State of Tennessee v. Philip Michael Martinez ( 2021 )

07/14/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
February 2, 2021 Session
STATE OF TENNESSEE V. PHILLIP MICHAEL MARTINEZ
Appeal from the Circuit Court for Gibson County
No. 19545 Clayburn Peeples, Judge
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No. W2019-02033-CCA-R3-CD
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A Gibson County Grand Jury indicted the Defendant, Phillip Michael Martinez, for
attempted aggravated sexual battery in Count 1 and solicitation of a minor in Count 2. Prior
to trial, the State entered a nolle prosequi for the solicitation of a minor charge. At the
conclusion of trial, the jury found the Defendant guilty as charged of the attempted
aggravated sexual battery count. See Tenn. Code Ann. §§ 39-12-101; 39-13-504(a)(4).
Thereafter, the trial court sentenced the Defendant to three years’ incarceration at thirty
percent release eligibility, sentenced him to community supervision for life, and ordered
him to register as a sexual offender for life. On appeal, the Defendant argues: (1) the trial
court erred in allowing the forensic interviewer to testify as an expert; (2) the trial court
erred in admitting the victim’s forensic interview as substantive evidence; (3) the trial court
erred in instructing the jury on flight; (4) the State made two improper comments during
its closing argument; and (5) the evidence is insufficient to sustain his conviction because
the proof failed to show that he acted for the purpose of sexual arousal or gratification.
After review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and J. ROSS DYER, JJ., joined.
Rachele Gibson, District Public Defender, and M. Todd Ridley, Assistant Public Defender,
for the Defendant-Appellant, Phillip Michael Martinez.
Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Garry G. Brown, District Attorney General; and Jennifer McEwen,
Jason Scott and Scott Kirk, Assistant District Attorneys General, for the Appellee, State of
Tennessee.
OPINION
This case concerns the Defendant’s attempted aggravated sexual battery of the
victim, P.B.,1 at a movie theater in Milan, Tennessee, on July 1, 2016. Because the State
entered a nolle prosequi of the Defendant’s solicitation of a minor charge, the remaining
charge of attempted aggravated sexual battery was tried before a Gibson County Circuit
Court jury.
M.B. testified that on the night of July 1, 2016, she took P.B., her six-year-old son,
and two of her other children to see the movie “Finding Dory” at the Milan theater. During
the movie, P.B. left to go to the bathroom. When he returned five minutes later, P.B.
informed her that “some man in the bathroom touched his private.” M.B. said that when
P.B. informed her of this incident, he was “teary eyed[,]” and she “knew something was
wrong[.]”
M.B. immediately took P.B. to the theater’s lobby where they talked with the theater
owners about what had happened. P.B. told the owners that the man in the bathroom had
been wearing a red shirt, and the owners called the police. M.B. said that the theater owners
told her and P.B. to finish watching the movie while they waited for the police to arrive,
and she acknowledged that at that time, a suspect had not yet been identified. She said that
when Officer Kelvin Whitney from the Milan Police Department arrived at the theater,
P.B. was “crying” and “upset” and told him that a man had touched his private area in the
theater bathroom. P.B. also identified the Defendant, who was wearing a red shirt in the
theater’s surveillance video, as the man who touched him inappropriately. M.B. explained
that she did not know the Defendant and had never seen the Defendant before P.B.
identified him on the surveillance video. She said that approximately three weeks after the
incident, P.B. discussed what had happened to him during a forensic interview at the Carl
Perkins Center.
P.B. testified that he had gone to see “Finding Dory” at the theater in Milan and that
when he went to the theater bathroom that night, a man in a red shirt came in, blocked the
bathroom door, and “asked if he could touch [P.B.’s] private spot.” P.B. said the man
pulled down P.B.’s pants and “squeezed” his “penis.” Afterward, P.B. pulled up his pants,
left the bathroom, and told his mother that “somebody touched [his] private spot.” P.B.
said that the incident made him feel “[c]onfused” and “mad.” After this incident, P.B. told
the owners of the theater what happened, and then they returned to the movie while they
waited for the police to arrive. P.B. later told the police that “somebody touched [his]
private spot” and that the man who did this was wearing a red shirt. P.B. later identified
the man who touched him inappropriately from the theater surveillance video. P.B. also
1
It is this court’s policy to refer to the minor victim of a sexual offense, as well as the minor
victim’s family members, by their initials only.
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identified a man in a red shirt as the man who touched his inappropriately in still
photographs made from the theater’s surveillance video, and these photographs were
admitted into evidence. P.B. said that after he discussed the incident with his mother, the
theater owners, and the police, he also talked to “a lady” and the prosecutor about it. P.B.
said that he did not see the man from the bathroom in the courtroom and that he could not
recall what the man from the bathroom looked like.
On cross-examination, P.B. said that he had already used the bathroom and was in
the restroom alone when the man with the red shirt came in. He said this man stood in
front of the door so he could not leave and asked him “if he could touch it,” and P.B. said,
“No.” At the time, P.B.’s pants were pulled up. When asked what happened next, P.B.
said, “[The man] pulled—he touched my private.” P.B. said that when he and his mother
talked to the theater owners about what happened, his mother explained most of it, but he
“told them a little bit, but not like all of it.” P.B. then “told the police” what the man had
done to him in the restroom. P.B. also recalled discussing what happened with a lady but
did not recall telling this lady that the man had not touched him in the theater bathroom.
When asked if he thought he told this lady something different, P.B. replied, “I don’t
remember.” P.B. said that after the man touched him, he left the restroom because the man
was no longer blocking the door, and he told his mother what happened. He said he did
not see where the man went after the incident in the bathroom and did not recall telling the
police that he saw the man go into the other room where a movie was being shown.
Sherry Crooks, one of the owners of the Milan movie theater, testified that around
8:00 p.m. on July 1, 2016, M.B. came out with P.B. to the theater’s lobby, and M.B.
informed her that a man had touched P.B. inappropriately in the theater’s bathroom. Mrs.
Crooks2 talked to her husband about the situation, and they called the police. She stated
that P.B. said this man was wearing a red shirt and shorts, but he never told her what
happened in the bathroom. At the time, she did not know who the man in the red shirt was.
Mrs. Crooks said that M.B. and P.B. went back inside the theater to be with M.B.’s other
children while she called the Milan Police Department.
Mrs. Crooks stated that the police arrived approximately five minutes after they
called them. She and her husband pulled up the theater’s surveillance video for the officers
so that they could try to identify the man described by P.B. Upon reviewing the substantial
surveillance video footage, P.B. identified the Defendant as the man in the red shirt from
the bathroom. Mrs. Crooks said she knew the Defendant, whom she described as “very
polite[,]” because the Defendant and two of the Granims children were frequent customers
2
We have identified certain witnesses by their title or their first name in order to distinguish them
from other witnesses with the same surname. However, we generally refer to witnesses by their surname
for efficiency purposes, and we mean no disrespect in doing so.
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at the theater. Mrs. Crooks recalled that the Defendant’s first name was Phillip, and she
was able to retrieve his credit card receipt to determine that the Defendant’s last name was
Martinez, and she provided this information to the police. The receipt showed that the
Defendant had purchased his movie tickets on July 1, 2016, at 6:26 p.m. Mrs. Crooks also
identified the Defendant at trial as the man from the surveillance video.
Mrs. Crooks remembered the Defendant being present at the theater the night of
July 1. She sold the Defendant his movie tickets that night, and she said the Defendant
acted normally and did not appear to be sick at the time. She recalled seeing the Defendant
headed toward the restroom at a later point. Mrs. Crooks stated that the theater’s bathroom
was “very small” with only one stall and one urinal. She then saw the Defendant leave the
theater for a long period of time to take a phone call, during which he seemed “concerned,”
before he returned to the theater and left with the Granims children. Mrs. Crooks thought
that it was “odd” that the Defendant and the Granims children left the theater before the
movie ended. She noted that the Defendant appeared “[c]oncerned, like he was bothered”
when the exited the theater and that the Defendant and the Gramins children left the theater
just minutes after P.B.’s mother made the report to her. She also confirmed that the
Defendant and the children with him left the theater before the police arrived.
Mark Crooks, Sherry Crooks’s husband, testified that he had seen the Defendant on
prior occasions at the theater. He said that when he saw the Defendant on July 1, 2016, the
Defendant appeared normal before P.B.’s mother reported the incident in the bathroom,
but the Defendant “looked concerned” when he was talking on his cell phone just after the
incident was reported. Mr. Crooks acknowledged that he did not hear the substance of the
Defendant’s phone conversation. He noted that the Defendant “seemed very concerned”
and that the Defendant left the theater “in a hurry” before the movie he had been watching
was over. He said that he did not see the Defendant going in and out of the bathroom as if
he were ill the night of July 1. Mr. Crooks identified the Defendant at trial as the same
man he had seen in the theater on July 1, 2016.
Leslie Crooks, Sherry Crook’s daughter-in-law, testified that she was working at the
Milan Theater the night of July 1, 2016. She said that after she heard M.B. make the report
to Sherry Crooks about what happened to P.B., she retrieved the surveillance footage.
When the officer arrived, he asked her to play through the footage to look for “what [P.B.]
described as a man in a red shirt and black shorts.” She said that as the officer and P.B.
looked on, she played approximately an hours’ worth of footage to look at all the people
who were in the theater that night. Leslie Crooks stated that after showing P.B. several
individuals who matched the description he gave, P.B. identified the Defendant in several
different portions of the video as the man in the red shirt who had been in the bathroom
with him. She noted that although she did not know the Defendant’s name, she recognized
him as a frequent customer at the theater. She also noted that the surveillance footage
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showed that the Defendant had been to the concession stand three or four times that night.
Leslie Crooks explained that the time listed in the surveillance video was approximately
one day and one hour earlier than the actual day and time that the events occurred. She
identified the Defendant at trial as the man wearing the red shirt in the video footage.
Relevant portions of this surveillance video were played for the jury, and Leslie
Crooks confirmed that the footage fairly and accurately represented the portions of the
video that P.B. saw that night. The portions of the surveillance video played for the jury
showed the Defendant buying a ticket for him and the Granims children at 5:24 p.m. From
6:56 p.m. to 6:58 p.m., the video depicts M.B. and P.B. disclosing the incident in the theater
bathroom to the theater owners. From nearly 6:59 p.m. to 7:00 p.m., the video shows the
Defendant exiting the concession area, appearing to talk on his cell phone while pacing
back and forth, and then walking past the concession area inside the theater with his
sunglasses on. At 7:01 p.m., the video shows the Defendant and the Granims children
exiting the theater.
Officer Kelvin Whitney of the Milan Police Department testified that he responded
to the July 1, 2016 call at the theater in less than five minutes. When he arrived, he talked
with M.B. and P.B., although he did not ask P.B. many questions because he felt that job
should be left to the forensic interviewer. Officer Whitney said that he could tell P.B. was
“scared” when he talked to him. P.B. told him that a man had “followed him” into the
theater restroom and “touched . . . his penis area.” Officer Whitney acknowledged that he
did not review the surveillance video because Investigator David Blurton reviewed it.
Officer Whitney also acknowledged that he did not speak with the Defendant and did not
take any written statements.
Detective Dennis Mitchell of the Milan Police Department testified that he was first
assigned to this investigation on July 5, 2016. He said that after receiving the Defendant’s
last name, he cross-referenced driver’s license information with the license plate on a
vehicle, which provided him with an address on Shepard Street in Milan for the Defendant.
On July 5, 2016, he and Investigator Blurton went to that address, found the Defendant’s
vehicle, spoke to the Defendant, and brought him to the police station for questioning the
same day. Prior to any questioning, Detective Mitchell informed the Defendant of his
rights. During this July 5, 2016 interview, which was video and audio recorded, the
Defendant initially claimed he had been vacationing in New Jersey on July 1, 2016;
however, when confronted with a still shot of him from the surveillance footage and his
signature on the theater receipt, the Defendant acknowledged that he was present at the
theater on July 1, 2016. Detective Mitchell said the Defendant later acknowledged that he
had “some type of altercation” with P.B. at the movie theater. However, the Defendant
denied touching P.B. and denied asking if he could touch P.B.’s penis. When Detective
Mitchell asked the Defendant why he left the movie prior it being over, the Defendant
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claimed that he was having some intestinal issues, which required him to leave. The
Defendant also claimed that he was in the theater bathroom because of his intestinal
distress. At the end of this interview, Detective Mitchell placed the Defendant under arrest.
On cross-examination, Detective Mitchell acknowledged that he had not been to the
movie theater and had not spoken to P.B. at the time of the Defendant’s arrest. During
Detective Mitchell’s testimony, the video recording of the Defendant’s interview was
played for the jury. In it, the Defendant stated that he had gone to New Jersey around the
end of June and returned to Milan a few days ago. Later, he admitted that he had been in
town the weekend of July 1, 2016. When the Defendant was shown a still shot of him
taken from the theater’s surveillance video and a receipt from his movie ticket, he said, “I
guess it’s me,” before stating that he supposed he was at the movies the past Friday rather
than the previous Friday. When asked if there was an incident while he was at the movies
that night, the Defendant said that he went to the theater bathroom and entered a stall that
did not have a lock, and a young boy opened the stall door and stared at him and would not
shut the door. Detective Mitchell said that although the Defendant indicated that the boy
had come in the bathroom after him, the evidence he had showed that the boy was already
in bathroom and that the Defendant entered the bathroom and then touched the boy’s
private part. The Defendant replied that he “didn’t touch anything” and that when the boy
“opened the door on [him,]” he told the boy, “Don’t make me tell your mom.” He also
claimed that he went past the boy at the urinal before entering the bathroom stall. The
Defendant said that he was in the stall because his stomach was hurting and he had diarrhea.
Detective Mitchell asked the Defendant why a six-year-old boy would tell his mother that
a man touched his private while he was at the urinal, asked him if he liked it, and then
asked if he could touch it again, and the Defendant replied, “I swear to God that I would
never do something like that.” When Detective Mitchell asked why would a six-year-old
boy would make up that story, the Defendant suggested that after he yelled at the boy to
shut the stall door, the boy got mad, and told him mom a lie about what happened.
Detective Mitchell said that the surveillance video showed the Defendant coming out of
the bathroom, immediately getting on his cell phone, and then leaving the theater before
the movie he was watching was over. The Defendant claimed that a friend actually called
him on his cell phone, that he told the friend that he had to quickly end the conversation,
and then he told the kids with him that they had to leave the movie early because his
stomach hurt. He said that the friend who called him was named “Brett,” although he did
not know Brett’s last name and did not know Brett’s phone number.
Also on cross-examination, Detective Mitchell stated that he was present for P.B.’s
forensic interview but actually watched the interview live on a television in a different
room. The defense then elicited the following information from Detective Mitchell:
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Defense Counsel: During that interview did [P.B.] say that he had
been touched at the theatre?
Detective Mitchell: No. He did not.
Defense Counsel: He denied ever being touched at the theatre. Is
that correct?
Detective Mitchell: He—he stated during the interview that the
incident happened, but he never included the part
about the touching.
Defense Counsel: He explicitly denied being touched. Isn’t that
correct?
Detective Mitchell: Yeah. I recall that being correct, that he denied
when asked.
On redirect examination, Detective Mitchell said that he recalled P.B. saying in the
forensic interview that the Defendant asked if he could touch P.B.’s penis in the theater’s
restroom. He noted that P.B. made “a disclosure” that “would be seen as sexual abuse[,]”
but he recalled P.B. “deny[ing] the actual touching [of] his penis.” When asked if P.B.
explained why he denied that the Defendant touched his penis, Detective Mitchell stated,
“I don’t recall. I don’t recall what [P.B.] said about that.”
Detective Mitchell said there was a twenty-four-day delay between the July 1, 2016
incident and P.B.’s forensic interview. He acknowledged that it was the best practice to
set up the forensic interview as quickly as possible after the incident, especially when
dealing with young children. When asked if the twenty-four-day delay in this case was
excessive, he stated that such a delay was “not uncommon” because there were so few
forensic interviewers in West Tennessee. However, he stated that he did not know the
“exact reason” why P.B.’s forensic interview was delayed.
Detective Mitchell reiterated that in order to find the Defendant, he ran the
Defendant’s drivers license and cross-referenced it with a license plate in order to get the
potential address associated with the Defendant’s name on the theater receipt. He stated
that a regular person could not conduct this type of investigation and that the police had to
run these searches in order to determine where the Defendant might be. He stated that the
Defendant did not own the home that he was living in and that he was living there with
other individuals. He also said that he did not believe the utilities were in the Defendant’s
name at the house where he was living.
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Detective Mitchell asserted that he often instructed the parent not to speak to the
child about the incident because he did not “want to run the risk of a parent . . . prompting
a child to come to an interview and . . . say something that’s not true.” When asked if it
was common for children’s stories to change over the course of an investigation, he stated
that “it’s not common that the story itself changes, but sometimes [the children] forget
details.” He asserted that P.B.’s interview might have yielded different results if it had
been conducted the night of the incident. He also said that because the forensic interview
in this case took place three weeks after the incident, P.B. “could have forgotten some
things[.]” He also acknowledged that the faster the forensic interview is conducted the
more likely it is to be accurate. When asked what kinds of things will cause a child to
recant and change their story, Detective Mitchell replied:
[A] parent could prompt a child what to say or not to say. . . . Time. . . . [I]t’s
very important that we do the forensic interview as soon as possible because
the child is going to remember then. They may forget things or not state
things the same three weeks later as they would today.
On recross examination, Detective Mitchell read aloud his notes from the forensic
interview, which stated, “[P.B.] denied that the grownup, [the Defendant], actually touched
his penis. [P.B.] plainly stated today that the grownup, [the Defendant], only looked at
[his] penis and the grownup, [the Defendant], asked [P.B.] if he could touch his penis.”
Sydni Turner testified that she had been a forensic interviewer for almost three-and-
a-half years and that she had conducted the forensic interview with P.B. on July 25, 2016,
at the Carl Perkins Center, an accredited child advocacy center focused on preventing and
treating child victims of physical and sexual abuse. She explained that “[a] forensic
interview is a single session interview utilized to elicit a child’s specific statement
regarding any kind of allegation of sexual abuse, physical abuse, drug exposures and even
witnesses to crimes.” She said that every county in Tennessee conducts forensic
interviewing and that the State has been doing forensic interviewing for the last fourteen
years.
The recording of P.B.’s forensic interview was played for the jury. In it, P.B. stated
that no one had ever touched his body inappropriately. He said, without elaboration, that
his mother “told him not to tell nobody.” P.B. said that the night at the movie theater, he
encountered a man wearing a red shirt and black pants in the theater’s bathroom. P.B. said
that right after he finished using the bathroom, the man entered the bathroom and tried to
touch his “private,” but P.B. said “No.” At the time, he and this man were the only people
in the bathroom. He stated that the man saw his “private” because P.B. had been using the
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bathroom but that this man did not touch P.B.’s “private” part. P.B. said that after telling
the man, “No,” the man went into the bathroom stall. P.B. said that he left the bathroom
and told his mother what had happened. Then, he and his mother went to the front desk,
and “they called the cops.” P.B. stated that he did not see the man’s private parts and that
the man in the bathroom did not touch P.B.’s private parts. When Turner asked P.B. if he
told his mother something other than what he told her, P.B. paused and then said, “No.”
Turner stated that in order to be a forensic interviewer, she was required to have, at
a minimum, a bachelor’s degree in some field of social services. She said she had received
a bachelor’s degree in psychology from the University of Memphis and a master’s degree
in social work in 2018 from the University of Tennessee—Knoxville. She also completed
a required forty-hour general forensic interviewing of children training at the National
Child Advocacy Center in Huntsville, Alabama in December 2015. Turner said that while
she was required to complete eight hours of supervision under a trained forensic
interviewer, she actually completed sixty-seven hours of supervision.
Turner said that she began conducting forensic interviews in January 2016 and that
as of the date of the Defendant’s trial, she had completed 1200 forensic interviews. She
confirmed that she routinely conducts 16-18 forensic interviews a week and regularly
completes continuing education in the field of forensic interviewing. A copy of Turner’s
CV was admitted into evidence. Turner said that prior to becoming a forensic interviewer,
she worked at the Carl Perkins Center for nearly ten years as a Family Advocate working
on case management and as an office manager transcribing interviews. Turner said that in
her role as a forensic interviewer, she serves on the Child Protective Investigative Team
and is a member of that team in all twenty counties that the Carl Perkins Center serves.
Turner asserted that all of her forensic interviews are peer reviewed, which means that her
supervisor, who is a seasoned forensic interviewer, and the other forensic interviewers in
her office meet and critique each forensic interview. She said she follows the National
Child Advocacy Center protocol, which is the one most used in Tennessee and is a semi-
structured protocol that takes into account the child’s delays, disabilities, speech, and age
and is focused on what the child wants to talk about. She said she had testified in court
twenty times and had been qualified as an expert more than once in the field of forensic
interviewing. Turner was accepted as an expert in the field of forensic interviewing.
Turner stated that the child advocacy center where P.B.’s forensic interview was
conducted is a neutral, non-threatening environment. Prior to the forensic interview the
children are told the are “not in trouble for being there” and that they are “going to talk
about whatever they want to talk about” and that they need to “talk[ ] about the truth.” She
explained that there is an observation room, near the forensic interview room, where the
Department of Children’s Services worker and a law enforcement officer observe the
forensic interview live on a monitor. Before the interview takes place, the child and parent
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are told that the forensic interview is being recorded and that certain identified individuals
will be observing. However, she explained that just the forensic interviewer and the child
are in the room while the interview is taking place. She stated that her questions during
the forensic interview are “non-leading” and “non-suggestive.”
When asked, based on her training and experience, about the different types of
outcomes from a forensic interview, Turner said, “[B]ased on my experience from forensic
interviewing, there are different types of disclosures. Sometimes there are no disclosures
at all. Sometimes there are partial disclosures or tentative disclosures and also there are
full disclosures[.]” She stated that P.B.’s disclosure during the forensic interview was not
a “partial disclosure because that would mean that he said something happened and gave
no detail about it.” Instead, she said that P.B.’s disclosure was “more of a disclosure where
he . . . was reluctant to talk to me, so it was more of what we would just call a reluctant
disclosure—reluctant child.” She also stated that recantations can occur, when “a child
makes a disclosure of some sort and then takes back what they said or changes what they
say.” When asked if she had been trained on any factors that might influence the outcome
of a forensic interview, Turner replied:
Yes. There’s both positive and negative influences that can cause
outcomes in a forensic interview . . . .
The positive things would be if a child is, number one, believed about
whatever they outcry about and . . . they have positive person in—you know,
support person, adult, that . . . is there and however they respond to whatever
[the child] say[s]. Whether that’s negative or positive, that affects interviews
in general. Of course, if there’s external factors where there’s been a major
disruption in the child’s life based upon what’s occurred or what the child
says. We’ve had different things happen where . . . the main provider in the
home is the perpetrator and so that child feels like they can’t talk about what
happened because that person pays the bills and that sort of thing . . . or if
. . . anyone tells the child what to say or what not to say, . . . there’s some
sort of consequence for that as well. That’s just . . . some different things
that have happened.
She said that the timing of the forensic interview can play a factor in the form of the
disclosure because if the child has “made a disclosure and then things have already been
taken care of or moved forward, [the child] can move on and not want to bring it back up
again.” Turner said the “best practice” is for the forensic interview to take place
“immediately.” She noted that the interview was not scheduled until July 5, 2016, and did
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not take place until twenty days later, which was “not the best practice, but for whatever
reason that’s what happened, whether it was something going on with . . . the availability,
the amount of cases we had at the time[.]”
Mark Ryan Crooks, Sherry and Mark Crooks’ son, testified that he recalled the
incident on July 1, 2016, when he was working at his parents’ movie theater. He noticed
“some boys that kept going in and out of the bathroom, which is typical,” and he observed
the Defendant “coming in and out of the theater[,] and he didn’t always get concessions .
. . but he kept coming in and out.” He also saw a boy come out of the bathroom, come
“back [into the lobby] with his mom[,]” and then the boy and his mother “went to my
parents and told them something” that “shocked” his parents. He stated that five to ten
minutes after the Defendant left the bathroom, the boy and his mother came out of the
theater and talked to his parents. Mark Ryan said that this boy and his mom mentioned
that “the guy was wearing a red shirt” and as he looked for someone wearing a red shirt
in the theaters, he saw the Defendant, who was wearing a red shirt and was later identified
by the child as the perpetrator, go outside and talk on the phone. Then he saw the
Defendant come “back in[,]” and the Defendant “grabbed” the boys that were with him
and “left before any police arrived.” He confirmed that the Defendant left with the boys
before the movie they were watching had ended. Mark Ryan said he did not think the
Defendant had been alerted or identified at the point that he left the movie theater.
Bradley Granims, the Granims’ oldest child, testified that the Defendant was a
close family friend who lived with his family for a period of time. He remembered leaving
the theater early on July 1, 2016, after the Defendant said he was not feeling well. He
asserted that they were not in a hurry when they left the theater.
Patricia Granims testified that the Defendant had resided with her family when they
lived in Florida and Tennessee. She said that the Defendant helped care for three of her
sons while one of her sons was receiving cancer treatments at St. Jude’s Hospital. She
stated that on July 1, 2016, she was in Texas with her husband while her children were
being cared for by the Defendant. She said she had no concerns with the Defendant being
alone with her children and had never seen the Defendant behave in an inappropriate
manner with her children. Patricia said that although law enforcement took all of their
phones, computers, and laptops, they were able to get all of these things back, and she
knew of no issues with anything on these electric devices.
The Defendant did not testify on his own behalf at trial.
At the conclusion of trial, the jury found the Defendant guilty of the charged offense
of attempted aggravated sexual battery. Following a sentencing hearing, the trial court
determined that the Defendant was a Range I, standard offender and imposed a sentence of
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three years at thirty percent release eligibility, sentenced him to community supervision for
life, and ordered him to register as a sexual offender for life.
The Defendant timely filed a motion for new trial. Thereafter, he filed an amended
motion for new trial, alleging, in pertinent part, that the evidence was insufficient to sustain
his conviction; that the trial court erred in qualifying Sydni Turner as an expert in the field
of forensic interviewing; that the trial court erred in admitting the forensic interview, given
that the forensic interview was inadmissible hearsay and was not admissible pursuant to
Code section 24-7-123; that the prosecutor made improper arguments during closing
argument; and that the trial court erred in instructing the jury on the inference of guilt
arising from flight of the accused. Following a hearing, the trial court denied the motion
for a new trial without elaboration. The Defendant then filed a timely notice of appeal.
ANALYSIS
I. Forensic Interviewer’s Expert Testimony. The Defendant argues that the trial
court abused its discretion in allowing Sydni Turner to testify as an expert witness
regarding P.B.’s forensic interview, which prejudiced his defense. He asserts that “the
basis and scope” of “Turner’s claimed expertise” was unclear from the record and that the
only purpose of Turner’s testimony “was to improperly bolster” P.B.’s credibility, see State
v. Ballard, 855 S.W.2d 557 (Tenn. 1993); State v. Bolin, 922 S.W.2d 870 (Tenn. 1996).
The Defendant asserts that “[t]he State was rightfully concerned that the inconsistencies in
P.B.’s story might very well lead the jury to acquit [the Defendant]” and “clearly viewed
Ms. Turner as an essential witness to rehabilitate P.B.” In response, the State contends that
the trial court appropriately limited Turner’s testimony to explaining the process of
conducting a forensic interview and the factors that can affect a minor victim’s disclosure.
The State also insists that Turner’s testimony, which did not provide an opinion on an
ultimate issue, did not improperly bolster P.B.’s credibility and merely assisted the jury by
providing a context for P.B.’s inconsistent statement. We conclude that although the trial
court erred in allowing Turner to testify as an expert under these circumstances, the error
was harmless.
Because the issues regarding the admission of Turner’s testimony and the forensic
interview are intertwined, we will summarize the relevant portions of the record as to both
issues here. During a jury-out hearing after the conclusion of Detective Mitchell’s
testimony at trial, the State informed the trial court that it wished to call Sydni Turner, the
forensic interviewer, for the “limited purpose of talking about part of [P.B.’s] interview”
and that it sought to qualify Turner as an expert witness. When the trial court inquired
about the substance of Turner’s testimony, the State said that it initially intended to call
Turner “in our case in chief to discuss her involvement in the forensic [interview].” The
State added that because it now “anticipated [the defense] getting into [P.B.’s] allegedly
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prior inconsistent statement [in which P.B. denied that the Defendant touched his penis in
the forensic interview,]” it wanted to respond by qualifying Turner “as an expert in forensic
interviewing of . . . sexual assault victims [who] are children” and then questioning Turner
about P.B.’s forensic interview. When the trial court inquired about the defense’s
understanding of the law regarding the admissibility of forensic interviews, defense
counsel replied, “It’s my understanding that [the forensic interview] can possibly be used
to impeach [P.B.] at this point, which we’ve used it to do so, but otherwise it would have
been hearsay that I couldn’t have gotten in and that’s looking at it from a defense standpoint
and [the State is] almost in my position.” At that point, the State asserted that it was not
planning to play “any portion of the forensic interview unless [it went] with the position
that [it] held earlier of the mother telling [P.B.] to stop talking about the incident, so only
that portion [of the forensic interview].” The trial court expressed its concern that the State
would ask Turner to evaluate P.B.’s interview, and the State assured the court that it would
not be asking Turner about whether or not P.B. told the truth during the forensic interview
and would only be asking Turner about her experience and training on body language,
about whether P.B. was going to disclose anything, regardless of its truthfulness, and about
whether P.B. was reluctant to speak with her because of parental influence, which was what
P.B. admitted during the forensic interview. The State said it would also ask Turner about
whether there were “situational factors,” like having a twenty-day delay between the
incident and the forensic interview, that made “it more common for a child to recant or
partially disclose[.]” Defense counsel asserted that she definitely wanted “to look at what
would qualify [Turner] as an expert” and that she “would object to the entry of this forensic
[interview] for those purposes.”
The following day in a hearing outside the presence of the jury just prior to trial
proceeding, the State reiterated its desire to have Sydni Turner testify as an expert, stating:
The defense has opened the door to put [Sydni Turner] on in this
capacity and specifically they have elicited a prior inconsistent statement,
which was said during the context of a forensic interview. They did that
through the witness, Dennis Mitchell. They are going to argue that [P.B.’s]
statement [during the forensic interview denying that the Defendant touched
his penis] was actually the correct statement. We need the forensic
interviewer[, Sydni Turner,] to educate the jury on . . . how to evaluate and
assess statements made during a forensic interview totally based [o]n how
the forensic interviews are conducted, the line of questioning that is
presented, how that’s different and the possible outcomes of the forensic
interviews, what each one of those are and possible risk factors that can
contribute to different possible outcomes.
I’m not going to ask her anything about this specific interview.
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The defense immediately responded that the requirements of Code section 24-7-123, which
governs the admissibility of forensic interviews, had not been met because “the child
alleged no sexual contact” during the forensic interview. At this, the State again insisted
it had no intention of introducing the recording of the forensic interview. Instead, it wanted
Sydni Turner to provide expert testimony about “how these interviews are conducted, why
they’re conducted, the qualifications and trainings to be a forensic interviewer, the ages of
[the] children interviewed, the difference in limitations of the forensic interviewers and
what they can ask versus what I can ask and what law enforcement can ask, the possible
scenarios, which can include a full disclosure, a partial disclosure, a non-disclosure, a
recantation and the factors that are risk factors for providing or producing such type of
disclosure . . . based on her training and experience.” In response, the defense argued:
I think that the State is seeking to . . . elicit expert testimony on
something that’s not in evidence and . . . this is not appropriate unless you’re
admitting the forensic interview into evidence. They can’t. I don’t think
they can under the statute that talks about whether or not it comes in, so I
don’t think that [Turner’s] testimony is appropriate without the forensic
interview being admitted into evidence and I think that takes some of the fact
finding power away from the jury.
The defense added, “[The State’s prosecutors do not] want to admit the forensic interview,
but they want to admit expert testimony surrounding the forensic interview. . . . All that is
entirely prejudicial to us. We’re asking that you rule against it.”
The trial court then stated, “If the forensic interview is not admitted, then the only
thing the jury has to go on is the live testimony and the only reason for [Syndi Turner] to
testify would be to help the jury evaluate the live testimony.” The State agreed that
Turner’s testimony would “help the jury evaluate the [prior] inconsistent statement [made
by P.B.] which was a disclosure in a forensic interview[.]” When the defense asserted that
the State’s authority in support of Turner’s expert testimony, which was an out-of-state law
journal article, was limited to situations in which the expert testified when the forensic
interview was also admitted, the State argued:
I think if you look at the situation[, the defense] has opened the door to this
forensic interview. If [the defense] wants the interview fully admitted then
as a matter of completeness, Your Honor, we should put that in regardless of
the statute. If [the defense] is taking [P.B.’s] statement [during the forensic
interview denying that the Defendant touched his penis] out of context[, then]
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for completeness [the State] should be able to play the entire [forensic
interview] video and then the forensic interviewer can talk as to what she
observed that day and as to her expertise in risk factors. I would never ask
[Turner] to in any way talk about whether she believed [P.B.] or not or
whether the jury should believe him or not, but if she is trained on risk factors
that absolutely affect, such as a time delay, . . . that absolutely affect the
disclosure[.]”
The State added that Sydni Turner has been “recognized multiple times” in “[t]he field of
forensic interviewing of child sex abuse victims.”
The trial court then asked, “If [Turner]’s an expert in forensic interviews and we
don’t have a forensic interview[,] why should she testify?” The State replied that “you
have [P.B.]’s statement from the forensic interview [that was testified to by Detective
Mitchell] and if that is the case then we should be absolutely entitled as a matter of fairness
to put [P.B.’s] entire statement in[.]” When the trial court asked the defense why P.B.’s
entire forensic statement would not come in under the circumstances, defense counsel
replied:
I don’t think at this point [the State] has a way to get [the forensic
interview] in and I argue that with . . . some degree of sympathy to [the State].
I’ve had this situation exactly. We didn’t end up trying the case, but there
was a child who went to a forensic interview, made no disclosure, had made
disclosures other places but not at the forensic interview and when you read
the statute there was no way for me to get that in. I couldn’t play it. . . . [I]t
was very limiting.
The trial court responded that it wanted to “hear from the proffered expert.”
The State then conducted a proffer out of the presence of the jury in which Sydni
Turner testified that she had been a forensic interviewer in West Tennessee for the last
three-and-a-half years. She stated that she had conducted 1200 forensic interviews in cases
involving the sexual abuse and physical abuse of children as well as cases in which children
had drug exposure or had been witnesses to crimes. She explained that she had been
qualified as an expert in the field of forensic interviewing more than once. Turner said that
when she had previously been qualified as an expert, she had testified about “the structure
of forensic interviewing, children’s disclosures, child development” and the “reluctance of
children” to disclosure during forensic interviews. However, she stated that as an expert,
she never testified about any kind of medical or psychological symptoms that were
exhibited by the child. She stated that she had received specific training on external risk
factors that could affect what type of disclosure a child made during a forensic interview.
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When asked about the possible outcomes from a forensic interview, Turner stated that some
children come in and “make full disclosures about . . . everything that could have possibly
happened to them[,]” some children “make partial disclosures” where they “identify that
something happened and don’t give a lot of detail[,]” some children are “reluctant to talk
at all[,]” some children “make no disclosures[,]” and some children, who have previously
made a disclosure, recant while in the forensic interview. When asked if there were any
risk factors that might contribute to a recantation or partial disclosure during the forensic
interview, Turner stated:
There’s a bunch of different reasons as to why a child might recant. It might
be however many times they had to . . . talk about their story. It could be
how . . . adults or other people reacted to whatever happened. It could be
that they were told by someone what to say and what not to say. It could also
be that . . . they are more reserved. Don’t want to talk about certain things.
. . . I’ve had children that talk to me all day about football and we get to . . .
the other things about body parts and things like that, they don’t want to talk
about those things.
Turner explained that if a caregiver or a member of the public reacted negatively to
what happened to the child, then that could prevent the child from making a disclosure or
a full disclosure. However, she said that if a caregiver or a member of the public reacted
positively to what happened to the child, then this could result in a full disclosure because
it gives the child confidence. Turner also said that a delay between the initial disclosure
and the forensic interview could affect a child’s disclosure because a child “might feel like
I’ve already talked about it. I’m moving on. I’m not gonna bring it up again to this person
who is telling me [I] don’t have to say anything [I] don’t want to say[.]” Turner added that
if the child made a disclosure and things return to normal, and then the child is asked to
talk to the forensic interviewer about the incident, it may be “more difficult” for the child
to disclose during the forensic interview. Turner said that in the forensic interviews that
she has conducted, children have given full disclosures, partial disclosures, and partial
disclosures with partial recantations. She said that in interviews where the child recants,
there is sometimes a second interview, where the child says that their recantation or
inconsistent statement was not the truth, and the child goes back to the original disclosure
that he or she made. When Turner said that she has had experience with a child’s story
changing or evolving over time, the defense objected, stating, “I think this is outside her .
. . area of expertise[.]”
At the conclusion of the State’s proffer, the trial court held that it would allow the
State to “call [Turner] as an expert in the field of forensic interviewing but would not be
allowed to “lead her” or ask her “what happens when the child comes to court.” Defense
counsel objected to Turner “being called for the record” because she did not think Turner’s
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testimony “was relevant.” The trial court stated that Turner’s testimony as an expert was
relevant because there had been testimony that the child’s disclosure during the forensic
interview “was different from his testimony in court.” The court said “the jury . . . ought
to have a right to see the forensic interview, but I certainly think they have a right to know
what a forensic interview is[,]” which was why it was allowing Sydni Turner to testify as
an expert. Defense counsel immediately argued that allowing Turner to testify without
admitting the forensic interview was “highly prejudicial[,]” “[m]isleading[,]” and
“confusing to the jury.” The trial court replied that while Turner’s testimony was
“worthless pretty much in terms of telling them anything about this testimony[,]” it felt that
Turner’s testimony was “helpful” in letting the jury “know what a forensic interview is.”
The defense then asserted that Turner’s proposed testimony improperly “bolster[ed] the
child’s statement” and was “inappropriate the way it’s being done.” The State denied that
Turner’s testimony bolstered the child’s statement and that “if anything[,]” Turner’s
testimony just “educate[d] the jury on how to assess testimony that has been presented to
them[.]” The trial court asserted that it was not allowing Turner to testify “to help the jury
evaluate this child’s testimony today” and instead was allowing Turner to testify so the
jury “will know what the circumstances were when [the child] made the other statement
[during the forensic interview.]” The defense also objected on the ground that the
limitations of Turner’s expertise prevented her from being qualified to testify about P.B.’s
story changing over time, and the State assured the defense that it would not ask Turner
about that topic. Then the trial court and defense counsel had the following exchange:
Trial Court: . . . I’m not sure I’d call [Turner] if I were the State, but
I’m not the State. I can think of lots of questions that I
would ask [Turner] if I were the defense attorney, but,
here again, why not let the jury see the interview.
Defense Counsel: I think evidentiary there are some issues there. If you
overrule me–
Trial Court: I’m not overruling you. I’m offering.
Defense Counsel: I think if [Turner] is going to testify then [admission of
the forensic interview] is the only way to do it.
The defense argued that Turner’s proffered testimony made it sound “like somebody
told the kid not to tell about this” but that the forensic interview recording showed that the
child’s statement of “My mom said not to tell” was “not even contemporaneous with the
discussion about what happened at the theater[.]” The defense also asserted that Turner’s
testimony “discounts a prior inconsistent statement that we were able to get in[,]” which
the defense claimed was “prejudicial.” The trial court said, “I note your objection,” and
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then asked, “Now, do you want the forensic interview in? Do you want to make that
decision after you’ve heard from her?” Defense counsel replied, “No. I think if you let
[Turner] in[,] you let the [forensic] interview in.” Defense counsel repeated, “I don’t want
[Turner] to come in,” and when the trial court stated that Turner would, in fact, be allowed
to testify, then defense counsel reiterated that “the only way to do it” would be to also
admit the forensic interview because otherwise it would be “far too confusing to a jury.”
The trial court agreed that the forensic interview would also be admitted if Turner testified,
and the State confirmed that it still wanted Turner to testify as an expert. The trial court
said the State would be allowed to have Turner testify as an expert and could ask her
questions about the different types of disclosures or non-disclosures that can happen in a
forensic interview and about the risk factors that can produce those types of disclosures.
When the trial court again sought confirmation that the defense wanted the forensic
interview admitted if Turner testified, defense counsel replied, “This is all over my
objection, but, yes. If she’s testifying I think the only way you do it is with the interview.”
The trial court then held that the State could ask Turner about her involvement with the
forensic interview, lay the foundation for the interview, play the recording of the forensic
interview in full, qualify Turner as an expert in the field of forensic interviewing, and then
ask Turner about the particulars of the interview.
At the hearing on the motion for new trial, the Defendant argued that the trial court
“erred in qualifying Sydni Turner as an expert in forensic interviewing.” He argued that
while Turner’s “credentials showed that she had conducted many, many forensic
interviews,” she had “more or less only the basic training or qualifications required as a
forensic interviewer.” He also argued that although the trial court limited Turner’s
testimony to “the forensic interviewing process,” Turner actually testified at the end that
P.B. “was a reluctant child[,]” but she never gave “any basis or explanation for that
opinion.”
Our review of the record shows the trial court recognized that Sydni Turner’s
testimony was inadmissible to bolster P.B.’s credibility. Nevertheless, it appears that the
court allowed Turner to testify after determining that the defense “opened the door” to this
evidence by eliciting testimony from Detective Mitchell about P.B.’s prior inconsistent
statement during the forensic interview. “‘[O]pening the door’ is an equitable principle
that permits a party to respond to an act of another party by introducing otherwise
inadmissible evidence.” State v. Vance, 596 S.W.3d 229, 250 (Tenn. 2020). “[T]he
remedy sought after a party has opened the door should be both relevant and proportional,”
and “the otherwise inadmissible evidence sought to be introduced by the opposing party
should be limited to that necessary to correct a misleading advantage created by the
evidence that opened the door.” Id. at 250-51. Because the issue in this case concerns
expert testimony regarding the characteristics of child victims of sexual abuse, we are
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guided by authorities specifically addressing this narrow issue rather than the more general
principle of “opening the door” to this evidence.
In resolving the issue regarding the admissibility of Sydni Turner’s expert
testimony, we recognize that determinations regarding the qualifications, admissibility,
relevance, and competence of expert testimony fall within the broad discretion of the trial
court and will be overturned only for an abuse of that discretion. State v. Davidson, 509
S.W.3d 156, 208 (Tenn. 2016) (citing McDaniel v. CSX Transp., Inc., 955 S.W.2d 257,
263-64 (Tenn. 1997); State v. Scott, 275 S.W.3d 395, 404 (Tenn. 2009)). “A trial court
abuses its discretion when it applies incorrect legal standards, reaches an illogical
conclusion, bases its decision on a clearly erroneous assessment of the evidence, or
employs reasoning that causes an injustice to the complaining party.” Scott, 275 S.W.3d
at 404-05 (citing Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d
346, 358 (Tenn. 2008)).
Rule 702 of the Tennessee Rules of Evidence, which governs the admissibility of
expert testimony, provides: “If scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702. In
order to uphold the admission of expert testimony, the following four factors must appear
in the record:
(1) The witness must be an expert;
(2) The subject matter of the witness’ testimony must be proper;
(3) The subject matter must conform to a generally-accepted explanatory
theory; and
(4) The probative value of the witness’ testimony must outweigh its
prejudicial effect.
State v. Anderson, 880 S.W.2d 720, 728 (Tenn. Crim. App. Jan. 20, 1994).
Several published cases provide insight on whether the trial court abused its
discretion in allowing Turner to provide expert testimony in this case. In State v. Ballard,
855 S.W.2d at 561-63, the Tennessee Supreme Court held that the admission of an expert’s
testimony, which explained the symptoms of post-traumatic stress syndrome exhibited by
victims of child sexual abuse and concluded that the child victims in that case exhibited
the aforementioned symptoms, was reversible error. The expert asserted that there were
groups or “constellations” of symptoms upon which he relied to make a diagnosis and that
the behavior traits attributed to the child victims in that case, upon which he concluded that
the victims had been sexually abused, were “bed-wetting, clinging, fear (specifically fear
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of water and sharks for one child), irritability, nightmares, anxiety and discipline problems
at school.” Id. at 561. The court explained:
In the context of a criminal trial, expert scientific testimony solicits
the danger of undue prejudice or confusing the issues or misleading the jury
because of its aura of special reliability and trustworthiness. This “special
aura” of expert scientific testimony, especially testimony concerning
personality profiles of sexually abused children, may lead a jury to abandon
its responsibility as fact finder and adopt the judgment of the expert. Such
evidence carries strong potential to prejudice a defendant’s cause by
encouraging a jury to conclude that because the children have been identified
by an expert to exhibit behavior consistent with post-traumatic stress
syndrome, brought on by sexual abuse, then it is more likely that the
defendant committed the crime. Testimony that children exhibit symptoms
or characteristics of post-traumatic stress syndrome should not suffice to
confirm the fact of sexual abuse. The symptoms of the syndrome are “not
like a fingerprint in that it can clearly identify the perpetrator of a crime.”
Expert testimony of this type invades the province of the jury to decide on
the creditability of witnesses.
Id. at 561-62 (citations omitted). Ultimately, the court held that “because no consensus
exists on the reliability of a psychological profile to determine abuse, expert testimony
describing the behavior of an allegedly sexually abused child is not reliable enough to
‘substantially assist’ a jury in an inquiry of whether the crime of child sexual abuse has
taken place.” Id. at 562 (citing Tenn. R. Evid. 702).
A few years later, in State v. Anderson, 880 S.W.2d at 730, the Tennessee Court of
Criminal Appeals held that the admission of expert testimony from a licensed clinical social
worker regarding characteristics, specifically recantation, believed to be typical among
child victims of sexual abuse was reversible error. The expert, Bonnie Beneke, testified in
rebuttal that while sometimes child victims disclose abuse but then recant because the
abuse never occurred, there was also a common “predictable phenomenon” in which the
child victim discloses the abuse, recants when the child does not get the response that they
hoped, and then reaffirms that the abuse occurred. Id. at 724. She also stated that in cases
where the abuse never occurred, the child victim was “absolutely not” likely to recant and
then reaffirm that the abuse actually occurred. Id. at 725-26. The court evaluated the
evidence presented before determining that the only value of this expert’s testimony was
to accredit the trial testimony of the victim:
Here, the [S]tate’s case rests entirely upon the credibility of the child
victim, an alert, intelligent eight year old with a good command of our
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language. During direct examination, however, the victim admitted that he
had told several of his relatives that he had made up the story before
reasserting that his denials were untruthful. Ms. Beneke did not examine the
child but testified that children who are sexually abused often recant their
allegations. Ms. Beneke described recantation as “very common” and “a
predictable phenomena” when children have been sexually abused. Finally,
she asserted that child victims making false allegations of sexual abuse were
“absolutely not” likely to reaffirm their initial claim after a recantation. The
only possible value of these comments, in the context of the trial, was to
accredit the testimony of the victim. The opinion of the expert fit to
perfection the theory of the state.
Id. at 730. The court concluded that “despite the expert’s acknowledgment that a
recantation can take place because the original allegation of abuse was false and despite
the trial court’s contemporaneous instruction to the jury that the evidence was only ‘to
inform the jury of this [recantation] phenomenon,’ we must find that the overall prejudicial
effect outweighed the probative value of the testimony.” Id. (alternation in original). It
noted that “if the [expert] testimony were not introduced by the state as a means of
bolstering the child victim’s testimony, it would have had no probative value at all.” Id.(citing D. Paine, Tennessee Law of Evidence, § 220 (1974)).
Still later in State v. Bolin, 922 S.W.2d at 873-75, the Tennessee Supreme Court
held that while it was error for the trial court to admit a social worker’s testimony that
included the general statement that young victims of repeated sexual abuse often have
trouble remembering when specific events of abuse, such error was harmless because it did
not affect the judgment. In concluding that the trial court’s error was not prejudicial to the
defendant, the court stated:
We find . . . that the defendant construes the social worker’s testimony
too broadly. The testimony essentially consists of an explanation of a narrow
issue—why K.N. could not assign reasonably specific time or dates to any of
the alleged events of sexual abuse. Therefore, the testimony does not, unlike
the testimony in Ballard, purport to completely vouch for the overall
credibility of the victim, and thus it cannot be said to have “explained away”
the inconsistencies and recantations—the heart of the defense theory. Hence,
the damaging effect of the testimony is minimal.
Moreover, the likelihood that the error could have affected the
judgment is slight in view of the entire record. While there was no conclusive
medical evidence that K.N. had been abused, neither did the medical
evidence rule out the possibility of abuse. K.N. related episodes of sexual
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abuse to three different parties—the teacher, the social worker, and Dr.
Colburn—over a period of several weeks or months. Furthermore, her older
brother witnessed improper sexual contact occurring between the defendant
and K.N. Aside from the recantation—for which a reasonable explanation
was offered—the only possible inconsistencies in K.N.’s stories that we can
glean from the record are that she did not mention any oral sex during the
first interviews, but revealed this information at a later time; and that she told
Dr. Colburn that she had not been abused when in fact she had possibly been
abused some years ago by an eleven year old boy. In summation, the
evidence of the defendant’s guilt is strong; this is not a case where the only
evidence of the defendant’s guilt is the unsubstantiated testimony of the
alleged victim.
Id. at 874-75 (footnote omitted).
The Defendant asserts that Turner’s testimony only served to bolster the credibility
of P.B. and that if it was not offered for this purpose, then it would be “plainly irrelevant.”
He cites to Turner’s testimony that the three-week delay between the alleged incident and
the forensic interview was “not the best practice,” that delays like this might affect a child’s
willingness to talk about the abuse allegations, and that P.B.’s statement was a “reluctant
disclosure.” He also references the fact that Turner’s testimony described the various
reasons why a child might recant an earlier disclosure.
Here, Turner provided expert testimony regarding the characteristics, including
partial disclosures and recantation, that are common among child victims of sexual abuse.
The record shows that the primary purpose of Sydni Turner’s testimony was to accredit
P.B.’s trial testimony, that the Defendant actually touched his penis, over the P.B.’s
statement during the forensic interview, that the Defendant asked to touch but never
actually touched his penis. Because Turner’s testimony was closely related to testimony
concerning child sexual abuse syndrome that was expressly prohibited in Ballard, we
conclude that admission of Turner’s expert testimony was error. See Bolin, 922 S.W.2d at
874.
However, we must next consider whether the admission of Turner’s expert
testimony was harmless. The Defendant bears the burden of establishing that the
“admission of this evidence more probably than not affected the verdict or resulted in
prejudice to the judicial process.” State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008);
see Tenn. R. App. P. 36(b) (“A final judgment from which relief is available and otherwise
appropriate shall not be set aside unless, considering the whole record, error involving a
substantial right more probably than not affected the judgment or would result in prejudice
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to the judicial process.”). The Defendant argues that Turner’s testimony was not harmless
because it bolstered P.B.’s testimony at trial concerning the details of the incident.
Unlike Anderson, this is not a case where the testimony of an alleged victim is the
only evidence of the Defendant’s guilt. The proof at trial established that P.B. told his
mother and Officer Whitney and testified at trial that the Defendant touched his penis in
the theater bathroom. The only inconsistent disclosure made in the forensic interview was
that P.B. omitted any mention of the Defendant touching his penis, although P.B. did state
that the Defendant asked if he could touch P.B.’s penis. Here, the Defendant was charged
with and convicted of attempted aggravated sexual battery, which does not require a
completed offense. The jury heard Detective Mitchell’s testimony about P.B.’s prior
inconsistent statement and then saw the recording of P.B.’s forensic interview in its
entirety. The jury also saw the recording of the Defendant’s statement to police just four
days after the incident, wherein the Defendant initially claimed he was on vacation in New
Jersey the night of the incident before finally admitting that he had some sort of interaction
with P.B. in the bathroom at the theater on July 1, 2016. The jury also watched the theater’s
surveillance video, which showed the Defendant pacing back and forth while talking on
his cell phone before hurriedly leaving the theater with the Granims children immediately
after P.B. reported the incident and before the movie the Defendant and the Granims
children had concluded. This surveillance video also depicted the Defendant wearing
sunglasses inside the theater’s lobby as he went back to gather the Granims children so
they could leave the theater that night. Both Sherry and Mark Crooks testified that the
Defendant looked “concerned” before he gathered the Granims children and quickly left
the theater. Therefore, the evidence of the Defendant’s guilt, which consisted of both direct
and circumstantial proof, was substantial. This is simply not a case where the only
evidence of the Defendant’s guilt was “the unsubstantiated testimony of the alleged
victim.” Bolin, 922 S.W.2d at 875 (footnote omitted). While the trial court’s admission
of Sydni Turner’s expert testimony was error, we conclude that this error was harmless
because the Defendant has failed to show that admission of this evidence more probably
that not affected the verdict or resulted in prejudice to the judicial process. Accordingly,
the Defendant is not entitled to relief on this issue.
II. Admission of Forensic Interview as Substantive Evidence. The Defendant
also argues that the trial court abused its discretion in admitting P.B.’s forensic interview
as substantive evidence. First, he claims that the trial court failed to comply with the
procedural requirements of Code section 24-7-123, which governs the admissibility of
forensic interviews. Second, he asserts that the State’s proferred theory of admissibility,
namely a prior inconsistent statement, fails because none of the requirements of Tennessee
Rules of Evidence 613 and 803(26) were satisfied. Third, he contends “to the extent that
some of the forensic interview involved prior consistent statements of P.B., such hearsay
was still inadmissible because the trial court failed to make the necessary findings and
- 23 -
failed to give the required limiting instruction.” Accordingly, the Defendant maintains that
there was no legal basis to admit the forensic interview. In response, the State asserts that
the Defendant waived plenary review of this issue by failing to object to the forensic
interview’s admission at trial and that the Defendant is not entitled to plain error relief. We
conclude that the Defendant did not waive this issue. We also conclude that while the trial
court erred in admitting the forensic interview, the error is harmless because the forensic
interview supported the defense theory of the case and there was substantial evidence of
the Defendant’s guilt presented at trial.
Despite the State’s argument to the contrary, a close reading of the trial transcript
shows that the defense objected not only to Sydni Turner’s expert testimony but also
admission of the recording of the forensic interview. Accordingly, the Defendant has not
waived this issue, and we will address it on the merits.
At the hearing on the motion for new trial, the Defendant argued that the trial court
erred in admitting the forensic interview because the interview was “inadmissible hearsay”
and was not admissible pursuant to Code section 24-7-123.
Tennessee Code Annotated section 24-7-123 allows for the admissibility as
substantive evidence of a video recording of a forensic interview of a child under the age
of thirteen where the child describes any act of sexual contact performed with or on the
child by another if certain requirements are met. Tenn. Code Ann. § 24-7-123(a). The
interview “may be considered for its bearing on any matter to which it is relevant evidence
at the trial” of the defendant.” Id. Pursuant to this statute, the video recording “may” be
admitted if:
(1) The child testifies, under oath, that the offered video recording is a true
and correct recording of the events contained in the video recording and the
child is available for cross examination;
(2) The video recording is shown to the reasonable satisfaction of the court,
in a hearing conducted pretrial, to possess particularized guarantees of
trustworthiness. In determining whether a statement possesses particularized
guarantees of trustworthiness, the court shall consider the following factors:
(A) The mental and physical age and maturity of the child;
(B) Any apparent motive the child may have to falsify or distort the event,
including, but not limited to, bias or coercion;
(C) The timing of the child's statement;
(D) The nature and duration of the alleged abuse;
- 24 -
(E) Whether the child's young age makes it unlikely that the child fabricated
a statement that represents a graphic, detailed account beyond the child's
knowledge and experience;
(F) Whether the statement is spontaneous or directly responsive to questions;
(G) Whether the manner in which the interview was conducted was reliable,
including, but not limited to, the absence of any leading questions;
(H) Whether extrinsic evidence exists to show the defendant's opportunity to
commit the act complained of in the child's statement;
(I) The relationship of the child to the offender;
(J) Whether the equipment that was used to make the video recording was
capable of making an accurate recording; and
(K) Any other factor deemed appropriate by the court;
(3) The interview was conducted by a forensic interviewer who met the
following qualifications at the time the video recording was made, as
determined by the court:
(A) Was employed by a child advocacy center that meets the requirements
of § 9-4-213(a) or (b); provided, however, that an interview shall not be
inadmissible solely because the interviewer is employed by a child advocacy
center that:
(i) Is not a nonprofit corporation, if the child advocacy center is accredited
by a nationally recognized accrediting agency; or
(ii) Employs an executive director who does not meet the criteria of § 9-4-
213(a)(2), if the executive director is supervised by a publicly elected
official;
(B) Had graduated from an accredited college or university with a bachelor's
degree in a field related to social service, education, criminal justice, nursing,
psychology or other similar profession;
(C) Had experience equivalent to three (3) years of fulltime professional
work in one (1) or a combination of the following areas:
(i) Child protective services;
(ii) Criminal justice;
(iii) Clinical evaluation;
(iv) Counseling; or
(v) Forensic interviewing or other comparable work with children;
(D) Had completed a minimum of forty (40) hours of forensic training in
interviewing traumatized children and fifteen (15) hours of continuing
education annually;
(E) Had completed a minimum of eight (8) hours of interviewing under the
supervision of a qualified forensic interviewer of children;
- 25 -
(F) Had knowledge of child development through coursework, professional
training or experience;
(G) Had no criminal history as determined through a criminal records
background check; and
(H) Had actively participated in peer review;
(4) The recording is both visual and oral and is recorded on film or videotape
or by other similar audiovisual means;
(5) The entire interview of the child was recorded on the video recording and
the video recording is unaltered and accurately reflects the interview of the
child; and
(6) Every voice heard on the video recording is properly identified as
determined by the court.
Id. § 24-7-123(b). The trial court must make specific findings of fact on the record
explaining its ruling regarding the admissibility of the forensic interview. Id. § 24-7-
123(d). In addition, the recording of the forensic interview shall not become a public record
in any legal proceeding, and the trial court shall order the recording to be sealed and
preserved at the conclusion of the trial. Id. § 24-7-123(e).
“Generally, the admissibility of evidence rests within the trial court’s sound
discretion, and the appellate court does not interfere with the exercise of that discretion
unless a clear abuse appears on the face of the record.” State v. Franklin, 308 S.W.3d 799,
809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)). A trial court
is found to have abused its discretion when it applies “an incorrect legal standard or reaches
a conclusion that is ‘illogical or unreasonable and causes an injustice to the party
complaining.’” Lewis, 235 S.W.3d at 141 (quoting State v. Ruiz, 204 S.W.3d 772, 778
(Tenn. 2006)).
First, the Defendant contends that the trial court failed to hold the required pretrial
hearing and failed to make any of the findings necessary to admit the forensic interview
under Code section 24-7-123. He argues not only that P.B. failed to testify that the forensic
interview was “true and correct” under Code section § 24-7-123(b)(1) but also that P.B.
failed to testify about the recording of his forensic interview at all. In addition, the
Defendant asserts that the trial court never held that the recording of the forensic interview
had “particularized guarantees of trustworthiness.” Tenn. Code Ann. § 24-7-123(b)(2).
Moreover, he contends that although Sydni Turner mentioned some of her qualifications
as a forensic interviewer, the trial court never determined that Turner met the requirements
of Code section 24-7-123(b)(3). Lastly, he argues that the trial court failed to “make
specific findings of fact, on the record, as to the basis for its ruling . . . .” Id. § 24-7-123(d).
- 26 -
We agree with the Defendant that the trial court never made the findings required by Code
sections 24-7-123(b)(1), (b)(2), (b)(3), and (d) that are required in order for a recording of
a forensic interview to be admissible as substantive evidence.
Second, the Defendant insists that forensic interview is inadmissible as a prior
inconsistent statement because the trial court failed to make the necessary findings for it to
be admitted as such. The Defendant asserts that the State failed to call P.B. to give him an
opportunity to explain or deny the prior statement. He also asserts that the trial court failed
to make a finding that the prior statement “was made under circumstances indicating
trustworthiness.” Tennessee Rule of Evidence 613(b) provides that “[e]xtrinsic evidence
of a prior inconsistent statement by a witness is not admissible unless and until the witness
is afforded an opportunity to explain or deny the same and the opposite party is afforded
an opportunity to interrogate the witness thereon, or the interests of justice otherwise
require.” Tenn. R. Evid. 613(b). When a witness testifies inconsistently with a previous
statement, that witness’s testimony may be impeached with the prior inconsistent
statement. Id. However, extrinsic evidence of a prior inconsistent statement is
inadmissible unless the witness denies making the statement or equivocates about making
it. State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998). In order to be admissible as
substantive evidence under Tennessee Rule of Evidence 803(26), the statement must first
be admissible as a prior inconsistent statement under Rule 613(b). Tenn. R. Evid. 803(26).
However, the trial transcript in this case shows that P.B. was never afforded an opportunity
to explain or deny the statement he gave during the forensic interview. Accordingly,
because the recording of the forensic interview did not qualify for admission under Rule
613(b), it was also not admissible as substantive evidence under Rule 803(26).3
Third, the Defendant maintains that the recording of the forensic interview was also
not admissible as a prior consistent statement. He claims “the trial court failed to make
any findings suggesting that P.B.’s credibility was attacked in such a manner as to open
the door for the admission of a prior consistent statement” and that even if it had, the court
3
At the conclusion of all the proof, the trial court provided the following instruction, in pertinent
part, that is consistent with the pattern jury instruction 42.04(b):
Another factor for you to consider in evaluating a witness’ testimony is whether the witness
has made material statements at some point before he or she testified that are different from
his or her testimony at trial. In that regard, however, proof of any prior different statement
may be considered by you only for the purpose of determining if the witness is telling the
truth at trial. The contents of the prior inconsistent statement are not to be considered as
proof in the trial.
See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.–Crim. 42.04(b). This instruction seems to indicate that the trial
court intended the recording of the forensic interview to be considered by the jury for impeachment
purposes rather than as substantive evidence.
- 27 -
“erred by failing to give a limiting instruction explaining that the prior statement was only
to be considered for a limited purpose.” While prior consistent statements of a witness
generally are not admissible to bolster the witness’s credibility, “prior consistent statements
may be admissible . . . to rehabilitate a witness when insinuations of recent fabrication have
been made, or when deliberate falsehood has been implied.” State v. Benton, 759 S.W.2d
427, 433 (Tenn. Crim. App. 1988). Because the record shows that the forensic interview
was not admitted for the purpose of rehabilitating P.B., we agree that the forensic interview
was not admissible on this basis.
If anything, the admission of the forensic interview, which supported the defense’s
theory that the Defendant never touched P.B.’s intimate parts, was part of a brokered deal
by the trial court in response to the State’s request to have Sydni Turner provide expert
testimony. However, because there does not appear to be any legal basis to admit the
forensic interview, we conclude that the trial court’s admission of it was error.
We must next consider whether the admission of the recording of the forensic
interview was harmless. As we previously noted, the Defendant must show that the
“admission of this evidence more probably than not affected the verdict or resulted in
prejudice to the judicial process.” Rodriguez, 254 S.W.3d at 372; see Tenn. R. App. P.
36(b). In making the determination regarding harmlessness, we recognize that the
admission of the forensic interview had the practical effect of emphasizing the defense
theory that P.B.’s trial testimony was not credible and that the prior inconsistent statement
made by P.B. during the forensic interview, namely that the Defendant never touched his
penis, was the truth. Therefore, we conclude that while the trial court’s admission of
forensic interview was error, this error was harmless because the Defendant has failed to
show that admission of this evidence more probably that not affected the verdict or resulted
in prejudice to the judicial process. Accordingly, the Defendant is also not entitled to relief
on this issue.
III. Flight Instruction. The Defendant argues that the trial court erred in giving
the instruction on flight because there was insufficient proof that he was “hiding out” or
evading detection. He claims that the only evidence of “hiding out” was presented by
Detective Mitchell, who testified that the Defendant did not own the house he was living
in and did not have any utilities in his name but also testified that the Defendant was located
the same day the investigation began and voluntarily agreed to be interviewed. The
Defendant insists that living in a home he did not own and not having any utility bills in
his name is not enough to show that he was “hiding out” and that “if it were sufficient,
nearly all renters with roommates would be subject to a flight instruction simply because
they returned home from the scene of an alleged incident.” In response, the State contends
that the Defendant waived plenary review on this issue by failing to make a
contemporaneous objection to the flight instruction on the record and that the Defendant is
- 28 -
not entitled to plain error relief. We conclude that although the Defendant is entitled to
plenary review, he is not entitled to relief because there was sufficient evidence to support
the flight instruction.
The record shows that in a hearing out of the presence of the jury after the close of
all evidence, the following exchange occurred:
Trial Court: What about instructions?
Defense Counsel: Instructions?
Trial Court: I am going to give the flight instruction.
State: Thank you.
At the time, defense counsel never raised a contemporaneous objection to the instruction.
Thereafter, the trial court gave the following instruction on flight:
The flight of a person accused of a crime is a circumstance which,
when considered with all the facts of the case, may justify an inference of
guilt. Flight is the voluntary withdrawal of oneself for the purpose of evading
arrest or prosecution for the crime charged. Whether the evidence presented
proves beyond a reasonable doubt that the defendant fled is a question for
your determination.
The law makes no precise distinction as to the manner or method of
flight; it may be open, or it may be a hurried or concealed departure, or it
may be a concealment within the jurisdiction. However, it takes both a
leaving the scene of the difficulty and a subsequent hiding out, evasion, or
concealment in the community, or a leaving of the community for parts
unknown, to constitute flight.
If flight is proved, the fact of flight alone does not allow you to find
that the defendant is guilty of the crime alleged. However, since flight by a
defendant may be caused by a consciousness of guilt, you may consider the
fact of flight, if flight is so proven, together with all of the other evidence
when you decide the guilt or innocence of the defendant. On the other hand,
an entirely innocent person may take flight and such flight may be explained
by proof offered, or by facts and circumstances of the case.
- 29 -
Whether there was flight by the defendant, the reasons for it, and the
weight to be given to it, are questions for you to determine.4
See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 42.18. This flight instruction has been
cited with approval by this court. See State v. Kendricks, 947 S.W.2d 875, 885-86 (Tenn.
Crim. App. 1996) (citing State v. Payton, 782 S.W.2d 490, 497-98 (Tenn. Crim. App.
1989); State v. Whittenmeir, 725 S.W.2d 686, 688 (Tenn. Crim. App. 1986)). The trial
court, after reading the complete written charge to the jury, asked if there were any requests
for additional instructions or corrections to the instructions, and both parties responded
negatively.
At the hearing on the motion for new trial, defense counsel made the following
arguments regarding the flight instruction:
Flight. That was taken up in the conference that morning before trial
that was not recorded and is not part of that record, although it does come up
later in a reference. I think that the Court refers to my objection and says
“I’m going to give this instruction anyway.” We argued against that
instruction that morning and the basis for our argument was that flight
requires both a . . . “[l]eaving the scene of the difficulty and a subsequent
hiding out, evasion or concealment in the community or a leaving of the
community for parts unknown to constitute flight.”
The State made an argument through questioning, I believe, of Dennis
Mitchell that [the Defendant] going to his house satisfied the second prong
of that requirement. There was some discussion of . . . the house not being
in [the Defendant’s] name and the utilities not being in [the Defendant’s]
name, but, basically, the proof showed that [the Defendant] was easily found
with some basic police investigation. They probably could have done it even
more easily by getting [the Defendant’s] bank information from his credit
card which they had, but the burden was not met regarding a subsequent
hiding out, evasion or concealment in the community or leaving the
community for parts unknown.
While the Defendant claims that defense counsel lodged a contemporaneous
objection to the proposed flight instruction off the record, the record shows only that a
discussion regarding the flight instruction may have occurred, not that the defense objected
to such an instruction. However, “[a]n erroneous or inaccurate jury charge, as opposed to
4
Although this flight instruction was not included in the trial transcript, it was included in the jury
charge in the technical record.
- 30 -
an incomplete jury charge, may be raised for the first time in a motion for a new trial and
is not waived by the failure to make a contemporaneous objection.” State v. Faulkner, 154
S.W.3d 48, 58 (Tenn. 2005).
Accordingly, we must next consider whether the Defendant waived this issue by
failing to include the transcript from any such discussion about the flight instruction in the
record on appeal. The appellant has a duty to prepare a record that conveys “a fair, accurate
and complete account of what transpired with respect to those issues that are the bases of
appeal.” Tenn. R. App. P. 24(b). “Where . . . the record is incomplete, and does not contain
a transcript of the proceedings relevant to an issue presented for review, or portions of the
record upon which a party relies, this Court is precluded from considering the issue.” State
v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1998) (citing State v. Groseclose, 615
S.W.2d 142, 147 (Tenn. 1981); State v. Jones, 623 S.W.2d 129, 131 (Tenn. Crim. App.
1981)). “In the absence of an adequate record on appeal, we must presume that the trial
court’s ruling was supported by the evidence.” State v. Bibbs, 806 S.W.2d 786, 790 (Tenn.
Crim. App. 1991) (citing Smith v. State, 584 S.W.2d 811, 812 (Tenn. Crim. App. 1979);
Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim. App. 1979)). Although the
Defendant risked waiving this issue by failing to include all parts of the record pertaining
to the flight instruction, including whatever transpired during the alleged off-the-record
conference, we will nevertheless review this issue on the merits.
A defendant in a criminal case has a constitutional right to a correct and complete
charge of the law, so that each issue of fact raised by the proof will be submitted to the jury
on proper instructions. State v. Dorantes, 331 S.W.3d 370, 390 (Tenn. 2011) (citing
Faulkner, 154 S.W.3d at 58; State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001); State v.
Garrison, 40 S.W.3d 426, 432 (Tenn. 2000)). The trial court “must instruct the jury on
those principles closely and openly connected with the facts before the court, and which
are necessary for the jury’s understanding of the case.” State v. Elder, 982 S.W.2d 871,
876 (Tenn. Crim. App. 1998). Because challenges to jury instructions present mixed
questions of law and fact, we review challenged instructions de novo without a
presumption of correctness. State v. Smith, 492 S.W.3d 224, 245 (Tenn. 2016).
“In order for a trial court to charge the jury on flight as an inference of guilt, there
must be sufficient evidence to support such instruction.” State v. Berry, 141 S.W.3d 549,
588 (Tenn. 2004). Sufficient evidence supporting a flight instruction exists where there is
evidence of “both a leaving the scene of the difficulty and a subsequent hiding out, evasion,
or concealment in the community, or a leaving of the community for parts unknown.” State
v. Burns, 979 S.W.2d 276, 289-90 (Tenn. 1998) (citation and internal quotation marks
omitted). The State may satisfy the subsequent hiding out, evasion, or concealment
requirement by presenting proof from which a jury might infer that the defendant
committed such acts. Rogers v. State, 455 S.W.2d 182, 186-87 (Tenn. Crim. App. 1970)).
- 31 -
A defendant’s brief evasion of authorities is sufficient to support the giving of an
instruction on flight. Payton, 782 S.W.2d at 498. “Evidence of flight to avoid arrest may
be rebutted by a credible explanation of some motive other than guilt, but the conclusion
to be drawn from such evidence is for the jury upon proper instructions from the trial
court.” Hall v. State, 584 S.W.2d 819, 821 (Tenn. Crim. App. 1979).
We conclude that there was sufficient evidence presented at trial to support the jury
instruction on flight. The proof showed that the Defendant quickly left the crime scene,
evaded police, and concealed himself for approximately four days until the police found
him. Mark Crooks testified that on July 1, 2016, he saw the Defendant reenter the theater,
collect the children with him, and leave “before any police arrived.” Sherry Crooks
testified that just after P.B. reported the offense, the Defendant, along with the children he
had brought, left before the movie they were watching ended, which she thought was odd.
She also said the Defendant appeared “concerned” and “in a hurry” as he left the theater.
The theater’s surveillance video recording shows the Defendant leaving within three
minutes of the crime being reported to the theater owners and shows the Defendant wearing
sunglasses inside the theater as he gathered the Granims children before leaving. Detective
Mitchell testified that the Defendant lived in a house he did not own and did not have any
utilities in his name. Both Detective Mitchell and Detective Blurton testified that on July
5, 2016, they located the Defendant’s vehicle at a home on Shepard Street using his driver’s
license and license plate information. The detectives found the Defendant at that home and
brought him to the police station for an interview.
We conclude that the defendant’s actions in fleeing the crime scene, evading police,
and concealing himself for approximately four days are sufficient evidence to support the
trial court’s decision to provide the instruction on flight. See State v. Smith, 893 S.W.2d
908, 918 (Tenn. 1994) (concluding there was circumstantial evidence of an immediate
flight because the proof raised a reasonable inference that the defendant had seen the
flashing lights of a police car that was responding to another call nearby, left the scene, and
concealed himself in the community); State v. Markist Kantrell Cole, No. W2019-00079-
CCA-R3-CD, 2020 WL 1547845, at *12 (Tenn. Crim. App. Apr. 1, 2020) (concluding that
the trial court properly instructed on flight when the evidence showed that the Defendant
left the scene, disposed of the murder weapon, and remained concealed for two days before
turning himself into the authorities). The specific instruction given in this case stated that
“an entirely innocent person may take flight” and that “[w]hether there was flight by the
defendant, the reasons for it, and the weight to be given to it, are questions for you to
determine.” See Smith, 893 S.W.2d at 918; State v. Richardson, 995 S.W.2d 119, 129
(Tenn. Crim. App. Aug. 13, 1998). This instruction allowed the jury to infer guilt from
flight but also allowed the jury to hear the Defendant’s explanation for his actions and
determine that he was innocent. See Kendricks, 947 S.W.2d at 886. Although the defense
theory at trial was that the Defendant left the theater early because he was ill, the jury
- 32 -
clearly rejected this theory and inferred the Defendant’s guilt upon considering the
Defendant’s abrupt departure from the theater along with the aforementioned facts and
circumstances in this case. Because there was sufficient evidence that the Defendant left
the scene, evaded the police, and concealed himself in the community, the trial court
properly instructed the jury on flight, and the Defendant is not entitled to relief.
IV. Prosecutorial Misconduct During Closing Argument. The Defendant
contends that the State made two improper comments during its closing argument. He
asserts that the State’s first comment constitutes a non-structural constitutional error that
requires reversal because it violated his constitutional right to remain silent under the test
in State v. Jackson, 444 S.W.3d 554 (Tenn. 2014). He claims the State’s second comment,
wherein the prosecutor improperly used the position and experience of the District
Attorney’s office to challenge the Defendant’s credibility by stating that sexual offenders
do not generally admit their guilt, does not implicate a constitutional right but nevertheless
requires reversal. The Defendant additionally argues that these errors, taken individually
or together, require reversal. In response, the State contends that the Defendant waived
review of his claim that the State improperly commented on his right to remain silent. The
State also argues the Defendant failed to show that the State’s second comment was so
impermissibly prejudicial that a new trial is appropriate. We conclude that the Defendant
is not entitled to relief regarding either of these comments.
During the State’s initial closing argument, the prosecutor played a portion of the
theater’s surveillance video that had been entered into evidence. The prosecutor then made
the first statement challenged by the Defendant:
I’m going to pause [the surveillance video] right here. It’s a little hard
to see sometimes. You saw this in our case in chief, this video, and I want
you to know—of course, you know the times are off and a day forward, but
given all that, look especially at how long it was between events. This
happened. This is where the mom comes out and initially waves to Ms.
Sherry [Crooks] and tells her to come over, they have something to tell her.
At that point it is 6:56:19 according to this video. I’m just going to go with
that for purposes of what we’re doing. All right. Watch there. They’re still
talking to him and it’s 6:56. It’s 6:56:53. They’re still giving that statement
and they’re still alerting them to what happened about [the Defendant]
touching [P.B.’s] penis in the bathroom. If you notice there, [the
Defendant]’s covering his face. I’m sure you noticed that. 6:57:15. At this
point while this was going on it was presented to you that potentially [the
Defendant] went back into the theatre. I wonder if he went really back into
that theatre. You’ll see why. Okay. So [P.B. and his mother] leave. Go
back into the theatre. You saw that. It’s 6:58:32 when that conversation
- 33 -
ended. Right there. 6:58:54. I said 6:58:32 [when the conversation between
P.B. and his mother and the Crooks ended]. Note that. That’s how quick
[the Defendant] was to come out from the time after they had made this
report. We don’t know if [the Defendant] was standing there listening. We
don’t know if he was in the theatre. Nobody can tell you that. Nobody did
that here today. Only he knows that.5 He comes out and talks on the phone
and walks around and, in my opinion, looking at it, to me he’s nervous. He’s
pacing. 6:59:36 P.M. he’s still outside on the phone. 7 o’clock. Ms. Sherry
[Crooks] and Mr. Mark [Crooks] go out to go call the police. Y’all remember
that. They just left. I wonder if he knew what they were going to do.
7:00:37. 7 o’clock and 39 seconds[.] Notice [the Defendant’s] face when he
comes back in. It’s not bright in there. I wonder why he was covering that
face. He didn’t want anybody to see. He didn’t want them to see him. He
didn’t want them to see him in the red shirt and the black shorts. Maybe he
didn’t want to see himself after what he did. 7:01:01. There he is. 7:01:16,
leaving, fleeing, knowing potentially that that has just been reported and what
he did was just told to the public and everybody knows and they’re going to
find out that it was him and so he leaves.
Later during this initial closing arguments, the prosecutor made the second
challenged statement:
You heard a limited amount of the Defendant’s own statement that the
gave to Officer Mitchell; limited for sure. You heard that he did admit that
he went to the movies. He puts himself there. He puts himself in the
bathroom. He puts himself in the bathroom with the boy. He puts himself
in the bathroom with the boy [while he is wearing] the red shirt. The only
thing [the Defendant] won’t admit to is what we convict him today. You
don’t just admit—my partner, General Scott, he tells me, “You don’t just
admit to sex crimes,” you know. [General Scott] thinks it’s easier to get an
admission out of a murder case than it is a sex crime.6 That’s just not
something you want anybody to know about. So what did he admit to? He
admitted to everything except what actually he did—what actually happened.
In his words there was some kind of altercation. Yeah, there was, but it
wasn’t the kind that he described.
5
The emphasized portion of the State’s remarks is specifically challenged by the Defendant.
6
Once again, the emphasized portion of the State’s comments is challenged by the Defendant.
- 34 -
After the State concluded its initial closing argument, defense counsel approached
the bench and objected to “statements made in closing arguments, for one, about the
credibility of the witnesses.” Defense counsel then stated, “Your Honor, we’re objecting
to the misstatement of evidence in that closing argument. One being that the Defendant
admitted that he approached [P.B.]. That was never introduced. When the State denied
making that statement, the parties and the trial court had the following exchange:
Defense Counsel: And the other thing is you can’t express [your] personal
belief or opinion as to the truth or a falsity or any
testimony or the guilt of the Defendant and then I think
she went outside [of] what she can do when she argued
that—she inflamed the jury and when she said—.
The State: Could we have a jury out? I can’t hear you.
Defense Counsel: I’m sorry. Maybe we should do that.
The State: Could we have a jury out?
Trial Court: No. Your objection is overruled.
During the Defendant’s closing argument, defense counsel directly addressed the
first challenged comment by asserting, “[The State] say[s the Defendant] is guilty, that he
must have done something wrong because he left the theatre early that night. Has anybody
ever left an event early? I know I have. . . .” Later, defense counsel argued, “[The
Defendant] left [the theater] because he wasn’t feeling well because a child played an
embarrassing trick on him in the bathroom.”
Thereafter, the trial court, as a part of its final charge to the jury, provided the
following instruction:
Nothing said or done by the lawyers who have tried this case is to be
considered by you as evidence of any fact. Statements, arguments, and
remarks of the lawyers are intended to help you in understanding the
evidence and applying the law, but they are not evidence. If any statements
were made that you believe are not supported by the evidence, you should
disregard them.
See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.–Crim. 1.07.
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At the motion for new trial hearing, defense counsel asserted that she “absolutely
objected” to the State’s comments during its closing argument. She argued that there was
“an improper statement regarding [the Defendant’s] choice not to testify.” She also
asserted that the prosecutor’s comment regarding sexual offenders generally not admitting
their guilt was “improper argument regarding the falsity of evidence” that was
“inflammatory.”
We note that while the record shows that defense counsel contemporaneously
objected to the State’s second statement regarding offenders reluctance to admit to sex
crimes, the defense failed to object to the first challenged statement that allegedly violated
his right to remain silent. In his motion for new trial, the Defendant raised the general
claim that the prosecutor made “improper arguments” during closing argument but never
identified the specific instances of improper prosecutorial argument. However, at the
hearing on the motion for new trial, the defense specifically identified the first and second
comments outlined above and argued that they were improper. In State v. Hawkins, 519
S.W.3d 1, 48 (Tenn. 2017), the Tennessee Supreme Court applied plenary review rather
than plain error review to two instances of allegedly improper prosecutorial argument that
were included in the motion for new trial, despite the fact that the defendant failed to lodge
a contemporaneous objection to these remarks at trial. See State v. Zackary James Earl
Ponder, No. M2018-00998-CCA-R3-CD, 2019 WL 3944008, at *11 (Tenn. Crim. App.
Aug. 21, 2019) (applying plenary review to the defendant’s claim of improper closing
argument where the defendant obtained a pretrial ruling precluding the State from
expressing his personal opinion about the defendant and included this claim in his motion
for new trial). We conclude that the Defendant is not entitled to relief under either plenary
or plain error review.
Closing arguments function “to sharpen and to clarify the issues that must be
resolved in a criminal case.” State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008) (citing
Herring v. New York, 422 U.S. 853, 862 (1975)). They also enable “the opposing lawyers
to present their theory of the case and to point out the strengths and weaknesses in the
evidence to the jury.” Id. (citing Christian v. State, 555 S.W.2d 863, 866 (Tenn. 1977)).
Because counsel in criminal cases “are expected to be zealous advocates,” they should be
afforded “great latitude in both the style and the substance of their arguments.” Id. at 130-
31. However, prosecutors “must not lose sight of their duty to seek justice impartially and
their obligation ‘to see to it that the defendant receives a fair trial.’” Hawkins, 519 S.W.3d
at 47-48 (quoting Banks, 271 S.W.3d at 131). “[P]rosecutors ‘may strike hard blows, [but
they are] not at liberty to strike foul ones.’” Banks, 271 S.W.3d at 131 (quoting Berger v.
United States, 295 U.S. 78, 88 (1935)). “‘[I]mproper suggestions, insinuations, and,
especially, assertions of personal knowledge are apt to carry much weight against the
accused when they should properly carry none.’” State v. Sexton, 368 S.W.3d 371, 419
(Tenn. 2012) (quoting Berger, 295 U.S. at 88). Consequently, “a prosecutor’s closing
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argument must be temperate, must be based on the evidence introduced at trial, and must
be pertinent to the issues in the case.” Banks, 271 S.W.3d at 131 (citing State v.
Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999); Russell v. State, 532 S.W.2d 268, 271
(Tenn. 1976)). “[P]rosecutors, no less than defense counsel, may use colorful and forceful
language in their closing arguments, as long as they do not stray from the evidence and the
reasonable inferences to be drawn from the evidence, or make derogatory remarks or
appeal to the jurors’ prejudices[.]” Id. (citations omitted). Prosecutors “must refrain from
argument designed to inflame the jury[.]” State v. Hall, 976 S.W.2d 121, 158 (Tenn. 1998).
In considering these two comments, we recognize that “[a] criminal conviction should not
be lightly overturned solely on the basis of the prosecutor’s closing argument.” Banks, 271
S.W.3d at 131).
First, the Defendant argues that the prosecutor’s first challenged remark constituted
a non-structural constitutional error because it violated his right to remain silent under the
test in Jackson, 444 S.W.3d at 588, 592. The Defendant asserts that this remark served to
emphasize the fact that he did not testify at trial.
The United States and Tennessee constitutions protect a defendant’s right to remain
silent. U.S. Const. amend. V; Tenn. Const. art. I, § 9. “While closing argument is a
valuable privilege that should not be unduly restricted, . . . comment upon a defendant’s
exercise of the state and federal constitutional right not to testify should be considered off
limits to any conscientious prosecutor.” Jackson, 444 S.W.3d at 590 (citations and internal
quotation marks omitted). Both direct and indirect comments on a defendant’s failure to
testify can violate the Fifth Amendment privilege. Id. at 587.
The Tennessee Supreme Court outlined “a two-part test for ascertaining whether a
prosecutor’s remarks amount to an improper comment on a defendant’s exercise of the
constitutional right to remain silent and not testify.” Id. at 587-88. Under this test, this
court must consider: “(1) whether the prosecutor’s manifest intent was to comment on the
defendant’s right not to testify; or (2) whether the prosecutor’s remark was of such a
character that the jury would necessarily have taken it to be a comment on the defendant’s
failure to testify.” Id. at 588. Claims of impermissible prosecutorial comment on a
defendant’s right not to testify are reviewed de novo. Id. A prosecutor’s comment on a
defendant’s right to remain silent is a non-structural constitutional error, and to avoid
reversal, the State has the burden of establishing that the error is harmless beyond a
reasonable doubt. Id. at 591. When determining whether the State has met its burden, this
court “should consider the nature and extensiveness of the prosecutor’s argument, the
curative instructions given, if any, and the strength of the evidence of guilt.” Id. (footnote
omitted).
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Initially, we note that “prosecutorial responses to defense arguments are clearly
permitted[.]” Id. at 587; State v. Sutton, 562 S.W.2d 820, 823-24 (Tenn. 1978) (“Where
the criminal defendant raises an issue in his defense, he cannot complain of references to
the issue by the prosecution, or argument on that issue, so long as the argument is fairly
warranted by the facts and circumstances of the case.”). Here, it does not appear that the
prosecutor’s manifest intent was to comment on the Defendant’s right not to testify when
he made the first comment. See Jackson, 444 S.W.3d at 588. In addition, based on the
transcript of closing arguments, the prosecutor’s comments and behavior in the
Defendant’s case were not nearly “as direct or animated as those of the prosecutor in
Jackson.” State v. Colvett, 481 S.W.3d 172, 208 (Tenn. Crim. App. 2014). The prosecutor
here never demanded that the Defendant explain himself or tell the truth about what
happened with P.B. See Jackson, 444 S.W.3d at 589.
Despite the Defendant’s claims to the contrary, we do not believe that the
prosecutor’s comment amounted to an improper comment on the Defendant’s exercise of
the constitutional right to remain silent. See id. at 587-88. Instead, it appears that these
comments were meant to emphasize the extremely short time period between P.B.’s report
of the incident to the theater owners and the Defendant’s abrupt departure from the theater,
which provided strong circumstantial evidence of the Defendant’s guilt. A prosecutor is
free to argue reasonable inferences from the evidence presented at trial. See State v.
Thomas, 818 S.W.2d 350, 364 (Tenn. Crim. App. 1991) (reiterating that “[m]ere argument
by the State that proof on a certain point is unrefuted or uncontradicted is not an improper
comment upon a defendant’s failure to testify” (citation and internal quotation marks
omitted)); United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996) (stating that a
prosecutor “must be given leeway to argue reasonable inferences from the evidence” and
“[w]here there is conflicting testimony, it may be reasonable to infer, and accordingly to
argue, that one of the two sides is lying”). Because it does not appear that the prosecutor’s
manifest intent was to comment on the Defendant’s right not to testify or that the jury
would necessarily have taken this brief remark to be a comment on the Defendant’s failure
to testify, we conclude that this comment was not error. However, even if this comment
was somehow improper, it was most certainly harmless beyond a reasonable doubt. When
considering the nature and extensiveness of the prosecutor’s argument, we note that this
remark, which was isolated, did not seem aimed at the Defendant’s exercise of his right to
remain silent and that the Defendant was able to respond to this particular remark during
its closing argument. While no curative instruction was given immediately after this
comment, the trial court did instruct the jury in its final charge that “[n]othing said or done
by the lawyers who have tried this case is to be considered by you as evidence of any fact.”
A jury is presumed to follow the instructions of the trial court. Banks, 271 S.W.3d at 137;
State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004); State v. Reid, 164 S.W.3d 286, 346
(Tenn. 2005). Finally, as we have stated several times, the evidence in this case, which
consisted of direct and circumstantial proof, was substantial. For these reasons, we
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likewise conclude that the Defendant is not entitled to plain error relief because
consideration of the error is not necessary to do substantial justice. See State v. Smith, 24
S.W.3d 274, 282 (Tenn. 2000).
Second, the Defendant contends that the prosecutor improperly used the position
and experience of the District Attorney’s office to challenge the Defendant’s credibility
when she remarked that sexual offenders do not generally admit their guilt. The standard
of review in determining whether counsel was allowed too much leeway during closing
argument is abuse of discretion. Hall, 976 S.W.2d at 167 (citing State v. Sutton, 562
S.W.2d at 823). The Defendant asserts that the State, by making the aforementioned
remarks during closing argument, violated the rule that a prosecutor shall not “express his
personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt
of the defendant.” State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003).
Here, the State essentially concedes that the prosecutor’s remark was improper but
argues that Defendant has failed to show that this comment was so impermissibly
prejudicial that a new trial is appropriate. “When evaluating an improper prosecutorial
argument that does not rise to the level of a constitutional violation, the test to be applied
is ‘whether the improper conduct could have affected the verdict to the prejudice of the
defendant.’” Jackson, 444 S.W.3d at 591 n.50 (quoting Harrington v. State, 385 S.W.2d
758, 759 (Tenn. 1965)). In making this determination, we should consider the following
five factors:
(1) the conduct complained of, viewed in light of the facts and circumstances
of the case; (2) the curative measures undertaken by the court and the
prosecutor; (3) the intent of the prosecutor in making the improper statement;
(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.
Id.; see Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).
We agree that the prosecutor’s second comment seems aimed at convincing the jury
that because individuals accused sex offenses are very unlikely to admit their crimes, the
Defendant in this case must be guilty. See State v. Charles L. Williams, No. M2005-00836-
CCA-R3-CD, 2006 WL 3431920, at *22 (Tenn. Crim. App. Nov. 29, 2006). Because it
appears that this comment was made to inflame the jury and to appeal to the jurors’
prejudices, we conclude that it was improper. Next, we must consider whether the
prosecutor’s comment prejudiced the Defendant by applying the aforementioned five
factors. Id.- 39 -
Regarding the conduct complained of, viewed in light of the facts and circumstances
of the case, we note that the prosecutor remarked that the Defendant corroborated every
single detail of the incident except the sexual abuse and then asserted that sexual offenders
do not generally admit their guilt in order to show that the Defendant was guilty of the
charge offense. As we previously recognized, it is improper for a prosecutor to “express
his personal belief or opinion as to the truth or falsity of any testimony or evidence or the
guilt of the defendant.” Goltz, 111 S.W.3d at 6. Second, as to the curative measures
undertaken by the court and the prosecutor, we note that while no curative measures were
utilized at the time of this statement, the defense never specifically requested a curative
instruction or other measures. However, the trial court’s final charge to the jury did include
an instruction that statements, arguments, and remarks of counsel are not evidence and that
if such statements were not supported by the evidence, then the jury should disregard them.
A jury is presumed to follow the instructions of the trial court. Banks, 271 S.W.3d at 137;
Robinson, 146 S.W.3d at 494; Reid, 164 S.W.3d at 346.
Third, while we are unsure of the prosecutor’s intent in making this remark, we
recognize that this comment was made during the prosecutor’s initial closing statement and
was probably not inadvertent. See Charles L. Williams, 2006 WL 3431920, at *23. Fourth,
regarding the cumulative effect of the improper conduct and any other errors in the record,
we note that while other errors were made in admitting Sydni Turner’s expert testimony
and the forensic interview, these errors were harmless, and when viewed along with this
isolated prosecutorial comment during closing, do not amount to cumulative error requiring
a reversal. Fifth, as to the relative strength or weakness of the case, we have repeatedly
recognized that the proof in this case was considerable. In light of the substantial proof of
the Defendant’s guilt, the isolated nature of this comment, and the trial court’s instruction
that arguments of counsel are not evidence, we conclude this error did not affect the verdict
to the prejudice of the defendant and was, therefore, harmless. Moreover, we conclude that
the Defendant is not entitled to plain error relief because this remark did not adversely
affect a substantial right of the Defendant and because consideration of the error is not
necessary to do substantial justice. See Smith, 24 S.W.3d at 282. Finally, we conclude
that the two challenged remarks, when viewed together, did not give rise to cumulative
error. Cf. Charles L. Williams, 2006 WL 3431920, at *30 (concluding that “the cumulative
effect of the errors in this case more probably than not affected the outcome of the trial,
resulted in prejudice to the judicial process, and deprived the Defendant of a meaningful
defense”). Accordingly, the Defendant is not entitled to relief.
V. Sufficiency of the Evidence. Lastly, the Defendant contends that the evidence
is insufficient to sustain his conviction for attempted aggravated sexual battery because his
conduct cannot be reasonably construed as being for the purpose of sexual arousal or
gratification. He asserts that under the governing standard of review, a touching or
attempted touching of P.B.’s intimate parts is not enough to sustain his conviction; instead,
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the State must also prove that he acted with sexual intent. The State counters that it
presented sufficient circumstantial evidence for a rational jury to have reasonably inferred
that the Defendant touched, or attempted to touch, P.B.’s penis for the purpose of sexual
arousal or gratification. We agree with the State.
“Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).
“Appellate courts evaluating the sufficiency of the convicting evidence must determine
‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court
evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn from that
evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318
S.W.3d 850, 857 (Tenn. 2010)).
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 691
(Tenn. 2005); Hall, 976 S.W.2d at 140. The standard of review for sufficiency of the
evidence “‘is the same whether the conviction is based upon direct or circumstantial
evidence.’” Dorantes, 331 S.W.3d at 379 (quoting Hanson, 279 S.W.3d at 275). The jury
as the trier of fact must evaluate the credibility of the witnesses, determine the weight given
to witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence, and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646,
662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court “neither
re-weighs the evidence nor substitutes its inferences for those drawn by the jury.” Wagner,
382 S.W.3d at 297 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).
As relevant in this case, a person commits criminal attempt who, acting with the
kind of culpability otherwise required for the offense, “[a]cts 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 the commission of the offense.” Tenn. Code Ann. § 39-12-
101(a)(3). “Conduct does not constitute a substantial step . . . unless the person’s entire
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course of action is corroborative of the intent to commit the offense.” Id. § 39-12-101(b).
“[T]he question of whether a defendant has taken a substantial step toward the commission
of a crime sufficient to support a conviction for criminal attempt is necessarily a heavily
fact-intensive inquiry determined by the specific circumstances shown in each individual
case[.]” Davis, 354 S.W.3d at 733. Completion of the attempted offense is not a defense
to prosecution for criminal attempt. Tenn. Code Ann. § 39-12-101(c); see State v. Thorpe,
463 S.W.3d 851, 863 (Tenn. 2015) (“[P]roof, even uncontroverted proof, that a defendant
completed a crime, in and of itself, does not shield a defendant from a conviction for
criminal attempt of the crime allegedly committed.”).
Aggravated sexual battery is “unlawful sexual contact with a victim by the
defendant” where “[t]he victim is less than thirteen (13) years of age.” Tenn. Code Ann. §
39-13-504(a)(4). “Sexual contact” is defined as “the intentional touching of the victim’s
. . . intimate parts . . . if that intentional touching can be reasonably construed as being for
the purpose of sexual arousal or gratification.” Id. § 39-13-501(6). “‘Intimate parts’
includes semen, vaginal fluid, the primary genital area, groin, inner thigh, buttock, or breast
of a human being.” Id. § 39-13-501(2).
We note that “the testimony of a victim, by itself, is sufficient to support a
conviction.” State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993) (citing State
v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981)). By its verdict, the jury
accredited P.B.’s testimony, and this court must not disregard the jury’s credibility finding
on appeal. See Campbell, 245 S.W.3d at 335; Byrge, 575 S.W.2d at 295. In reaching this
verdict, the jury also necessary determined that the Defendant took a substantial step
toward committing the aggravated sexual battery offense. The Defendant claims that the
State failed to present any proof, even circumstantial proof, outside of the touching of
P.B.’s penis to show that the Defendant acted for the purpose of sexual arousal or
gratification. However, “intent is almost always proven circumstantially.” State v. Hayes,
899 S.W.2d 175, 180 (Tenn. Crim. App. 1995). “[T]he location of the events, the state of
dress of the defendant and the victim, and how the physical contact occurred” can establish
a defendant’s intent. Id. P.B. testified that the Defendant blocked the doorway of the
bathroom, which prevented P.B. from escaping, and then touched and “squeezed” P.B.’s
penis. The aggravated sexual battery statute “does not require that the appellant become
sexually aroused or gratified by the sexual contact” and “merely requires touching that can
be ‘reasonably construed as being for the purpose of sexual arousal or gratification.’” State
v. Mahlon Johnson, No. W2011-01786-CCA-R3-CD, 2013 WL 501779, at *12 (Tenn.
Crim. App. Feb. 7, 2013) (quoting State v. Roy Chisenhall, No. M2003-00956-CCA-R3-
CD, 2004 WL 12177118, at *3 (Tenn. Crim. App. at Nashville, June 3, 2004)). “[J]urors
may use their common knowledge and experience in making reasonable inferences from
evidence.” State v. Meeks, 876 S.W.2d 121, 131 (Tenn. Crim. App.1993) (citing 23A
C.J.S. Criminal Law § 1380). Here, the jury could have reasonably determined that an
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adult man had no reason to touch or squeeze, or attempt to touch or squeeze, the penis of a
six-year-old child in a movie theater bathroom. Viewing the evidence in the light most
favorable to the State, we conclude that the proof is more than sufficient for a jury to
reasonably infer that the touching was for the purpose of sexual arousal or gratification.
Accordingly, the evidence is sufficient to sustain the conviction, and the Defendant is not
entitled to relief.
CONCLUSION
Based on the aforementioned authorities and analysis, we affirm the judgment of
the trial court.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
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