State of Tennessee v. Grady Alton Vest ( 2019 )

12/30/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 7, 2019
STATE OF TENNESSEE v. GRADY ALTON VEST
Appeal from the Circuit Court for Henderson County
Nos. 17043-2, 17064-2 Donald H. Allen, Judge
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No. W2018-01694-CCA-R3-CD
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Defendant, Grady Alton Vest, was indicted by the Henderson County Grand Jury for four
counts of rape of a child and four counts of incest. Defendant was convicted as charged
following a jury trial. The trial court sentenced Defendant to 33 years for each rape of a
child conviction and five years for each incest conviction, with two of his 33-year
sentences to run consecutively, for a total effective sentence of 66 years’ incarceration.
In this appeal as of right, Defendant contends that the evidence was insufficient to
support his convictions, and his effective sentence is excessive. Following our review of
the entire record, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR. and D. KELLY THOMAS, JR., JJ., joined.
Michael Thorne, Lexington, Tennessee, for the appellant, Grady Alton Vest.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; James G. (Jerry) Woodall, District Attorney General; and Angela R.
Scott, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Evidence presented at trial
The victim of the offenses in this case is Defendant’s daughter, to whom we will
refer by her initials, A.V. Dr. Lisa Piercey, the medical director of the Madison County
Child Advocacy Center, testified that she examined A.V. Dr. Piercy testified that she
asked A.V. why she was there to see her, and A.V. replied, “My dad, [Defendant], has
been doing stuff to me for a long time.” Dr. Piercey testified,
. . . . she said that she remembered the first time that it had happened, she
was six years old and that [Defendant] “started talking to [her] about it
and showed [her] his parts.”
And she said that type of behavior went on for a couple of years until she
was eight years old and then she said, “He started making [her] suck his
stuff and then he touched [her] in [her] bad part with his hand and with
his bad part.”
And when children talk about being touched, I typically ask them, what
did that feel like or what do you remember about that, and she said that
she remembers that “the first couple of times that he put his bad part
inside [her], [her] bad part bled. [She] fe[l]l asleep in the tub
afterwards,” she thought it was around 2 a.m., “and woke up with the
water all bloody.”
And then she went on to say, “white stuff would come out of his bad
part, and it would go on the bed, on the floor, and one time in [her]
mouth.” I asked her about a condom. Most 11-year[-]olds don’t know
what that is or some of them don’t, and so, we talked about any kind of
lotion or covering or anything on his private, and she denied that he had
ever put anything like that on there.
She did relay that the most recent incident prior to when I saw her was
two weeks, so I saw her on March 4th, so maybe around mid to late
February, 2016, and she said that they had really gone down, and these
are my words not her[’s], she described that they had gone down in
frequency over the last couple of years. She said that “they happened
about every other day until [they] moved in with [her step-mother] and
then it only has happened twice since [they had] been at her house.”
Also during the interview, A.V. recalled that Defendant choked her once “because
[she] refused to do it.” A.V. also described an incident that happened when she was in
third grade when Defendant made her “suck one of his friend’s, Randall’s, things.”
Defendant told A.V., “he’d choke me until I died if I didn’t.” Dr. Piercey testified that
A.V. told her that in August, 2014, Defendant video recorded her “sucking his thing on
his cellphone, but then he deleted it and went to the recently deleted folder and deleted it
there, too.”
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Dr. Piercey conducted a “full body medical exam” on A.V. Dr. Piercey testified
that A.V. “became very frightened and shaking and crying during the genital exam and
that’s somewhat unusual[.]” Dr. Piercey testified that A.V. consented to the exam even
though she was “fairly traumatized.” Dr. Piercey observed that a portion of A.V.’s
hymen was missing. She testified “that’s considered definitive evidence of penetrating
trauma.” Dr. Piercey testified that her medical findings were consistent with the history
A.V. gave. Dr. Piercey’s assessment and diagnosis “was that of child sexual abuse.”
A.V. testified that she was 13 years old at the time of trial. She testified that she
did not know when the last time she saw her mother. She lived with her father,
Defendant, after her mother left. A.V. remembered talking to Ms. Gibson, a forensic
interviewer, and she testified that everything she told Ms. Gibson “was the truth.” She
denied that anyone other than Defendant had ever touched her inappropriately. She
testified that she had three brothers but denied that any of them had ever molested her.
A.V. testified that her step-mother, Idonnis, was the first person she told what
Defendant had done to her. She testified that she told her because she “didn’t want it to
go on anymore.” A.V. testified that she spoke to police the day after she told her step-
mother. A.V. had been living with her step-mother since “all of this happened.” A.V.
remembered talking to Dr. Piercey and testified that everything she told Dr. Piercey was
true.
On cross-examination, A.V. denied that she stated in her interview with Ms.
Gibson that Defendant recorded video of her. She testified, “I said he was watching
videos. I didn’t say that he was recording anything.”
Randall Vaughn testified that he was incarcerated at the Henderson County Jail for
the “[s]ale and delivery of morphine.” He also affirmed that he was on the sex offender
registry for a statutory rape conviction. He testified that he was convicted for having sex
with a 17-year-old girl when he was 21 years old. Mr. Vaughn testified that he had
spoken to an investigator about an incident involving Defendant. He testified that he had
not been offered anything in exchange for his testimony.
Mr. Vaughn testified that he met Defendant “through a family in-law, him and his
wife resided over there.” He testified that he sold methamphetamines to Defendant and
his wife, “and then it come out, you know, they was swingers.” He testified, “one thing
led to another, I sold him some meth, and one thing led to another, he wanted me to have
sex with his wife.” Mr. Vaughn testified that he had sex with Defendant’s wife while
Defendant watched. He testified,
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[w]hen it was over, she got up and went to the other room, and I got up
to [go to] the bathroom to get my stuff. When I come back in, he told
me to sit down, and he was sitting on the bed, and he said, “Sit your ass
down.” I looked over there. He said, “Look, just like her mama.” And
he had his daughter sitting there between his legs. [She was] [g]iving
him oral sex.
Mr. Vaughn testified that he “[f]reaked out.” He testified that Defendant “wanted
her to do the same to [him].” He walked out of the room and told Defendant’s wife,
“You turn him in or I will.” Mr. Vaughn testified that Defendant contacted him about a
week later and asked for more drugs. Mr. Vaughn told Defendant, “Look, I don’t mess
with it no more. I don’t do it no more. I’m through with it. I don’t need to mess with
you no more.” He testified that Defendant told him he was having an “orgy” and that
“[his] daughter [was] involved.” Mr. Vaughn testified that he hung up on Defendant and
had not spoken to him or seen him since then. He testified that he could not “say
whether [A.V.] did or didn’t [perform oral sex on him], but she got very close before [he]
got up and left.” He testified, “I can’t honestly tell you whether she did or didn’t touch
me.”
Mark Bates was also an inmate at the Henderson County Jail at the time of
Defendant’s trial. He testified that he was serving a three-year sentence for identity theft.
Mr. Bates testified that he met Defendant in jail in January, 2017. He testified that
Defendant came to his cell “three or four times a week.” Regarding Defendant’s
relationship with A.V., Defendant told Mr. Bates “that was his baby girl, and he’s going
to do anything to get back with her.” Mr. Bates testified that Defendant told him about
“three or four” incidents between Defendant and A.V. On the first occasion, Defendant
was drinking alcohol and using methamphetamines, and he raped A.V. in her bedroom.
Defendant told Mr. Bates that “there was a lot of blood” and that Defendant made A.V.
clean the blood with a curtain and put the curtain behind a chest of drawers. Mr. Bates
testified that Defendant warned A.V. “not to tell anyone, to tell people that she had
started her period.” The second occasion Defendant told Mr. Bates about “happened in
the truck that he blamed it on a work-related incident – accident.” Defendant told Mr.
Bates “that they was on their way from someone’s house,” and Defendant pulled over
and raped A.V. Defendant told his mother-in-law that he “got hurt at work” to explain
the blood in his truck. About his arrest, Defendant told Mr. Bates that he “knew that this
was going to happen but not this soon.” Defendant told Mr. Bates “that the voices in his
head made him [rape A.V.] and that he would black out.” Mr. Bates testified that he and
Defendant had “[m]ultiple” conversations about Defendant’s behavior, and “it was the
same story, pretty consistent over and over.” Mr. Bates testified that he had not been
promised anything in exchange for his testimony, and that he contacted the district
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attorney’s office and came forward because “[j]ustice needs to be served, and I was done
the same way as a child.”
Investigator David Dowdy, of the Henderson County Sheriff’s Department,
handled the investigation of the allegations against Defendant. Investigator Dowdy
testified that he established the timeframe for the four counts of rape and incest based on
A.V.’s statements in the forensic interview. Defendant was arrested by United States
Marshalls Task Force at the Pathways mental facility. Investigator Dowdy testified that
at the time of Defendant’s arrest, Defendant “kind of appeared . . . like he wasn’t
coherent, or – or he was out of it or possibly under the influence . . . .” Investigator
Dowdy spoke to Defendant again at a later date. He testified that Defendant stated that
he was “bipolar,” but he was not seeing a doctor. Defendant stated that he had
“blackouts” and that he had gone to Pathways because “he needed help.” He testified
that Defendant “never mentioned voices.”
Investigator Dowdy obtained a search warrant for Defendant’s electronic devices.
He recovered a laptop computer and a cell phone, but no evidence of any of Defendant’s
charges was found on either device. Investigator Dowdy also collected a brown blanket
from Defendant’s residence, but he did not have it tested for DNA because Ms. Vest
stated that she had washed the blanket. Investigator Dowdy also testified that he “would
absolutely expect to find [Defendant’s] DNA on his own blanket.” Investigator Dowdy
testified that the truck in which A.V. stated one of the incidents occurred had been
repossessed and was not available to examine for DNA.
Investigator Dowdy testified that Defendant described A.V. as “a good girl,” and
he stated that they had a good relationship. He testified that Defendant “didn’t really
understand why she would bring these allegations” against him.
Defendant did not testify or present any other proof at trial.
Sentencing hearing
At Defendant’s sentencing hearing, the trial court admitted the presentence report
as an exhibit. No other proof was presented. The trial court stated that it had considered
the proof presented at trial, the presentence report, the principles of sentencing, the
arguments of counsel, statistical information provided by the Administrative Office of the
Courts, and the nature of the offenses. The court noted that the victim was Defendant’s
biological daughter and that she suffered “an extended period of sexual penetration that
began when [the victim] was approximately 8 years of age and continued up until she
was 11 years of age.” The trial court found that Defendant had a history of criminal
convictions. The trial court noted that Defendant’s presentence report showed several
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prior misdemeanor convictions, and the court stated that it gave “those great weight for
enhancement purposes.”
The State sought application of enhancement factor (7), that “[t]he offense
involved a victim and was committed to gratify the defendant’s desire for pleasure or
excitement[.]” The trial court declined to apply the enhancement factor, finding,
“certainly, these offenses of rape of a child, these offenses of incest, were certainly done
for the defendant’s desire for pleasure or excitement, but I feel like that that’s really part
of the – part of the nature of the offenses for which he’s been convicted.”
The trial court applied enhancement factor (14), that Defendant abused a position
of private trust, emphasizing that Defendant is the biological father of the victim. The
trial court stated, “This child unfortunately had to depend on her father. She had no
mother in her life at that time period, and she was subject to whatever her father ordered
[her] to do.” The court found that Defendant violated A.V.’s trust in him by “sexually
abusing [her] from a very young age.”
The trial court noted that Defendant was “apparently a fairly intelligent
individual” and that “he had a work history,” but the trial court declined to give any
mitigating factors much weight. The trial court imposed sentences of 33 years for each of
Defendant’s rape of a child convictions and five years for each of Defendant’s incest
convictions.
The trial court ordered that two of Defendant’s 33-year sentences run
consecutively, resulting in a total effective sentence of 66 years in confinement. Pursuant
to Tennessee Code Annotated section 40-35-115(b)(5), the court found that Defendant
was convicted of two or more offenses involving the sexual abuse of a minor.
Additionally the trial court found that the sexual abuse “was aggravated, and the
aggravat[ing] circumstances being the seriousness of these injuries to the child,” noting
the victim’s psychological trauma and physical injuries. The court also considered “the
time[ ]span of [D]efendant’s undetected sexual activity,” noting that the abuse occurred
over several years.
Analysis
Sufficiency of the evidence
Defendant contends that the evidence is insufficient to sustain his convictions
because the victim’s and other witnesses’ testimony was inconsistent and not credible.
The State responds that the evidence presented established the statutory elements for the
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offenses beyond a reasonable doubt, and that any inconsistencies in the testimony were
resolved by the jury’s verdict. 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); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of
review for sufficiency of the evidence “is the same whether the conviction is based upon
direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). 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)).
Defendant was charged with and convicted of rape of a child and incest. In order
to sustain a conviction of rape of a child, the State was required to prove beyond a
reasonable doubt that (1) the Defendant unlawfully sexually penetrated the victim, (2)
who was less than thirteen years old, and that (3) the Defendant acted intentionally,
knowingly, or recklessly. T.C.A. § 39-13-522. Sexual penetration is defined, in relevant
part, as “sexual intercourse, cunnilingus, [or] fellatio.” T.C.A. § 39-13-501(7). Incest, as
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relevant here, is established by proving beyond a reasonable doubt that the Defendant
engaged in sexual penetration as previously defined in section 39-13-501, with the
victim, knowing the victim to be, without regard to legitimacy . . . the defendant’s natural
child. T.C.A. § 39-15-302.
Defendant challenges the victim’s credibility based on inconsistencies in her
testimony regarding whether Defendant made a video recording of himself committing
sexual acts against the victim. Defendant argues that the victim’s credibility is further
damaged by the lack of pornographic material found by police on Defendant’s cell phone.
Defendant also challenges the credibility of the two “jailhouse informants,” Mr. Vaughn
and Mr. Bates, who testified for the State. Any inconsistencies in the testimony at trial
were resolved by the jury in favor of the State. Likewise, the credibility of all the
witnesses was resolved by the jury.
Defendant’s challenges relate to the credibility of witnesses, the weight and value
to be given the evidence, and factual issues, all of which are resolved by the jury. Bland,
958 S.W.2d at 659. It was within the province of the jury to accredit the testimony at
trial.
Taken in the light most favorable to the State, the proof at trial established that the
victim disclosed several incidents of sexual abuse that occurred while she lived with
Defendant, her father. A.V. testified in detail about the abuse. While the victim’s
testimony alone is sufficient to support Defendant’s convictions and requires no
corroboration, medical evidence was introduced which supports A.V.’s testimony. See
State v. Elkins, 102 S.W.3d, 582-83 (Tenn. 2003) (evidence was sufficient to support
conviction for rape of child, despite fact that victim’s testimony contained some
inconsistencies). Mr. Vaughn testified that he saw A.V. perform fellatio on Defendant
and that Defendant encouraged Mr. Vaughn to have A.V. perform fellatio on Mr.
Vaughn. Mr. Bates testified that Defendant admitted several acts of sexual abuse against
A.V. to him while they were incarcerated together. We conclude that the evidence is
sufficient to support the convictions. Defendant is not entitled to relief.
Sentencing
Defendant contends that the trial court erred by enhancing his sentences above the
minimum within the range for his convictions. The State argues that Defendant’s
sentence is proper.
“[S]entences imposed by the trial court within the appropriate statutory range are
to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). In sentencing a
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defendant, the trial court shall consider the following factors: (1) the evidence, if any,
received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee; (7) any statement by the appellant in his own behalf; and (8) the
result of the validated risk and the needs assessment conducted by the department and
contained in the presentence report. See T.C.A. §§ 40-35-102, -103, -210; see also State
v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on an appellant to
demonstrate the impropriety of the sentence. See T.C.A. § 40-35-401, Sentencing
Comm’n Cmts.
As a Range II multiple offender convicted of a Class A felony, Defendant was
subject to a sentencing range of twenty-five to forty years for his rape of a child
convictions. See T.C.A. §§ 39-13-522(b)(1), 40-35-112(b)(1). In asserting that his
sentences are excessive, Defendant claims that the trial court misapplied two
enhancement factors. Defendant contests the trial court’s application of enhancement
factor (1), that Defendant had a previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range. He contends
that he “had a very minor criminal record at the time of sentencing yet the court imposed
that factor and gave it great weight in enhancing the sentence eight (8) years above the
minimum sentence.” The trial court observed that Defendant had a pending charge for
simple assault and that he had prior convictions for public intoxication, possession of
marijuana, driving under the influence of an intoxicant, and passing a worthless check.
The trial court noted that all of Defendant’s prior convictions were misdemeanors, but the
court gave “that [criminal] history great weight for enhancement purposes.”
Defendant also contends that the trial court erred by considering enhancement
factor (14), that Defendant abused a position of private trust “because he was convicted
of incest which itself contains the abuse of private trust[.]” At sentencing, the State
sought application of enhancement factor (14) to the child rape sentences, noting that the
factor was not applicable to the incest sentences because it was an element of the offense.
On appeal, however, the State cites Jeffery Brian Parks, No. M2003-02002-CCA-R3-CD,
2004 WL 1936404 (Tenn. Crim. App. Aug. 30, 2004), in which a panel of this court
found the “position of trust” enhancement factor to be applicable in cases of incest. The
panel explained:
With regard to application of this factor to the Appellant’s incest
convictions, this court has consistently held that “the existence of a
position of trust is not an essential element of the crime of incest because
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[Tennessee Code Annotated section] 39-15-302 prohibits sexual
penetrations among a wide [range of] relations, including parent and
child.”
Id. at * 4 (citations omitted). Our courts have consistently held that a parent/child
relationship establishes a position of trust for application of enhancement factor (14).
State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn. 1999) (citing State v. Kissinger, 922 S.W.2d
482, 488 (Tenn. 1996)).
We conclude that the trial court properly sentenced Defendant. The trial court
considered the relevant principles and sentenced the Defendant to a within range
sentence. The trial court stated on the record its reasons for the sentences it imposed;
thus, the trial court’s sentencing decisions are entitled to a presumption of
reasonableness. Defendant has failed to establish any abuse of discretion. The evidence
supports the trial court’s application of enhancement factors (1) and (14). T.C.A. § 40-
35-114. The evidence showed that Defendant had a prior history of misdemeanor
convictions, and the evidence clearly established that Defendant occupied a position of
trust.
In any event, as our supreme court has explained, a trial court’s “misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed. . . . So
long as there are other reasons consistent with the purposes and principles of sentencing,
as provided by statute, a sentence imposed by the trial court within the appropriate range
should be upheld.” Bise, 380 S.W.3d at 706. To the extent that Defendant complains
about the weight afforded these enhancement factors, “a trial court’s weighing of various
mitigating and enhancement factors [is] left to the trial court’s sound discretion.” State v.
Carter, 254 S.W.3d 335, 346 (Tenn. 2008).
The record also supports the trial court’s imposition of consecutive sentencing.
Tennessee Code Annotated section 40-35-115(b)(5) allows for consecutive sentencing
once a defendant has been convicted of two or more “statutory offenses involving sexual
abuse of a minor with the consideration of . . . the nature and scope of the sexual acts and
the extent of the residual, physical and mental damage to the victim or victims.” Id.; see
also State v. Doane, 393 S.W.3d 721, 737 (Tenn. Crim. App. 2011). The trial court noted
that the victim suffered physical injuries, including “bleeding on several of these
incidences where she says in [the presentence] report that it was to the point where it hurt
her to even walk. [She] [t]alked about how her stomach would hurt after he had raped
her on these various occasions.” The trial court also noted that the presentence report
stated that the victim had been to “trauma therapy” for the mental damage caused by
Defendant’s actions. We conclude that consecutive sentencing was appropriate.
Defendant is not entitled to relief as to this issue.
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CONCLUSION
Based on the foregoing, the judgments of the trial court are affirmed.
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THOMAS T. WOODALL, JUDGE
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