when he failed, prior to the case being submitted to
the jury, to base his bid for instructions upon Rule 613. Smith, 24 S.W.3d at 279-80.
Also, had the State proffered the rebuttal testimony as substantive evidence of the
defendant’s guilt, Tennessee Rule of Evidence 404(b) could have been imposed, if not to exclude the
testimony, to garner an instruction to prevent its use as propensity evidence. See, e.g., State v. Gilley, 297
S.W.3d 739, 759-60 (Tenn. Crim. App. 2008) (considering the trial court’s use of a limiting instruction in
determining the relationship of the probative value of the evidence against the claim of unfair prejudice
pursuant to Rule 404(b)(4)); see State v. Leach, 148 S.W.3d 42, 48 (Tenn. 2004) (“The trial court properly
(continued...)
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Variance
The defendant alleges that a variance exists between the facts alleged in counts
three and five of the indictment and the evidence at trial. He contends that the victim never
alleged any inappropriate touching at the computer until she testified to those facts at trial.
Because the computer incident, as testified to by the victim, did not include any allegation
that the defendant penetrated the victim, the defendant argues that the evidence at trial did
not correspond to the rape allegation in count five. The State argues that no variance
occurred and that the indictment stated with sufficient specificity the acts alleged to have
occurred.
A variance results when the evidence at trial does not correspond to the
elements of the offense alleged in the charging instrument. State v. Keel, 882 S.W.2d 410,
416 (Tenn. Crim. App. 1994). In many such cases, the evidence establishes the commission
of an offense different from the offense alleged in the charging instrument. See id. The
variance rule is predicated upon the theory that an accused cannot be charged with one
offense and convicted of a completely different offense. See id.
In the past, Tennessee has followed “a rather stringent variance rule, and if a
person or thing necessary to be mentioned in an indictment is described with greater
particularity than is requisite, such person or thing must be proved exactly as described in the
indictment.” Bolton v. State, 617 S.W.2d 909, 910 (Tenn. Crim. App. 1981). “The policy
now followed in this and in most other jurisdictions,” however, “is that before a variance will
be held to be fatal it must be deemed to be material and prejudicial.” State v. Moss, 662
S.W.2d 590, 592 (Tenn. 1984). Moreover,
[a] variance between an indictment and the proof in a criminal
case is not material where the allegations and proof substantially
correspond, the variance is not of a character which could have
misled the defendant at trial and is not such as to deprive the
accused of his right to be protected against another prosecution
for the same offense.
Id.
5
(...continued)
instructed the jury that the evidence could be considered for the limited purpose [pursuant to Rule 404(b)]
of determining whether it tends to show a motive.”). Again, however, the defendant in the present case did
not base his otherwise timely motion for a limiting instruction on Rule 404(b). As such, he waived a claim
that the instruction should have been given on this basis.
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In this case, the indictment contains very general allegations occurring over a
broad time-frame. Count three of the indictment alleged that “between January 17, 2004 and
November 1, 2005,” the defendant “did intentionally engage in unlawful sexual contact with
[the victim], a child thirteen (13) years of age or older but less than eighteen (18) years of
age, and at the time of the offense [the defendant] had parental or custodial authority over
[the victim].” Count five of the indictment alleged that within those same dates the
defendant “did intentionally, knowingly, or recklessly engage in unlawful sexual penetration
of [the victim], and force or coercion was used to accomplish the act.” The defendant did
not file any motion for bill of particulars in an attempt to narrow the allegations of each
count.
At trial, the victim testified that the defendant tried to reach inside her
underwear to touch her genital area while she sat on his lap at the computer. Although the
victim admitted that she had not specifically disclosed this incident prior to trial, Ms.
Hollands testified regarding her concern about the defendant’s requiring the victim to sit on
his lap to use the computer and the defendant’s reaction to her concerns. The defendant
admitted several instances of inappropriate touching in his statement to investigators. At the
close of proof, the State elected the computer incident in support of the allegations in counts
three and five. In consideration of the defendant’s motion for judgments of acquittal, the trial
court noted that the proof had not established an allegation of rape as to count five and
granted the defendant’s motion for judgment of acquittal, in part, by reducing that charge to
attempted sexual battery. The allegations made via the election narrowly defined the
evidence relied upon, and the defendant was not misled by the proof in any manner. See
State v. March, 239 S.W.2d 576, 591 (Tenn. Crim. App. 2008) (holding that variance was
not fatal when defendant was not misled), perm. app. denied (Tenn. 2009). Under the
circumstances presented in this case, we conclude that the evidence in this case “substantially
correspond[ed]” to the allegations in the indictment.
Sufficiency
We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324
(1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).
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When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the evidence,
as well as all factual issues raised by the evidence are resolved by the trier of fact. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State
the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. Id.
Tennessee Code Annotated section 39-13-101(a)(3) defines assault as
“[i]ntentionally or knowingly caus[ing] physical contact with another and a reasonable person
would regard the contact as extremely offensive or provocative.” See T.C.A. § 39-13-
101(a)(3).
Sexual battery by an authority figure is the “unlawful sexual contact with a
victim by the defendant . . . [when] . . . [t]he victim was, at the time of the offense, thirteen
(13) years of age or older but less than eighteen (18) years of age [and] [t]he defendant had,
at the time of the offense, parental or custodial authority over the victim and used such
authority to accomplish the sexual contact.” See id. § 39-13-527(a)(1)(B). Sexual battery
is the “unlawful sexual contact with a victim by the defendant . . . [when] accomplished by
force or coercion.” See id. § 39-13-505(a)(1). “‘Sexual contact’ includes the intentional
touching of the victim’s . . . intimate parts, or the intentional touching of the clothing
covering the immediate area of the victim’s . . . intimate parts, if that touching can be
reasonably construed as being for the purpose of sexual arousal or gratification.” See id. §
39-13-501(6). Additionally, “‘[i]ntimate parts’ includes the primary genital area, groin, inner
thigh, buttock or breast of a human being.” Id. § 39-13-501(2).
“A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense . . . acts with intent to complete a course of action or cause
a result that would constitute the offense, under the circumstances surrounding the conduct
as the person believes them to be, and the conduct constitutes a substantial step toward
commission of the offense.” See id. § 39-12-101(a)(3).
In our view, the evidence is sufficient to support the defendant’s convictions
for assault, attempted sexual battery by an authority figure, and attempted sexual battery.
With respect to count one, the evidence showed that the victim awoke to find the defendant
lying on top of her. Although she could not remember whether the defendant fondled or
attempted to fondle her because she had been asleep, the evidence clearly supports a jury’s
finding of “extremely offensive or provocative” physical contact. Likewise, the evidence
supports the jury verdict’s of assault in counts two and four based upon proof that the victim
awoke to find the defendant’s finger touching the inside area of her labia. The State alleged
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these counts, however, as alternatives. Accordingly, the trial court should have merged them.
The State also alleged alternative theories of sexual battery by an authority figure and
attempted sexual battery by force or coercion in counts three and five. The proof showed that
the defendant attempted to push aside the victim’s underwear to attain skin-to-skin contact
with her genital area while the victim sat on the defendant’s lap to use the computer. We
conclude that the evidence is also sufficient to support the convictions of attempted sexual
battery by an authority figure and attempted sexual battery. Because these counts alleged
alternative theories, however, counts three and five should have also merged.
Limitation of Examination Concerning Sexual Offender Registry
The defendant argues that the trial court erroneously limited his examination
of witnesses concerning their feelings about the defendant’s sexual offender registry
supervision if convicted of the charged offenses. The trial court ruled pretrial that evidence
of any witnesses’ views concerning sexual offender registry supervision was irrelevant and,
therefore, inadmissible. The State contends that the trial court correctly excluded such
evidence because its consideration by a jury in a non-capital trial is precluded by Tennessee
Code Annotation section 40-35-201(b).
The decision to admit or exclude evidence generally lies within the sound
discretion of the trial court. State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999); State v. Jackson,
52 S.W.3d 661, 669 (Tenn. Crim. App. 2001); State v. Carroll, 36 S.W.3d 854, 867 (Tenn.
Crim. App. 1999), perm. app. denied (Tenn. 2000). On appellate review of a trial court’s
decision to admit or exclude evidence on the basis of relevance, an appellate court may
disturb the lower court’s ruling only if there has been an abuse of discretion. State v.
DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Baker, 785 S.W.2d 132, 134 (Tenn.
Crim. App. 1989).
We conclude that the trial court committed no abuse of discretion by excluding
examination of witnesses regarding their views on the defendant’s sexual offender registry
supervision. Code section 40-35-201(b) provides “[i]n all criminal cases, except for capital
crimes . . . , the judge shall not instruct the jury, nor shall the attorneys be permitted to
comment at any time to the jury, on possible penalties for the offense charged nor all lesser
included offenses.” The statutory provisions concerning lifetime community supervision of
certain sex offenders are mandatory. See T.C.A. § 39-13-524 (“any person who . . . [commits
or attempts to commit certain enumerated offenses] shall receive a sentence of community
supervision for life”).6 Likewise, a defendant’s compliance with the sexual offender registry
6
Code section 39-13-524 mandates lifetime community supervision following a conviction of rape,
(continued...)
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requirements following release on parole is also mandatory. See generally id. §40-39-102.
In our view, any testimony concerning the defendant’s supervision if convicted or any
testimony concerning a witness’s opinion regarding such supervision was irrelevant and
inadmissible.
We further note that the defendant’s reliance upon Ward v. State, 315 S.W.3d
461 (Tenn. 2010), is misplaced. In that case, our supreme court held that lifetime community
supervision is a punitive consequence of a conviction of certain sexual offenses and,
therefore, a defendant must be informed of the consequence of lifetime community
supervision when entering a guilty plea to an applicable offense. See Ward, 315 S.W.3d at
474. The case in no way supports the principle that a jury must be informed of the
consequences of a sexual offense conviction as urged by the defendant in this case. The trial
court correctly denied questions concerning such evidence.
Sentencing
In his final issue, the defendant contends that the trial court erred by imposing
consecutive sentences in his case and by denying him full probation. In view of the trial
court’s failure to merge the attempted sexual battery by an authority figure and the attempted
sexual battery convictions, we agree with the State that the trial court erroneously ordered
consecutive service. See T.C.A. § 40-35-115(b)(5) (allowing consecutive sentencing for
offenders convicted of “two (2) or more statutory offenses involving the sexual abuse of a
minor” under certain circumstances). We also discern no other basis to impose consecutive
sentences in this case. See id. That being said, on remand the trial court shall enter
judgments reflecting merger of counts two and four and counts three and five with the
imposition of concurrent sentences in counts one, two, and three. The defendant does not
challenge the length of the sentences imposed by the trial court. Accordingly, following
remand, the total effective length of sentence imposed is now two years.
The defendant also claims that the trial court should have granted him full
probation. The trial court sentenced the defendant to a term of probation in counts two
through five. The trial court sentenced the defendant to a six month period of incarceration
only in count one based upon its finding that some period of incarceration was necessary to
avoid depreciating the seriousness of the offenses. The State argues that the trial court
6
(...continued)
aggravated rape, aggravated sexual battery, and child rape. Thus, lifetime supervision was potentially
applicable only to the defendant’s rape charges. That being said, the defendant’s conviction of attempted
sexual battery by an authority figure will require compliance with sexual offender registry requirements upon
the completion of his sentence. See T.C.A. § 40-39-102(5)(A)(xviii).
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correctly denied full probation and urges this court to affirm a sentence of split confinement
consisting of six months’ incarceration followed by probation for the remaining portion of
the two-year sentence.
When considering challenges to the length and manner of service of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial
court are correct. T.C.A. § 40-35-401(d)(2006). This presumption, however, “is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). The appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that
the trial court gave “due consideration and proper weight to the factors and principles which
are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are
adequately supported in the record, then we may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). In the event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.
In making its sentencing decision, the trial court was required to consider:
(1) The evidence, if any, received at the trial and the sentencing
hearing;
(2) The presentence report;
(3) The principles of sentencing and arguments as to sentencing
alternatives;
(4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the
mitigating and enhancement factors set out in §§ 40-35-113 and
40-35-114;
(6) Any statement the defendant wishes to make in the
defendant’s own behalf about sentencing.
T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).
Because, in this instance, the sentence imposed is ten years or less, the trial
court was required to consider probation as a sentencing option. See T.C.A. § 40-35-303(a),
(b). Nevertheless, the defendant bears the burden of establishing his “suitability for full
-22-
probation.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see T.C.A. § 40-
35-303(b); State v. Bingham, 910 S.W.2d 448, 455-56 (Tenn. Crim. App. 1995), overruled
in part on other grounds by Hooper, 29 S.W.3d at 9-10. In consequence, the defendant must
show that probation will “subserve the ends of justice and the best interest[s] of both the
public and the defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)
(quoting Hooper v. State, 297 S.W.2d 78, 81 (1956)), overruled on other grounds by Hooper,
29 S.W.3d at 9-10.
Among the factors applicable to probation consideration are the circumstances
of the offense; the defendant’s criminal record, social history, and present condition; the
deterrent effect upon the defendant; and the best interests of the defendant and the public.
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). The trial court denied the defendant’s
request for full probation based upon its finding that “some confinement is necessary to avoid
depreciating the seriousness of the offense, and to act as a deterrent to others.” We conclude
that the record supports the trial court’s denial of full probation.
Conclusion
The trial court correctly denied the defendant’s motion to suppress, motion for
mistrial, and motion for judgments of acquittal based upon variance. The trial court properly
excluded testimony concerning witnesses’ views regarding the sexual offender registry
requirements. The evidence is sufficient to support the convictions. The trial court correctly
denied full probation in this case. The trial court did err, however, by ordering consecutive
sentences and by failing to merge counts two and four and counts three and five.
Accordingly, on remand, the trial court shall enter judgments reflecting merger of these
counts and the imposition of concurrent sentences in the remaining counts (one, two, and
three). In all other respects, the judgments of the trial court are affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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