State of Tennessee v. David Scott Hall ( 2017 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 18, 2016 Session
STATE OF TENNESSEE v. DAVID SCOTT HALL
Appeal from the Criminal Court for Davidson County
No. 2010-D-3534 Monte Watkins, Judge
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No. M2015-02402-CCA-R3-CD – Filed May 2, 2017
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The Appellant, David Scott Hall, was convicted in the Davidson County Criminal Court
of attempted especially aggravated sexual exploitation of a minor, a Class C felony, and
sentenced to four years to be served as one year in confinement and the remainder on
supervised probation. On appeal, the Appellant contends that the evidence is insufficient
to support the conviction, that the trial court erred by allowing an expert witness to give
irrelevant and highly prejudicial testimony, that he is entitled to coram nobis relief, that
his right to a speedy trial was violated, that the trial court erred by allowing the State to
introduce evidence without showing a proper chain of custody, that the trial court erred
by allowing the State to play only a portion of a controlled telephone call to the
Appellant, that the trial court erred by allowing the victim to testify about habit, that the
trial court erred by allowing the State to introduce into evidence a letter supposedly
written by the Appellant, and that the trial court erred by allowing the State to make
improper closing arguments. Based upon the oral arguments, the record, and the parties’
briefs, we conclude that the evidence is sufficient to support the conviction, that the trial
court erred by allowing a witnesses to give irrelevant testimony but that the error was
harmless, that the Appellant is not entitled to coram nobis relief, and that his right to a
speedy trial was not violated. Finding no plain error as to the remaining issues, we affirm
the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.
Manuel B. Russ, Nashville, Tennessee, for the appellant, David Scott Hall.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Glenn R. Funk, District Attorney General; and Deborah Housel, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In December 2010, the Davidson County Grand Jury indicted the Appellant for
attempted especially aggravated sexual exploitation of a minor. At the February 2015
bench trial, the eighteen-year-old victim testified that in May 2010, she was thirteen years
old and lived in Nashville with her mother and sister, who was eighteen months younger
than the victim. A flood had damaged their house, so the Appellant lived with them for a
very brief time to help them paint and fix the garage. The victim said that the Appellant
was “our second cousin” and acknowledged that he was “close” to the family.
The victim testified that she and her sister had separate bedrooms and that a
bathroom was between their rooms. The Appellant slept upstairs in a loft, and he was not
allowed in the victim’s bedroom. However, he would come into her room occasionally to
tell her it was time for dinner, ask her a question, or show her something. A fish tank was
on a dresser in the victim’s room. The victim and her sister usually fed the fish, but
anyone who wanted to feed them could do so. The victim’s weekday routine before
school was to get out of bed, wake her sister, spend fifteen minutes in the shower, get
dressed, and eat breakfast. While the Appellant was living with them, the victim would
put on clothes immediately after her shower rather than walk from the bathroom to her
bedroom wearing only a towel. The victim’s bedroom was “not a very big room,” and
she would dress in an area between her dresser and her bed. The victim’s mother always
drove the victim and her sister to school.
The victim testified that May 18, 2010, was the last day of school before summer
vacation. That morning, she got out of bed, took a shower, and returned to her bedroom.
She then stated as follows:
I noticed on my bed some clothes had been ruffled. I didn’t
remember them being that way when I had left.
And then I looked over to where my folded clothes
were on my dresser and I went over there to get some
underwear. And when I had started looking through the
clothes I saw a red dot and two little bra cup things. And a
red dot. So I unveiled it and there was the camera.
The victim said that the red dot meant the camera was recording and that she recognized
the camera as belonging to the Appellant.
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The victim testified that she was surprised and picked up the camera, which no
longer appeared to be recording. She showed the camera to her sister, and they watched a
video on the camera. The video showed the victim entering her bedroom, “walking and
rifling,” and seeing the camera. The victim recognized the Appellant in the video. The
State asked how she recognized him, and she answered, “His shirt, mostly. But just the
frame of his figure. Like I could tell it was him.” The girls took the camera to their
mother and watched the video with her.
The victim testified that after the three of them watched the video, her mother had
a conversation with the Appellant. The victim was not present for the conversation. As
the girls and their mother were leaving for school that day, the Appellant was also
leaving. He asked if he could go into the victim’s bedroom to get his sunglasses case, but
he was not allowed to do so. He did not live with them after May 18.
On cross-examination, the victim testified that she had known the Appellant since
she was seven or eight years old. She acknowledged that it was “normal” for him to be at
her home and that her mother trusted him. The Appellant had a pair of sunglasses, but
the victim did not remember him leaving the sunglasses in her room on May 18. She
acknowledged, though, that he asked to get his sunglasses case from her bedroom before
he left that day. Defense counsel asked if one of the fish in the fish tank, a fish
nicknamed “Barrack Obama” by the Appellant, belonged to the Appellant. The victim
answered, “Maybe he did. I - that sounds a little familiar. I can’t specifically remember
it, but that - he might have, yeah. I don’t think it was his fish, though. I don’t think - I
can’t remember.” She said she also did not remember the Appellant ever feeding any of
the fish.
The victim testified that she, her sister, and the Appellant shared the same
bathroom. The Appellant loved to travel and take photographs, and his camera was with
him most of the time. The Appellant usually kept it in his pocket. The victim said that
the Appellant was like an uncle to her, that she loved him, and that he never hurt her or
made her feel uncomfortable.
On redirect examination, the victim testified that the Appellant usually would
come downstairs while she and her sister were getting ready for school and that he would
not have his camera with him. The victim did not see the Appellant’s sunglasses case in
her room on May 18.
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Fifteen-year-old A.M.1 testified that she was the victim’s sister and was eleven
years old in May 2010. The girls lived with their mother, and the Appellant stayed with
them “on and off” for about a month to help after the flood. Their mother had a rule
when a man was in the home that the girls had to be fully clothed when they came out of
the bathroom. On May 18, the victim woke A.M. and went to take a shower. While the
victim was in the shower, A.M. left her bedroom and saw the Appellant standing near the
victim’s bedroom and the bathroom. She said it was unusual for him to be there because
“he would just usually sit on the couch or [be] eating.” At some point, the victim brought
the Appellant’s camera to A.M. A.M. played a video on the camera, and the girls
watched the video. A.M. said that she recognized the victim and the Appellant in the
video and that she and the victim showed the video to their mother. On cross-
examination, A.M. testified that she did not remember giving the Appellant his cellular
telephone charger before she left for school on May 18.
E.M. testified that she was the mother of the victim and A.M. and that the
Appellant was her second cousin. On the morning of May 18, 2010, the girls came into
her bedroom and said they had found something. They were “quite excited” and “seemed
upset.” The girls and E.M. watched the video on the Appellant’s camera twice. E.M.
said that she tried “to keep it kind of calm because everybody was a little worked up” and
that she told the girls to get ready for school.
E.M. testified that she went upstairs and asked the Appellant if he had been
downstairs. The Appellant said he had been downstairs to the bathroom. She asked him
if he had been in the victim’s or A.M.’s bedroom, and he said no. E.M. told him that
something had happened and that she needed him to leave the home. The Appellant got
his belongings and went downstairs. E.M. said he had not been to her home since May
18.
E.M. testified that she dropped off the girls at school, took the camera to the police
department, and spoke with a detective. At some point, she made a controlled telephone
call to the Appellant in the presence of a female detective. The State played a portion of
the call for the trial court. During the call, E.M. told the Appellant that she found a
camera in the victim’s bedroom and that it contained a video recording of the victim.
E.M. asked how the camera got into the room and “set up” to record the victim. The
Appellant said that he did not remember making the video but that he remembered going
into the victim’s room on May 18 to get his sunglasses. He said that he may have “set
[the camera] down or something” but that he did not remember turning it on. E.M. told
the Appellant that he was also on the recording, and he said, “I probably went in there
and fed the fish. I was waiting to go to the bathroom.” The Appellant told E.M. that he
1
In order to protect the victim’s identity, we will refer to her sister and her mother by their initials.
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was “really embarrassed,” that he was sorry the camera was in the victim’s room, and
that he “wasn’t trying to do anything.” The Appellant repeatedly maintained that he did
not intend to record the victim.
On cross-examination, E.M. testified that the Appellant went on vacations with her
family, that he babysat her children, and that she never had a problem with him. When
E.M. asked the Appellant to leave on the morning of May 18, he did so. Before he left,
he told her that he was looking for his sunglasses. E.M. went into the victim’s bedroom,
but the Appellant’s sunglasses were not there. E.M. said that the Appellant may have
named one of the fish in the fish tank but that he was not allowed to go into the victim’s
bedroom to feed the fish.
Detective Michael Adkins of the Metropolitan Nashville Police Department
(MNPD) testified that he investigated this case and obtained a search warrant for the
Appellant’s camera. The warrant was executed, and a forensic examination of the
camera was conducted. Detective Adkins was present for part of the examination and
watched two videos from the camera’s memory card. He then obtained a search warrant
for the Appellant’s residence, which was executed on June 9, 2010. During the search,
officers seized computers and other devices. The Appellant agreed to speak with
Detective Adkins, so they talked in the detective’s van for about one hour.
On cross-examination, Detective Adkins acknowledged that he was searching the
Appellant’s residence for child pornography. He said his interview with the Appellant
“got a little heated” but denied yelling at the Appellant for the entire hour. He
acknowledged that he “hit the dashboard once or twice” and that he asked if the
Appellant got a “hard on” from looking at photographs of young children. He also
acknowledged that he did most of the talking and said that the Appellant “denied
everything.” Detective Adkins stated that he was trying to get the Appellant to admit the
truth but that the Appellant “never would.”
Detective Chad Gish of the MNPD testified as an expert in the forensic analysis of
electronic devices that he inspected the Appellant’s camera and removed the memory
card. Detective Gish found two videos on the card. One video was “active.” The other
video had been deleted, but Detective Gish was able to recover it. He said the deleted
video had been recorded before the active video and was of less duration than the active
video. Detective Gish acknowledged that he received other evidence in this case and that
he examined the evidence for child pornography. He did not find child pornography but
found pornography.
The State played the two videos from the memory card for the jury. The first
video, which was forty-two seconds in duration, showed a fish tank on the dresser and
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then the camera being placed on the dresser beside the fish tank and turned toward the
victim’s bed. The second video, which was seven minutes in duration, again showed the
fish tank, the camera being placed on the dresser, and the camera being turned toward the
victim’s bed. A person walked between the camera and the bed twice and left the room.
About four minutes later, the victim entered the room, turned on the light, and walked to
her bed. She was wearing a t-shirt and shorts, and her hair was wrapped in a towel. She
turned toward the dresser, immediately went to the camera, and picked it up. At that
point, the recording ended.
On cross-examination, Detective Gish testified that he also examined the
Appellant’s computer and cellular telephone. He reiterated that he did not find any child
pornography on those devices.
The Appellant testified that he was fifty-five years old and that the victim was his
third cousin. On the morning of May 18, 2010, he awoke and went downstairs to use the
bathroom. He said he “possibly” had his camera with him because he was using the
camera to document flood damage. The Appellant heard the alarm for his cellular
telephone charger going off in the victim’s bedroom, so he went into the room to check
the charger. The victim had asked to borrow the charger in order to charge her own
cellular telephone.
The Appellant testified that he looked at the fish in the fish tank and pulled out his
camera to video-record the fish. Defense counsel asked why the Appellant wanted to
record the fish, and the Appellant answered, “I take pictures and videos of lots of stuff,
you know. I’m a photographer, just an amateur, you know. I take pictures of, you know,
the river, you know, and stuff.” He said he took the first video and was “trying to coax
the fish out.” The Appellant did not own any of the fish but had nicknamed one “Barack
Obama.” After he made the first video, he put the camera on the dresser and fed the fish.
The Appellant said he often made two or three videos and kept the best one. He then
deleted the first video because “there weren’t as many fish . . . swimming around.”
The Appellant testified that he made a second video of the fish, put his camera on
the dresser, and fed the fish again “to coax [them] out and get them to swim around.” At
that point, he noticed that his sunglasses were in the victim’s bedroom. He wondered
what they were doing there and began “just nosing around, being nosey.” He explained
that he became distracted when he saw his sunglasses, that he forgot about the camera,
and that the second video showed him “going through her stuff, nosing around.” He did
not know the victim’s clothes were covering the camera. He said the camera was aimed
toward the bedroom window, which was not something he would do intentionally
because the light from the window would make the video dark. He denied entering the
room with the intent to video-record the victim while she was changing clothes.
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On cross-examination, the Appellant acknowledged that he had computer science
degrees from Vanderbilt University and Middle Tennessee State University and that he
was staying with the victim’s family to help after the flood. He did not recall E.M.
asking on May 18 if he had been in the girls’ rooms and said she asked him to leave so
the family could get ready for a school trip to Ohio. He acknowledged that he had seen
the two videos many times and that he did not mention the cellular telephone charger in
his controlled call with E.M. or in his conversation with Detective Adkins. He explained
that “it didn’t seem like a significant thing, it was something I remembered later,” and he
noted that the charger could be heard going off in the first video. The Appellant did not
knock on the victim’s bedroom door before he entered the room because the door was
open, and he thought someone was in the bathroom but did not know if it was the victim.
The Appellant said he did not turn on the bedroom light because light was shining
through the window. He said he accidentally left his camera in the victim’s room.
On redirect examination, the Appellant testified that E.M. made the controlled
telephone call to him three weeks after the incident. During that three-week period, he
did not know he had left his camera in the victim’s bedroom and thought it was in the
trunk of his car. On recross-examination, the Appellant testified that he received
discovery for this case in the Fall of 2013 and subsequently sent a letter to Davidson
County District Attorney General Torry Johnson. The State asked if he said anything in
the letter about video-recording the fish, and the Appellant did not answer. The
Appellant noted that he did not sign the letter.
The State introduced the four-page, typed letter to General Johnson into evidence.
In the letter, the Appellant stated that during his telephone conversation with E.M., she
confronted him about the camera being in the victim’s bedroom and that he told her he
probably went into the room to feed the fish. He then wrote as follows:
[E.M.] and I went to a lot of trouble to clean the aquarium and
take care of the fish in [the victim]’s room. [The victim]’s
room was centrally located next to the living room. While I
was in there, I found my prescription sunglasses. My
sunglasses kept disappearing. When I found my sunglasses in
[the victim]’s room, I looked around to see if she had any
more of my stuff. I saw my cell phone charger plugged into
[the victim]’s phone. I thought it was unusual that [the
victim] had my sunglasses and cell phone charger. Why
didn’t she use her own cell phone charger?
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I was happy to find my sunglasses and I picked them up and
left [the victim]’s room. I took my sunglasses upstairs so I
could find them later. I don’t remember leaving my camera
in [the victim]’s room. If I did, it was unintentional. That’s
all I remembered 3 weeks later when they first told me about
this. It was not significant enough to remember exactly what
happened. The only reason I remember anything is because I
found my sunglasses and cell phone charger in [the victim]’s
room.
The Appellant did not sign the letter but concluded it by typing his name and telephone
number.
Immediately after the close of proof, the trial court found the Appellant guilty as
charged of attempted especially aggravated sexual exploitation of a minor, a Class C
felony. After a sentencing hearing, the court sentenced him to four years to be served as
one year in confinement and the remainder on supervised probation.
II. Analysis
A. Sufficiency of the Evidence
The Appellant claims that the evidence is insufficient to support the conviction
because no “lacivious exhibition” occurred in this case. The State argues that the
evidence is sufficient. We agree with the State.
When an appellant challenges the sufficiency of the convicting evidence, the
general standard of review by an appellate court is “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.” Jackson v. Virginia, 443
U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Accordingly, in a bench trial,
the trial judge, as the trier of fact, must resolve all questions concerning the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual issues
raised by the evidence. State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998).
The trial judge’s verdict carries the same weight as a jury verdict. State v. Hatchett, 560
S.W.2d 627, 630 (Tenn. 1978).
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A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The [trier of fact] decides the weight to be given to circumstantial
evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent to which
the circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the [trier of fact].’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review
‘is the same whether the conviction is based upon direct or circumstantial evidence.’”
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009)).
Tennessee Code Annotated section 39-12-101 provides:
(a) A person commits criminal attempt who, acting
with the kind of culpability otherwise required for the
offense:
(1) Intentionally engages in action or
causes a result that would constitute an offense
if the circumstances surrounding the conduct
were as the person believes them to be;
(2) Acts with intent to cause a result that
is an element of the offense, and believes the
conduct will cause the result without further
conduct on the person’s part; or
(3) Acts with intent to complete a course
of action or cause a result that would constitute
the offense, under the circumstances
surrounding the conduct as the person believes
them to be, and the conduct constitutes a
substantial step toward the commission of the
offense.
The Tennessee Protection of Children Against Sexual Exploitation Act of 1990
criminalizes the possession, distribution, and production of child pornography. State v.
Whited, 506 S.W.3d 416, 427 (Tenn. 2016). As charged in this case, especially
aggravated sexual exploitation of a minor occurs when a person knowingly uses a minor
“to participate in the performance of, or in the production of, . . . material that includes
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the minor engaging in . . . [s]exual activity.” Tenn. Code Ann. § 39-17-1005(a)(1).
“Sexual activity” is defined as
(A) Vaginal, anal or oral intercourse, whether done
with another person or an animal;
(B) Masturbation, whether done alone or with another
human or an animal;
(C) Patently offensive, as determined by contemporary
community standards, physical contact with or touching of a
person’s clothed or unclothed genitals, pubic area, buttocks or
breasts in an act of apparent sexual stimulation or sexual
abuse;
(D) Sadomasochistic abuse, including flagellation,
torture, physical restraint, domination or subordination by or
upon a person for the purpose of sexual gratification of any
person;
(E) The insertion of any part of a person’s body or of
any object into another person’s anus or vagina, except when
done as part of a recognized medical procedure by a licensed
professional;
(F) Patently offensive, as determined by contemporary
community standards, conduct, representations, depictions or
descriptions of excretory functions; or
(G) Lascivious exhibition of the female breast or the
genitals, buttocks, anus or pubic or rectal area of any person.
Tenn. Code Ann. § 39-17-1002(8). As noted by the Appellant, the only definition of
“sexual activity” arguably applicable to this case would be subsection (G), whether the
video attempted to depict the minor victim engaged in the “[l]ascivious exhibition of the
female breast or the genitals, buttocks, anus or pubic or rectal area of any person.” Tenn.
Code Ann. § 39-17-1002(8)(G).
Our supreme court recently addressed the meaning of “lascivious.” In Whited, the
defendant was convicted of nine counts of especially aggravated sexual exploitation of a
minor after he hid his cellular telephone in a bathroom and bedroom used by his twelve-
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year-old daughter and secretly videotaped her and a fourteen-year-old friend in various
stages of undress. 506 S.W.3d at 419. Although all of the videos depicted the girls in
“varying degrees” of nudity, the defendant argued that the evidence was insufficient to
support the convictions because the videos did not depict “sexual activity.” Id. at 425,
442.
The supreme court first addressed the standard of review and found that the
determination of whether the depictions in the videos were legally sufficient to support a
finding that the girls engaged in “lascivious exhibition” was primarily an issue of law
subject to de novo review but that the State was entitled to the strongest legitimate view
of the evidence regarding any disputed facts. Id. at 427. The court then turned to
whether the evidence was sufficient to show that the videos depicted lascivious
exhibition.
“[M]ere nudity, without more, is insufficient to establish a lascivious exhibition of
private body areas.” Id. at 431. In determining whether conduct involves mere nudity or
lascivious exhibition, the court specifically rejected this court’s use of the six “Dost
factors” 2 as a “‘test’” or “analytical framework.” Id. at 437. Instead, judges should use
2
In Dost, the United States District Court for the Southern District of California held that
in determining whether a visual depiction of a minor constituted a “lascivious exhibition of the
genitals or pubic area” under federal law, the trier of fact should consider the following factors:
1) whether the focal point of the visual depiction is on the
child’s genitalia or pubic area;
2) whether the setting of the visual depiction is sexually
suggestive, i.e., in a place or pose generally associated with sexual
activity;
3) whether the child is depicted in an unnatural pose, or in
inappropriate attire, considering the age of the child;
4) whether the child is fully or partially clothed, or nude;
5) whether the visual depiction suggests sexual coyness or
a willingness to engage in sexual activity;
6) whether the visual depiction is intended or designed to
elicit a sexual response in the viewer.
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).
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their good sense to consider [the Dost factors] or any other
features of a depiction that might tend to make it sexual or
lascivious. Indeed, . . . in assessing the lasciviousness of the
videos . . . , this Court considers ordinary characteristics, such
as the minor victims’ nudity and whether the children’s
private body areas are featured in the videos.
Id. at 437-38. Moreover, because the offense of especially aggravated sexual exploitation
of a minor does not include the defendant’s intent or purpose of sexual arousal or
gratification as an element of the offense, the material at issue must be evaluated based
on what is depicted without reference to the defendant’s subjective intent. Id. at 441.
To determine whether the videos depicted “lascivious exhibition” in Whited, our
supreme court considered
the level and nature of the nudity in the videos, the emphasis
on the minor victims’ private body areas, the fact that the
victims were engaged in everyday activities ordinarily
performed nude, the defendant’s audible comments and
interactions with the victims recorded on the videos, and the
defendant’s recorded actions depicting his voyeurism in
setting up the camera.
Id. at 447. Although the court characterized the issue as “close,” it held that the evidence
was insufficient to support any of the convictions because the minors in the videos were
engaged in activities that were appropriate for the settings in which the videos were
recorded and were not sexual or lascivious within the ordinary meaning of those terms.
Id. However, the court noted that the State could retry the defendant on the lesser-
included offense of attempted especially aggravated sexual exploitation of a minor,
stating,
The defendant in this case was convicted of producing
child pornography; the jury was not instructed on the lesser-
included offense of attempt on those counts. Our conclusion
that the defendant did not produce material that is sufficient
to support a conviction for the production of child
pornography under the child sexual exploitation statutes “is
not tantamount to a finding of insufficiency on” attempt. The
facts in this case present a close question regarding whether
the defendant intended to capture exactly what he recorded in
the videos—minors engaged in everyday activities ordinarily
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done nude—or whether he intended to “cause a result that
would constitute the offense” of production of child
pornography by recording the minors engaged in a lascivious
exhibition. Tenn. Code Ann. § 39-12-101(3). Considering
the entirety of the record, “the evidence in the record is not so
insufficient” so as to preclude a finding of attempted
production of child pornography.
Id. at 448 (case citations omitted).
Taken in the light most favorable to the State, the evidence in the instant case
establishes that the victim’s routine before school was to take a shower, return to her
bedroom, and dress in an area between her dresser and her bed. On the morning of May
18, 2010, the Appellant went into the victim’s bedroom while she was taking a shower.
He put his camera on the dresser, turned it toward the area in which the victim would
change clothes, and made the first video as a test. He then deleted the video and returned
the camera to its previous location on the dresser. He tried to conceal the camera, walked
to the victim’s bed twice, and ruffled through her clothes. The Appellant left the
bedroom, and the camera sat idly recording the dark room for four minutes until the
victim entered the bedroom and turned on the light. She walked toward her bed and into
the exact area the camera was recording. She turned toward her dresser and saw the
camera.
In considering whether the Appellant attempted to record lascivious exhibition of
the victim’s private body areas, the evidence shows that, had the victim not found the
camera, it would have recorded her bare breasts, pubic area, and buttocks while she
engaged in the everyday activity of dressing after showering. She was not posed or
coached for the video, and there were no audible comments or interactions between the
victim and the Appellant in the video. However, we believe the depiction of “a middle-
age man secreting a camera to record” the victim, which also occurred in Whited, and his
walking to her bed “portray[ed] voyeurism and suggest[ed] a sexual connotation for the
minor’s engagement in everyday activities ordinarily done in the nude and in private.”
Id. at 446. Moreover, due to the small size of the room and the short distance between
the dresser and the bed, the focal point of the video would have been the victim’s private
areas. Thus, we conclude that the evidence was sufficient for the trier of fact to conclude
that the Appellant attempted to produce child pornography by recording the victim in a
lascivious exhibition. Accordingly, the evidence is sufficient to support the conviction of
attempted especially aggravated sexual exploitation of a minor.
B. Detective Gish’s Testimony
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The Appellant contends that the trial court erred by allowing Detective Gish to
testify that he found adult pornography on electronic devices seized during the search of
the Appellant’s home because the testimony was irrelevant. He also claims that, in any
event, the testimony was highly prejudicial and that Detective Gish was not qualified as
an expert to give such testimony. The State argues that even if the trial court erred, the
error was harmless. We conclude that the testimony was irrelevant but that the error was
harmless.
Before Detective Gish’s testimony, defense counsel agreed to stipulate that the
officer was an expert in the forensic analysis of electronic devices. During direct
examination, Detective Gish testified that he worked in the MNPD’s Surveillance and
Investigative Support Unit and that he examined the memory card from the Appellant’s
camera. He also examined other electronic devices seized during the search of the
Appellant’s home. The State asked if the detective found any child pornography on those
devices, and he said no. The State then asked if he found any pornography, and he
answered, “I did.” Defense counsel objected based upon relevance and “also the
implication. He’s up here testifying he found legal material but they want to label it
pornography, Your Honor.” The trial court noted that Detective Gish was testifying as an
expert, but defense counsel pointed out that the detective was testifying as an expert in
forensic analysis, not “the standards of what’s acceptable and not acceptable
photographs.” Defense counsel requested that the State show the trial court the
photographs Detective Gish considered pornographic. The trial court asked if the State
was going to enter the photographs as exhibits, and the State said no. The State again
asked if Detective Gish found any pornography on the Appellant’s computer, and he
answered, “Yes, but not child pornography.” The State asked for a third time, “Okay.
But there was pornography?” The detective answered, “Yes, there was some.” Defense
counsel objected on the basis that the question had been asked and answered. The trial
court did not rule on the objection.
Relevant evidence is “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. However, even
relevant evidence “may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403. Tennessee Rule of Evidence 404(b) generally provides
that evidence of other bad acts is irrelevant and, therefore, inadmissible. See Tenn. R.
Evid. 404(b). The Rule also provides, though, that evidence of other bad acts may be
admissible for other purposes, such as “‘to show identity, guilty knowledge, intent,
motive, to rebut a defense of mistake or accident, or to establish some other relevant
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issue.’” State v. Moore, 6 S.W.3d 235, 239 n.5 (quoting State v. Hallock, 875 S.W.2d
285, 292 (Tenn. Crim. App. 1993)).
Before a trial court may permit evidence of a prior crime, wrong, or act, the
following procedures must be met:
(1) The court upon request must hold a hearing outside
the jury’s presence;
(2) The court must determine that a material issue
exists other than conduct conforming with a character trait
and must upon request state on the record the material issue,
the ruling and the reasons for admitting the evidence;
(3) The court must find proof of the other crime,
wrong, or act to be clear and convincing; and
(4) The court must exclude the evidence if its
probative value is outweighed by the danger of unfair
prejudice.
Tenn. R. Evid. 404(b). If the trial court has complied with these procedures, this court
will not overturn the trial court’s decision to admit or exclude evidence under Rule
404(b) absent an abuse of discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn.
1997).
Although an adult’s use of pornography is legal, unless it is obscene or child
pornography, it has “such prejudicial potential” that its admissibility is governed by
Tennessee Rule of Evidence 404(b). State v. Clark, 452 S.W.3d 268, 289 & fn.10 (Tenn.
2014). As our supreme court has explained, “Caution is especially warranted in trials for
sex crimes because a jury may infer from a defendant’s use of pornography that the
defendant had the propensity to engage in other morally questionable sexual behaviors.”
Id. Moreover, such “propensity evidence is especially harmful in close cases, such as
those that hinge on the credibility of the witnesses[.]” Id. at 290.
Turning to the instant case, we initially note that the State claims the Appellant has
failed to preserve this issue because he did not include the transcript of the motion for
new trial in the appellate record. The record reflects that the Appellant filed a motion for
new trial, that the trial court held a hearing on the motion, and that the trial court denied
the motion. The Appellant was not required to file a motion for new trial because the
trial was a bench trial. See Tenn. R. App. P. 3(e) (providing that prior to initiating an
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appeal as of right, defendants must file a motion for new trial “in all cases tried by a
jury”). Nevertheless, given that he did so and that the trial court held a hearing on the
motion, the Appellant should have included the transcript of the hearing in the appellate
record. See Tenn. R. App. P. 24(b) (providing that it is the appellant’s duty to prepare a
record which conveys a fair, accurate, and complete record on appeal to enable
meaningful appellate review). However, our supreme court has determined that a record
may be sufficient for our review despite the absence of a relevant transcript. See State v.
Caudle, 388 S.W.3d 273, 277 (Tenn. 2012). We believe the record is adequate for our
review of this issue.
The State offered no explanation at trial as to why the Appellant’s possessing adult
pornography was relevant to this case and acknowledges on appeal that the evidence was
irrelevant, stating in its brief that “the State did not establish any connection between the
pornography found on the computer and the facts of this case.” Thus, we agree with the
Appellant that Detective Gish’s testimony about finding pornography was not relevant
and that the trial court should have sustained the Appellant’s first objection.
Next, we must determine whether the error was harmless. Clark, 452 S.W.3d at
287 (citing Tenn. R. App. P. 36(b)). We are perplexed that the State continued to ask the
witness if he found adult pornography when he had already answered the question in the
affirmative, and we believe the State was attempting to use the evidence as propensity
evidence. That said, the outcome of this case did not “hinge” on the trier of fact’s
assessment of the credibility of the victim and the Appellant. Id. at 290. Instead, it
hinged greatly upon the videos.
The Appellant testified at trial that he was video-recording the fish, not the victim.
However, both of the videos belie that contention, showing the fish tank for only a few
seconds before the Appellant turned the camera toward the victim’s bed, put the camera
on the dresser, and adjusted the camera. Although the Appellant said that he became
distracted by his unexpectedly finding his sunglasses in the room and that he forgot about
the camera, nothing in the second video indicates that he found his sunglasses there. In
short, the videos did not support the Appellant’s explanation at trial for making the
videos.
Moreover, although the Appellant testified that he first entered the room because
he heard his cellular telephone charger going off, he never mentioned the charger in his
controlled call with E.M. or in his conversation with Detective Adkins. In his letter to the
district attorney general, he claimed that he went into the room to get his sunglasses,
looked around to see if the victim had more of his property, and found his charger
plugged into her cellular telephone. The Appellant also failed to mention in the letter that
he was recording the fish. During the State’s cross-examination of the Appellant, it
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pointed out discrepancies in his testimony, the controlled call, and the letter, and those
discrepancies greatly undermined his credibility. Thus, even though the trial court erred
by allowing Detective Gish to testify that he found adult pornography on other devices,
we do not believe that testimony changed the outcome of this case.
C. Error Coram Nobis
The Appellant contends that the trial court erred by denying his petition for a writ
of error coram nobis based upon newly discovered evidence. The State argues that the
trial court properly denied the petition. We agree with the State.
Almost seven months after the trial court sentenced the Appellant, he filed a
petition for a writ of error coram nobis. In the petition, he alleged that he was entitled to
relief based upon newly discovered evidence. He asserted that he was denied access to
his computer, which was seized during the search of his home, until he was released from
confinement in January 2016. At that point, the MNPD returned his computer to him,
and he discovered that it contained photographs and video of fish and fish tanks, which
would have supported his testimony that he was recording the fish on May 18, 2010.
At a hearing on the petition, the Appellant testified that he had transferred
photographs and video-recordings from his camera’s memory card to his computer’s hard
drive for storage and to “free up” space on the memory card. During the search of his
home in 2010, officers seized the computer and did not return it to him until he was
released from confinement in January 2016. When the Appellant received the computer,
he reviewed the stored media and found “videos of aquariums that [he] had taken prior to
being arrested.” He also found photographs of the fish tank the victim’s family had
owned when they lived in California in 2004 and photographs of him and the girls
“hanging out” in their bedrooms, which contradicted their trial testimony that he was not
allowed in their rooms. The Appellant introduced into evidence a DVD containing
photographs and videos allegedly taken from his computer hard drive.
On cross-examination, the Appellant acknowledged that he took all of the
photographs and recorded all of the videos that were stored in his computer’s hard drive
but said that “it’s one of those things that you wouldn’t necessarily remember every
single picture you have taken over the past five or ten years.” The Appellant did not ask
his attorney to obtain the hard drive before trial because the photographs and videos did
not “cross [his] mind.”
In a written order, the trial court denied the petition, stating that “the
defendant/petitioner has not met his burden and that the presentation of said evidence at
trial would not have altered the verdict.” On appeal, the Appellant maintains that he is
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entitled to coram nobis relief based upon the newly discovered photographs and video
and that the trial court applied an incorrect standard of review by considering whether the
new evidence “would have” resulted in a different judgment instead of the statutorily
mandated “may have” standard.
The writ of error coram nobis is codified in Tennessee Code Annotated section 40-
26-105 and provides as follows:
There is hereby made available to convicted defendants in
criminal cases a proceeding in the nature of a writ of error
coram nobis, to be governed by the same rules and procedure
applicable to the writ of error coram nobis in civil cases,
except insofar as inconsistent herewith . . . . Upon a showing
by the defendant that the defendant was without fault in
failing to present certain evidence at the proper time, a writ of
error coram nobis will lie for subsequently or newly
discovered evidence relating to matters which were litigated
at the trial if the judge determines that such evidence may
have resulted in a different judgment, had it been presented at
the trial.
Generally, a decision whether to grant a writ of error coram nobis rests within the sound
discretion of the trial court. See State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App.
1995).
The writ of error coram nobis is a post-conviction mechanism that has a long
history in the common law and the State of Tennessee. See, e.g., State v. Vasques, 221
S.W.3d 514, 524-26 (Tenn. 2007). The writ “is an extraordinary procedural remedy . . .
[that] fills only a slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661,
672 (Tenn. 1999).
Our supreme court has outlined the procedure that a court considering a petition
for a writ of error coram nobis is to follow:
[T]he trial judge must first consider the newly discovered
evidence and be “reasonably well satisfied” with its veracity.
If the defendant is “without fault” in the sense that the
exercise of reasonable diligence would not have led to a
timely discovery of the new information, the trial judge must
then consider both the evidence at trial and that offered at the
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coram nobis proceeding in order to determine whether the
new evidence may have led to a different result.
Vasques, 221 S.W.3d at 527. In determining whether the new information may have led
to a different result, the question before the court is “‘whether a reasonable basis exists
for concluding that had the evidence been presented at trial, the result of the proceeding
might have been different.’” Id. (quoting State v. Roberto Vasques, No. M2004-00166-
CCA-R3-CD, 2005 WL 2477530, at *13 (Tenn. Crim. App. at Nashville, Oct. 7, 2005)).
Regarding the Appellant’s claim that the trial court applied the incorrect standard
of review, the trial court’s order denying relief was brief, consisting mostly of the
Appellant’s allegations for relief. The court then wrote as follows:
The decision to grant or to deny a petition for the writ
of error coram nobis on its merits rests within the sound
discretion of the trial court, Ricky Harris v. State, 301 S.W.3d
141, 144 (Tenn. 2010). After careful review of the testimony
at the hearing, arguments of respective counsel as well as a
review of the photographs and videos, the Court is of the
opinion that the defendant/petitioner has not met his burden
and that the presentation of said evidence at trial would not
have altered the verdict.
Although the coram nobis court appeared to use the wrong standard, the photographs and
videos from the hard drive do not constitute “newly discovered evidence.” Nothing
indicates that the computer hard drive was unavailable to the Appellant before trial.
Instead, the Appellant, who took the photographs, recorded the videos, and then
transferred the photographs and videos to the computer, did not think to have his attorney
ask for the hard drive. Accordingly, he is not entitled to relief.
F. Speedy Trial
The Appellant contends that his right to a speedy trial was violated because he was
not tried for “well over four years” after he was indicted, his case was reset for trial at
least twice through no fault of his own, and he was prejudiced by the delay because he
was unable to recall with specificity the events of May 18, 2010. The State argues that
the Appellant’s right to a speedy trial was not violated. We agree with the State.
“The right to a speedy trial arises under the Sixth Amendment to the Constitution
of the United States made applicable to the State by the Fourteenth Amendment . . . and
Article 1, § 9 of the Constitution of Tennessee.” State v. Bishop, 493 S.W.2d 81, 83
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(Tenn. 1973). To determine whether a defendant’s constitutional right to a speedy trial
has been violated this court must conduct the balancing test set forth in Barker v. Wingo,
407 U.S. 514 (1972). See State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996); State v.
Baker, 614 S.W.2d 352, 353 (Tenn. 1981). Under the Barker analysis, the following four
factors must be considered: (1) the length of the delay; (2) the reasons for the delay; (3)
the accused’s assertion of the right to a speedy trial; and (4) the prejudice resulting from
the delay. 407 U.S. at 530.
The State again argues the Appellant has waived this issue because he failed to
include the transcript for the motion for new trial in the appellate record. We again
conclude, though, that the record is adequate for our review. See Caudle, 388 S.W.3d at
277. The State also argues that the Appellant has waived the issue because he failed to
request a speedy trial in a pretrial motion to dismiss. However, “the failure to demand a
speedy trial is not a waiver of the right, but is one of the factors to be considered in the
ultimate decision.” State v. Bishop, 493 S.W.2d 81, 85 (Tenn. 1973).
“The right to a speedy trial attaches at the time of arrest or indictment, whichever
comes first, and continues until the date of the trial.” State v. Vickers, 985 S.W.2d 1, 5
(Tenn. Crim. App. 1997). In this case, the Appellant was indicted on December 14,
2010, and his trial commenced on February 2, 2015, resulting in a delay of more than
four years. A delay of one year or longer will usually trigger an inquiry into a speedy
trial violation. Id. In Vickers, this court found that a delay of three years and nine
months was not a presumptive speedy trial violation. Id. Therefore, we must examine
the other factors involved.
The second factor, the reason for delay, generally falls into one of four categories:
(1) intentional delay to gain a tactical advantage over the defense or delay designed to
harass the defendant; (2) bureaucratic indifference or negligence; (3) delay necessary to
the fair and effective prosecution of the case; and (4) delay caused, or acquiesced in, by
the defense. Wood, 924 S.W.2d at 346-47. The Appellant asserted in his amended
motion for new trial that the delay “was caused by delays in providing discovery to
[him]” and asserts in his appellate brief that “the State delayed the trial.” However,
nothing in the record supports those claims. Thus, this factor weighs against the
Appellant.
Regarding the third factor, the Appellant’s assertion of his right to a speedy trial,
nothing indicates that the Appellant ever requested a speedy trial. “Failure to assert the
right implies a defendant does not actively seek a swift trial.” Id. at 347. Therefore, this
factor also weighs against him.
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Finally, we must determine whether the Appellant was prejudiced by the delay,
which is the “final and most important factor in the [speedy trial] analysis.” State v.
Simmons, 54 S.W.3d 755, 760 (Tenn. 2001). Prejudice is to be assessed in light of the
following interests of the accused which the right to a speedy trial was designed to
protect: (1) to prevent undue and oppressive incarceration prior to trial; (2) to minimize
the anxiety and concern that result from being accused of a crime; and (3) to limit the risk
that the defense will be impaired. State v. Simmons, 54 S.W.3d 755, 760 (Tenn. 2001).
Here, the Appellant does not contend that he was oppressively incarcerated before trial.
To the contrary, he states in his brief that he “was on bond the entire time.” He also does
not claim that he suffered from anxiety and concern but asserts that the delay impaired
his ability to prepare a defense because he could not remember the specific events of May
18, 2010. However, E.M. confronted the Appellant about his recording the victim just
three weeks after the event, and Detective Adkins questioned him and executed a search
warrant on his home on June 9, 2010. Therefore, the Appellant was well-aware shortly
after May 18, 2010, that he could be charged with committing a crime on that date.
Furthermore, he testified at trial that the two videos helped him remember what happened
on May 18, and his testimony was quite detailed as to why he went into the victim’s room
and how the recordings occurred. Thus, we believe the prejudice caused by the delay
was, at most, minimal and does not weigh in favor of a speedy trial violation.
In sum, the length of the delay weighs in favor of a speedy trial violation, but the
other three factors do not. Accordingly, the Appellant is not entitled to relief.
F. Remaining Issues and Plain Error
In addition to the issues discussed above, the Appellant contends that the trial
court improperly allowed the State to introduce his camera, memory card, and videos into
evidence without showing a proper chain of custody; that the trial court erred by allowing
the State to play only a portion of E.M.’s controlled telephone call; that the State
improperly introduced irrelevant habit evidence; that the trial court improperly allowed
the State to introduce into evidence the letter supposedly written by the Appellant to the
district attorney general; and that the trial court erred by allowing the State to make
improper closing arguments. However, he did not object to any of the evidence or the
State’s arguments at trial. See Tenn. R. App. P. 36(a) (nothing in the rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of
an error).
The Appellant requests that we review these issues for plain error. We may
consider an issue as plain error when all five of the following factors are met:
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(a) the record must clearly establish what occurred in the trial
court; (b) a clear and unequivocal rule of law must have been
breached; (c) a substantial right of the accused must have
been adversely affected; (d) the accused did not waive the
issue for tactical reasons; and (e) consideration of the error is
“necessary to do substantial justice.”
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted);
see also Tenn. R. App. P. 36(b). Furthermore, the “‘“plain error” must be of such a great
magnitude that it probably changed the outcome of the trial.’” Id. at 642 (quoting United
States v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)). It is the Appellant’s burden to
demonstrate plain error. State v. Gomez, 239 S.W.3d 722, 727 (Tenn. 2007). Moreover,
we do not need to consider all five factors if we determine that a single factor does not
warrant relief. State v. Smith, 24, S.W.3d 274, 283 (Tenn. 2000).
Regarding the chain of custody for the camera, memory card, and videos, it is
“‘well-established that as a condition precedent to the introduction of tangible evidence, a
witness must be able to identify the evidence or establish an unbroken chain of custody.’”
State v. Scott, 33 S.W.3d 746, 760 (Tenn. 2000) (quoting State v. Holbrooks, 983 S.W.2d
697, 700 (Tenn. Crim. App. 1998)). The victim identified the camera she found on May
18, 2010, and Detective Gish identified the memory card he removed from the camera
and the videos he found on the card. Thus, a clear and unequivocal rule of law was not
breached.
Regarding the State’s playing only a portion of E.M.’s controlled call, the
Appellant claims that Tennessee Rule of Evidence 106, the “rule of completeness,”
required the playing of the entire call because the entire conversation “shows Mr. Hall
not only denying any wrongdoing regarding the alleged victim, but is similarly unfamiliar
with the exact incident that [E.M.] is discussing.” However, in the portion played by the
State, the Appellant repeatedly told her that he did not remember making the video and
that he did not record the victim intentionally. Thus, playing the entire call probably
would not have changed the outcome of trial. Moreover, we are not convinced that the
Petitioner did not waive this issue for tactical reasons.
As to the Appellant’s claim that the State introduced irrelevant habit evidence,
Tennessee Rule of Evidence 406 allows evidence of habit to prove that a person’s
conduct on a particular occasion was in conformity with the habit. Habit “is a regular
response to a repeated specific situation.” Tenn. R. Evid. 406(b). In this case, the State
asked the victim to describe her “habit” of getting ready for school, and the victim
explained her morning routine. The State then had the victim describe the events of May
18. During cross-examination of the Appellant, the State asked if he was “used to the
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way that the household operates,” the implication being that the Appellant was familiar
with the victim’s morning routine and, therefore, knew of an opportunity to record her
changing clothes. The Appellant answered, “I suppose.” We note that “Rule 406 admits
evidence that would probably be admitted anyway under the general relevance principles
embraced in Rule 401.” Neil P. Cohen et al., Tennessee Law of Evidence, § 4.06[2] (6th
ed. 2011); see Tenn. R. Evid. 401. We believe the victim’s testimony about her morning
routine was relevant habit evidence.
As to the letter written to the district attorney general, the Appellant contends that
the State failed to establish that he wrote the letter; that the trial court improperly allowed
the State to refresh his recollection with the letter pursuant to Tennessee Rule of
Evidence 612; and that the trial court improperly allowed the State to introduce the entire
letter, over the Appellant’s objection, into evidence under Rule 612. We find no merit to
these claims.
During recross-examination of the Appellant, the State asked if he remembered
sending a letter to District Attorney General Torry Johnson. The Appellant did not deny
writing the letter but instead answered, “I got to read it.” The State replied that either he
remembered the letter or not, and the Appellant stated, “I sent a letter to Torry Johnson.”
The State then asked, “Right. And in this letter you never say anything about videotaping
the fish, do you, sir?” The Appellant said he did not remember the letter, so the State
showed the letter to him. Defense counsel objected, stating, “If she’s going to refresh his
recollection we would request that she use the proper form, Judge.” The trial court
replied, “He said he didn’t remember. She’s showing him the letter.” After the State
showed the letter to the Appellant, it asked him twice if the letter said anything about
recording fish, but the Appellant would not answer. The State then introduced the letter
into evidence without any objection by the Appellant. However, the Appellant stated, “I
didn’t sign that, so I . . . .”
The Appellant never claimed at trial, and does not claim on appeal, that he did not
write the letter. Indeed, the Appellant admitted sending a letter to the district attorney
general. When the State showed the letter to him, he did not deny writing it and said he
did not sign it. Regarding the State’s using the letter to refresh his memory, Tennessee
Rule of Evidence 612 generally allows a witness to use a writing while testifying to
refresh the witness’s recollection. When the State asked if the Appellant said anything in
the letter about recording fish, the Appellant said he did not remember the letter, so the
trial court properly allowed the State to refresh his memory with the letter pursuant to the
Rule. Although the entire letter was not admissible under that Rule, it was admissible
pursuant to the hearsay exception set forth in Tennessee Rule of Evidence Rule
803(1.2)(A), an admission by a party-opponent.
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Finally, the Appellant contends that the State gave improper closing arguments.
First, he claims that the prosecutor misstated the facts by telling the trial court that the
girls had established a morning routine for their activities, by telling the court that the
Appellant admitted to being the other party in the video when he did not give such
testimony, by stating that the videos did not show the fish tank when they did show the
tank, and by stating that the Appellant deleted the first video in order to get a better angle
of the victim when no such testimony was in the record. However, the victim and her
sister both testified about their morning routines; the Appellant admitted to recording
both videos and even said the second video showed him “nosing around” the victim’s
room; and both videos showed the fish tank for only a few seconds despite the
Appellant’s claim that he went into the room to record the fish. Therefore, the prosecutor
did not misstate the evidence. Moreover, the prosecutor’s arguing that the Appellant
deleted the first video and used the second video to get a better angle of the victim was a
reasonable inference given the facts. Therefore, we find nothing improper about the
State’s argument.
The Appellant also contends that the prosecutor’s closing arguments were
improper because she said that the Appellant “thinks we’re stupid enough to buy that bull
that comes out of his mouth” and “thinks that he is so smart . . . he can get up here and
bulldoze and B.S. his way through all the B.S. that he said.” The State acknowledges that
the prosecutor’s comments may have been improper. As we have repeatedly stated, it is
improper for a prosecutor to express his or her personal opinion on the evidence or a
defendant’s guilt or use arguments calculated to inflame the passions or prejudices of the
jury. State v. Goltz, 111 S.W3d 1, 6 (Tenn. Crim. App. 2003). In this case, though, the
closing arguments were made to a judge in a bench trial as opposed to a jury. We believe
a judge, who is fully informed about the law and the facts of a case, is less likely to be
influenced by improper statements made during closing arguments than a jury. See State
v. Donald Joseph Powell, No. M2014-01132-CCA-R3-CD, 2015 WL 3563106, at *9
(Tenn. Crim. App. at Nashville, June 8, 2015) (stating that “in a bench trial, the judge is
presumed to follow the law and to not consider improper evidence); see also Glenn Davis
v. Charles Bowers, No. E2011-00295-COA-R3-CV, 2012 WL 762442, at *13 (Tenn. Ct.
App. Mar. 9, 2012) (stating that “a trial court is well qualified to determine what weight,
if any, should be given to evidence,” and, therefore, that the risk of harm for improperly
admitted evidence is less in a bench trial than in a jury trial). In any event, given the
evidence, we do not believe the prosecutor’s statements were so egregious as to constitute
plain error. Accordingly, the Appellant is not entitled to relief.
III. Conclusion
Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgment of the trial court.
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_________________________________
NORMA MCGEE OGLE, JUDGE
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