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Date: 07-01-2020
Case Style:
State of Tennessee v. Joseph Lester Haven
Case Number: W2018-01204-CCA-R3-CD
Judge: John Everett Williams
Court: COURT OF CRIMINAL APPEALS OF TENNESSEE
Plaintiff's Attorney: Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Tommy A. Thomas, District Attorney General; and James T. Cannon (at trial) and Melinda Meador (at sentencing and motion for a new trial), Assistant District Attorneys General
Defendant's Attorney:
Need help finding a lawyer for representation for contending that the State failed to establish venue, that the evidence was insufficient to support the verdicts, that the State improperly failed to elect the factual bases of the convictions, that the trial court improperly considered evidence of other bad acts included in the forensic interviews, that the forensic interviewer was not qualified under statute, and that the trial court erred in applying enhancement factors to his offenses in Tennessee?
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Description:
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Rape of a child and two counts of aggravated sexual battery
After the Defendant’s seven-year-old stepson and nine-year-old stepdaughter
disclosed that he had had sexual contact with them, the Defendant was charged with three
counts of rape of a child committed against his stepson and one count of rape of a child
and one count of aggravated sexual battery committed against his stepdaughter. Two of
the counts charging rape of a child of the Defendant’s stepson were dismissed prior to
trial. The Defendant waived his right to trial by jury, and a bench trial ensued. At trial,
the defense attempted to highlight inconsistencies in the statements and testimony given
by the victims and attempted to show that the victims had prior emotional problems and
prior sexual knowledge.
In a pretrial hearing, the Defendant sought to challenge the admissibility of the
video recordings of the forensic interviews of the victims. Ms. Sydni Turner, the forensic
interviewer who was employed by the Carl Perkins Center, a qualified child advocacy
center, testified that she had been deemed to meet the statutory qualifications for a
forensic interviewer in approximately ten prior court proceedings. Ms. Turner, who held
a bachelor’s degree in psychology, testified that at the time she conducted the interviews,
she had been an interviewer at the center for one year and had “worked with the center on
the various social work positions” for seven years. She had completed a minimum of
forty hours of forensic training in interviewing traumatized children and an annual fifteen
hours of continuing education. She had spent a minimum of eight hours interviewing
under the supervision of a qualified forensic interviewer of children and had knowledge
of child development through coursework, professional training, and experience. Ms.
Turner had no criminal history and had actively participated in peer review. On crossexamination, she described the role of a forensic interviewer. She testified that while she
would tell children that they were being observed through a video system, she did not
inform them that the recorded interview could be used in later legal proceedings. She did
not place children under oath during the interview but asked them to tell the truth.
The trial court found that Ms. Turner was qualified under the statute, noting that
the court was “sitting here looking … step-by-step on the statute.” The court observed
that she had a bachelor’s degree in psychology, a master’s degree in social work, and that
she had worked at the Carl Perkins Center for eight years, including one year as an
interviewer. After mentioning the other statutory requirements, the court found that Ms.
Turner qualified as a forensic interviewer under the statute. Defense counsel stated, “A
forensic interviewer is not defined by that statute. I don’t know exactly what that means.
But, based on those things … we would pass the witness.” The trial court stated that it
had reviewed both interviews and found that they possessed particularized guarantees of
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trustworthiness, taking into account the detailed responses of the victims and the
circumstances of the interview.
Because the trial court had found that the interviews would be admissible if the
victims were available for cross-examination, both parties at trial offered transcripts of
the forensic interviews as an aid to the factfinder. Defense counsel observed that he had
noted start and stop times on his “personal transcript” because the bulk of the video
interviews concerned matters occurring outside the county. Defense counsel stated that
the defense “would ask the Court to just consider the things just within those time
stamps.” The court observed that it had reviewed the videos in preparation for the
pretrial hearing and that the videos contained material “[t]hat would be inadmissible as it
pertains to this case, because it did not happen within Obion County. The Court is aware
that the essential elements necessary to prove this case will have had to be proven within
Obion County within the time frame.” The trial court agreed that certain incidents noted
by the defense did not occur within the county and further clarified:
THE COURT: So we’re looking at, really, Spring Creek?
[DEFENSE COUNSEL]: Spring Valley.
THE COURT: Spring Valley?
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: Okay. All right.
The Defendant’s stepson was eight years old at the time of trial. The Defendant’s
stepson affirmed that he had recently reviewed the video, that he had signed the disk on
which it was recorded, that the video was accurate, and that he had told the truth during
the interview. The State introduced the video of the stepson’s forensic interview, and the
defense began to note certain time stamps at which the video referenced inadmissible
evidence of other crimes, wrongs, or acts by the Defendant. The trial court responded,
“[W]ell, instead of telling me these things, just cue it up to where you want it to be….”
The parties attempted to reconcile different time indicators, and the defense indicated that
the first ten minutes of the interview were admissible, as well as other portions. The
record indicates, “Portion of video of interview of [stepson] played in open court.” After
further discussion attempting to reconcile the time stamps and an attempt to play a second
video which recorded the same interview from a different camera angle, the record again
indicates, “Portion of video of interview of [stepson] played in open court.” The record
further indicates that the parties discussed difficulty with the sound quality.1
Defense
counsel noted that the child had reviewed the video the previous day. Defense counsel
1
In another part of the record, the trial court noted that forwarding through the video would not
automatically forward the accompanying sound track.
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requested to begin cross-examination regarding the video, noting that “the video is
already in evidence.”
During the interview, the Defendant’s stepson stated that the Defendant had done
“bad stuff,” which he described as “N-U-T in butt.” The Defendant’s stepson elaborated
that at his house on Spring Valley, he had been playing a video game during the day
when the Defendant pulled him over by his hand and pulled his pants and underwear
halfway down. The Defendant pulled his own pants and underwear down. He stated that
he and the Defendant were lying on the couch and that he was on top of the Defendant.
His sister was watching something on the computer in the living room with headphones
and did not hear anything. The Defendant did “N-U-T in butt” by moving up and down.
On cross-examination at trial, the Defendant’s stepson acknowledged having said
that the Defendant had “halfway” pulled down the Defendant’s stepson’s pants and that
the Defendant’s own pants and underwear were pulled down. On further questioning, he
stated his pants were at his waist but not pulled all the way up. He acknowledged saying
they were on the couch and described lying in front of the Defendant. Asked to further
describe their positions, he stated he could not and then agreed that he was talking about
sitting in the Defendant’s lap. On further questioning, he stated that he was not in the
Defendant’s lap but that the Defendant was lying down and had pulled him over to lie
beside the Defendant. He stated his sister was watching television “[a]t the other side of
the couch.” She did not notice anything because the Defendant was under a blanket.
The Defendant’s stepson agreed that the Defendant had previously punished him
for being untruthful and stated he was punished through a “butt whooping” and was
angry with the Defendant.
Ms. Turner testified at trial regarding her interview with the victims at the Carl
Perkins Center. The Defendant’s stepson referred to the Defendant’s body part by
spelling “N-U-T.” A picture which the Defendant’s stepson drew and labeled “n-u-t”
was entered into evidence.
The Defendant’s stepdaughter likewise testified that she had reviewed the video of
her interview, that it was accurate, and that she told the truth during the interview. The
trial court asked, “For the record, are we going to watch the whole DVD?” The
prosecutor responded, “No, sir. I think we’ll cut it off –” The record indicates that a
portion of the interview was played, and the trial court noted “2:15[:]09[]… for the
record.” In a later discussion regarding a prior inconsistent statement, the trial court
inquired if the proffered statement was inconsistent with “the limited portion of what was
shown to me just now, which ended at 2:15[:]09 seconds?” After some testimony, the
trial court stated for the record that a portion of the interview beginning at 2:33 and
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ending at 2:36 would be played. These time stamps correspond to the Defendant’s
stepdaughter’s statements regarding incidents of abuse in Spring Valley on the video.
In the February 8, 2017, interview, the Defendant’s stepdaughter stated that she
and her family had moved to Spring Valley in the city of Obion “a few months” prior to
the interview but in the same school year. The Defendant’s stepdaughter said that the
Defendant “puts his body parts, his private parts in my butt.” She said that one time, she
went into her mother’s bedroom and the Defendant grabbed her and pulled her pants
down and put “his private part in my butt,” which “hurted.” She described the
Defendant’s private part. She stated that the Defendant held on to her hips and that she
could “feel his hair touching [her] butt.” She also stated that during this incident, he
touched her breasts on top of her nightclothes. She stated the Defendant was unclothed
and that she kicked the Defendant and got away. This incident occurred during
Christmas break. She said she then saw the Defendant do the same thing to her brother,
“humping him,” and that this occurred “next to [her].” She also told the interviewer that
on another occasion, on Spring Valley, the Defendant “touch [her] pee pee” with his
hands under her clothes “like this,” and that he was “rubbing it with my clothes on.”
The Defendant’s stepdaughter, who was ten years old at the time of trial, testified
that the Defendant anally penetrated her and that he was not wearing clothing. She then
testified both that she was and was not wearing clothing. She agreed that she had
previously testified she was wearing clothes and explained the discrepancy by saying,
“Because there’s more than one.” She agreed, however, that “there was only one time at
Spring Valley.” She recalled previously testifying that her pajama pants were up around
her waist and she recalled stating she did not know how the Defendant penetrated her if
her pants were still up. Responding to the trial court’s questions, she clarified that she
was wearing pajama bottoms and that the Defendant did not remove them or pull them
down. On redirect examination, the Defendant’s stepdaughter agreed she had stated
during the forensic interview that the Defendant “put his private parts in [her] butt,” but
she clarified that the Defendant did not penetrate her at the Spring Valley location but at
other locations. She said that on Spring Valley, the Defendant attempted to penetrate her.
The Defendant’s stepdaughter also testified that she saw something happen
between the Defendant and her brother. Asked if she had witnessed anything take place
between the Defendant and her brother on the couch, she said she had not. The
Defendant’s stepdaughter acknowledged that she had attempted suicide by jumping headfirst off of a balcony, but she denied that her imaginary friend was involved in the
incident and denied she had an imaginary friend. She then acknowledged that she had
previously testified that her imaginary friend told her to jump, and she recalled that her
imaginary friend was “Beth” but that her “real friend actually told [her] that no one is
there.” The Defendant’s stepdaughter affirmed that she said during her interview that the
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Defendant penetrated her anally and that she “could feel his hairs,” and she agreed that
she made that statement about another stepfather. She then denied that her other
stepfather ever raped her, clarifying that she thought defense counsel’s question was
about the Defendant.
The Defendant’s stepdaughter acknowledged that the Defendant spanked her and
that she was angry with him for doing so. She denied having threatened to accuse the
Defendant’s mother or father of inappropriately touching her.
The parties stipulated to the contents of a medical report made by Dr. Lisa Piercey,
who examined the victims on February 20, 2017. Dr. Piercey’s report summarized that
the Defendant’s stepdaughter reported that the Defendant began touching her
inappropriately when she was five years old and lived in Georgia. She told Dr. Piercey
that the Defendant made her touch his “pee-pee” and also touched her “pee-pee.” She
stated that the Defendant began to watch “videos of people putting their privates in butts”
after the family moved to California and that “that’s what he did to me.” She stated that
after the family moved to Tennessee, the Defendant penetrated her once anally and once
vaginally in Dyersburg and once anally “on Spring Valley.” She stated that she told him
to stop and that he responded, “just a little bit more,” and she described cleaning up “the
white stuff” afterwards. She told Dr. Piercey that she “saw him do it to [her] brother
once ... he was holding my brother down and doing this like (thrusts hips) with his ([the
Defendant’s]) pee-pee close to his ([her brother’s]) butt.” The Defendant’s stepdaughter
told Dr. Piercey that no one else had sexually abused her. Dr. Piercey found no trauma
and concluded that her assessment was “[c]hild sexual abuse,” noting that “[t]he finding
of no acute trauma or residua of trauma is to be expected, given the child’s description of
the events and length of time since the last episode.”
Dr. Piercey’s report summarized the Defendant’s stepson’s allegations that the
Defendant “touched my ‘P’ with his hand once and then touched my butt with his ‘P’, a
bunch of times.” The Defendant’s stepson stated that the touching had occurred once or
twice out of the state, one time in Dyersburg, and three times “where we live now.” The
Defendant’s stepson stated that the Defendant had put lotion called “Your Own Body” on
his penis prior to penetration. The Defendant’s stepson told Dr. Piercey that two other
people, one in Tennessee and one in California, had sexually abused him, but stated, “I
don’t want to tell you about those.” Dr. Piercey again concluded that her assessment was
“[c]hild sexual abuse” and noted that “[t]he finding of no acute trauma or residua of
trauma is to be expected, given the child’s description of the events and length of time
since the last episode.”
The Defendant presented the testimony of Ms. Tina Haven, the Defendant’s
mother. Ms. Haven worked with the victims’ mother at a fabric store in 2011. The
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Defendant met the victims’ mother, who was at the time married to another man, through
Ms. Haven in 2013. Ms. Haven testified that in 2013, she was in the victims’ home when
the Defendant’s stepdaughter asked for some snack cakes from the counter. The victims’
mother was in the bathroom, and Ms. Haven told the Defendant’s stepdaughter that she
could not have the cakes. The Defendant’s stepdaughter told Ms. Haven, “[I]f you don’t
give me those snack cakes I’m going to tell … everybody that you touched me.” Ms.
Haven elaborated that the Defendant’s stepdaughter intended to tell others that Ms.
Haven “had put my fingers into her pee-pee and grabbed her – and grabbed her breasts.”
The victims’ mother “laughed it off” when Ms. Haven told her what had happened.
Ms. Haven testified that the Defendant’s stepdaughter made such threats on
numerous occasions. At Ms. Haven’s granddaughter’s fourth birthday party, Ms. Haven
noticed that the Defendant’s stepdaughter was not outside with the guests. She went into
the home where the presents had been taken, and she heard the Defendant’s stepdaughter
threaten to “tell everybody [the Defendant’s father] touched” her unless he permitted her
to play with one of the presents. The victims’ mother was told about the incident and
said to the child, “[W]hat did I tell you about doing that[?] … [O]nly with something
big.” Mr. Joseph Haven, Sr., the Defendant’s father, gave testimony confirming this
incident.
Ms. Haven further testified about an instance during which the Defendant’s
stepdaughter was watching pornography. Ms. Haven was dropping her granddaughter off
in the early morning hours for the victims’ mother to babysit, and the Defendant’s
stepdaughter was awake and watching pornography, asserting that her mother permitted
her to watch it whenever she wanted.
The Defendant testified and denied any inappropriate contact with either of the
victims. He testified that he had been a cyber network operator in the Marine Corps prior
to his general discharge under honorable conditions after conflicts with a superior officer.
He worked for the victims’ mother as a nanny before she divorced her husband and
married the Defendant. He also had physical custody of a daughter who was born when
he was sixteen, but his parents obtained guardianship of her when he went into the
Marines. He and the victims’ mother were married and lived in California, then moved
to Dyersburg.
The Defendant testified that both victims had behavioral problems that predated
his acquaintance with the family. His stepson was sent home multiple times with letters
detailing misbehavior including hitting teachers, hitting the bus driver, and throwing
things. His stepdaughter was suicidal, and the school alerted the parents to repeated
instances of self-harm. He testified that he and the victims’ mother had a difficult
relationship in part because he attempted to introduce discipline into the household. He
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said that the victims’ mother had threatened to shoot him with a handgun she kept in a
safe.
The Defendant speculated that his stepson accused him of rape at the victims’
mother’s prompting and because she had promised him the reward of an Xbox. He
related an incident in which his stepson and a preteen child had watched pornography on
his stepson’s telephone in a closet. About a month later, the victims’ mother told the
Defendant that someone else had accused the preteen of sexual misconduct with a
younger child. They decided to question the stepson, and he stated that the preteen had
put his “N-U-T” into the Defendant’s stepson’s “butt.” The Defendant explained that “NU-T” was his stepson’s word for penis.
The Defendant believed that his stepdaughter accused him of sexual misconduct
because she disliked him. He elaborated that if she threw a tantrum, he would give her a
“butt whooping,” explaining, “if you want to hurt yourself, let me help.” The Defendant
acknowledged that he had two non-judicial punishments in the military.
The trial court recessed to deliberate on the evidence and found the Defendant
guilty of the rape of his stepson. Regarding the count charging the rape of the
Defendant’s stepdaughter, the State agreed that a finding of penetration was not
supported by the record. The trial court acquitted the Defendant of the offense and of the
lesser-included offense of attempted rape of a child. The trial court found the Defendant
guilty of the lesser-included offense of aggravated sexual battery based on his
stepdaughter’s assertion in the forensic interview that the Defendant grabbed her breast
area. The trial court found the Defendant guilty of an additional count of aggravated
sexual battery based on his stepdaughter’s statement in the recording that the Defendant
touched her vaginal area over her clothing on Spring Valley.
At sentencing, the victims’ mother testified that the Defendant’s stepdaughter was
severely depressed and had suicidal tendencies as a result of the abuse, resulting in
hospitalization for her mental health. The Defendant’s stepson was angry and felt
betrayed. She testified that she had trouble trusting babysitters with the victims or
allowing the victims to go anywhere. She acknowledged that she had received $3,000
from the State of Tennessee in a victims’ fund. The prosecutor noted that the discharge
papers introduced into evidence reflected that the Defendant’s service was “general under
honorable conditions” but the reason for separation was a “pattern of misconduct.”
The trial court applied as enhancement that the offense involved more than one
victim, that the victims were particularly vulnerable due to age, and that the offenses
were committed to gratify the Defendant’s desire for pleasure and excitement. See
T.C.A. § 40-35-114(3), (4), (7). The trial court found no mitigating factors. The trial
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court noted that the Defendant’s stepson appeared extremely credible in his testimony.
The trial court found that the Defendant was convicted of multiple offenses involving the
sexual abuse of a minor and noted the circumstances were aggravated due to the
relationship of the Defendant and the victims. See T.C.A. § 40-35-115(b)(5). The trial
court sentenced the Defendant to serve thirty years with a one hundred percent release
eligibility date for the rape of a child conviction. The trial court sentenced the Defendant
to serve ten years for each aggravated battery conviction, to be served concurrently with
one another and consecutively to the rape of a child conviction, for an effective sentence
of forty years.
The Defendant filed a motion for a new trial. Among other issues, he argued that
the evidence was insufficient to support the verdict, that the State did not elect a
particular date for the offenses, that the forensic interviews should not have been
admitted into evidence and should now be redacted, and that the trial court misapplied
enhancement factors. The motion for a new trial was denied, and the Defendant appeals.
ANALYSIS
I. Venue
The Defendant asserts that the State failed to prove venue by a preponderance of
the evidence. The State asserts that the Defendant waived the issue by failing to object at
trial, that the location was subject to judicial notice, and that the Defendant essentially
stipulated venue. We conclude that the State presented evidence sufficient to establish
venue by a preponderance of the evidence for the conviction of rape of a child and the
conviction of aggravated sexual battery based on the Defendant’s touching his
stepdaughter’s vaginal area. Because there was nothing in the record to establish venue
for the aggravated sexual battery conviction based on the Defendant’s touching his
stepdaughter’s breast area in Count 4, that conviction is reversed.
The accused has the right to be tried by an impartial jury in the county in which
the crime was committed. Tenn. Const. art. I, § 9; Tenn. R. Crim. P. 18(a). Although
venue is jurisdictional, it is subject to waiver in certain circumstances. Ellis v. Carlton,
986 S.W.2d 600, 601-02 (Tenn. Crim. App. 1998) (a motion for change of venue,
consenting to trial in another county, failing to stand on a motion for judgment of
acquittal in conjunction with a failure to cite to the record, and entering a guilty plea
could constitute waiver of venue). However, proceeding to trial on the merits of a case
does not, in itself, amount to waiver. State v. Anderson, 985 S.W.2d 9, 14-15 (Tenn.
Crim. App. 1997) (citing Clariday v. State, 552 S.W.2d 759, 770 (Tenn. Crim. App.
1976)). The State bears the burden of proving venue by a preponderance of the evidence,
and slight evidence is enough to carry the burden if it is uncontradicted. Ellis, 986
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S.W.2d at 602. Venue may be established by direct or circumstantial evidence and is a
question for the finder of fact, who may draw reasonable inferences from the evidence.
State v. Trusty, 326 S.W.3d 582, 597 (Tenn. Crim. App. 2010) (citing State v. Young, 196
S.W.3d 85, 101-02 (Tenn. 2006)).
Although the Defendant did not raise the issue of venue in his motion for a new
trial, a motion for a new trial is not required when the Defendant has elected to proceed
with a bench trial. State v. Norman Eugene Banks, No. M2008-01823-CCA-R3-CD,
2010 WL 2943115, at *3 (Tenn. Crim. App. July 26, 2010) (noting that a motion for a
new trial was not required in a bench trial). The Defendant also did not object to the
issue of venue at trial. In State v. Anderson, this court concluded that the Defendant’s
failure to object to venue at trial did not amount to waiver of venue. 985 S.W.2d at 15.
Likewise, in State v. Martinos Derring, this court observed that “a defendant is not
required to raise the issue of venue prior to trial” or “to raise the issue of venue in the
motion for new trial to preserve the issue for appeal.” No. W2017-02290-CCA-R3-CD,
2019 WL 244471, at *3 (Tenn. Crim. App. Jan. 16, 2019), perm. app. denied (Tenn. May
17, 2019) (citing Anderson, 985 S.W.2d at 15). The court in Martinos Derring noted that
a jurisdictional failing may be addressed at any time during the pendency of the case. Id.
(citing Tenn. R. Crim. P. 12(b)(2)); see State v. Turner, 919 S.W.2d 346, 358 (Tenn.
Crim. App. 1995) (noting that the issue of venue was waived for failure to cite to the
record and for failure to raise the issue below, but concluding that because venue was
jurisdictional and because the court was required to determine jurisdiction, the issue
would be considered on the merits); but see State v. Kenneth Fleming, No. W2016-
01017-CCA-R3-CD, 2018 WL 1762208, at *6 (Tenn. Crim. App. Apr. 12, 2018)
(concluding that the defendant waived venue issue by failure to raise it in the motion for a
new trial and by couching the issue in terms of a sufficiency of the evidence argument);
State v. Wayne Boykin, No. W2010-00719-CCA-R3-CD, 2011 WL 4449671, at *7 (Tenn.
Crim. App. Sept. 26, 2011) (same). We conclude that we cannot distinguish Anderson, a
reported opinion, and that the Defendant’s claim is not waived. Tenn. S. Ct. R. 4(G)(2)
(“Opinions reported in the official reporter, however, shall be considered controlling
authority for all purposes unless and until such opinion is reversed or modified by a court
of competent jurisdiction.”).
In Martinos Derring, the evidence of the location of the offense included street
names, the intersections where the crimes took place, the fact that the responding
authorities included the Memphis Police Department and Memphis Housing Authority,
and an officer’s testimony that the crime occurred within his precinct. 2019 WL 244471,
at *4. Observing that “[t]his court has previously interpreted Tennessee Rule of Evidence
201 to permit a jury, whether requested or not, to notice facts ‘generally known within
the territorial jurisdiction of the trial court,’” the panel in Martinos Derring concluded
that the evidence was sufficient for the jury to infer that the crime occurred in the county.
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Id. (quoting State v. Ellis, 89 S.W.3d 584, 598 (Tenn. Crim. App. 2000)). Likewise, in
State v. Ellis, the evidence included the street address of the crimes, the fact that they
occurred in the city of Gallatin, and documents reflecting that the Sumner County
Chancery Court was located in Gallatin. 89 S.W.3d at 598. Noting that under Tennessee
Rule of Evidence 201, the jury, whether requested or not, could infer facts generally
known within the territorial jurisdiction of the trial court, this court concluded that venue
in the county was sufficiently established. Id.; see State v. Chris Smith, No. 03C01-9807-
CR-00259, 1999 WL 619042, at * 2 (Tenn. Crim. App. Aug. 17, 1999) (concluding that
evidence regarding the city in which the crimes took place could allow the jury to
determine the county of the offense); State v. Jerry Walden, No. 03C01-9409-CR-00330,
1995 WL 506036, at *3 (Tenn. Crim. App. Aug. 24, 1995) (“Thus, the jury (citizens of
Campbell County) could take notice of the location of one of the largest cities in the
county.”); but see State v. Morrieo Allen, No. W2018-01339-CCA-R3-CD, 2020 WL
883126, at *4 (Tenn. Crim. App. Feb. 21, 2020), perm. app. filed (Apr. 21, 2020); State v.
Young, 617 S.W.2d 661, 663 (Tenn. Crim. App. 1981) (the court could not take judicial
notice of the county in which a city was located when the city spanned two counties).
In the case at bar, prior to the introduction of the forensic interviews, the
Defendant asked the trial court to limit its consideration to the sections of the interviews
that related to offenses occurring within the county. In response, the trial court noted that
the victims mentioned inadmissible incidents occurring in Dyersburg and Yorkville, and
the trial court noted that it was aware that it could only consider events that occurred in
Obion County. The trial court clarified with defense counsel, “So we’re looking at,
really, Spring Creek?” Defense counsel responded, “Spring Valley.” The Defendant’s
stepson stated during the interview that the Defendant interrupted his video game and
raped him on the couch when he was seven years old at his house on Spring Valley.2
The
Defendant’s stepdaughter told the interviewer that she and her family lived on Spring
Valley in the city of Obion, and she named the elementary school she attended. She
stated that one time on Spring Valley, the Defendant “touched [her] pee pee” by rubbing
it. Ms. Turner testified that some of the allegations took place in Obion County. We
conclude that the evidence regarding the location of these offenses, evidence which
included testimony about the street address where the offenses occurred, and the city in
which they occurred, the school the victims attended, was sufficient to allow the
factfinder to infer, pursuant to facts generally known within the territorial jurisdiction,
that the offenses occurred in Obion County, and indeed, counsel agreed at trial that the
Spring Valley address was located within the county. See Martinos Derring, 2019 WL
244471, at *4 (citing Tennessee Rule of Evidence 201).
2 The Defendant’s speculation that his stepson’s testimony regarding the rape on Spring Valley
might refer to another Spring Valley in Weakley County, where he contends the forensic interviews took
place, has no support in the record. We note that there is no evidence in the record regarding the location
of the interviews.
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The remaining count of aggravated sexual battery was based on an incident which
the Defendant’s stepdaughter described during the interview. During the interview, she
stated that the Defendant put his “private part in [her] butt” when she was on Christmas
break “a couple of months” prior to the interview. She explicitly described being
penetrated. She told the interviewer that during this assault, the Defendant also touched
her breasts. She did not state during the interview that the assault took place at the Spring
Valley address. At trial, her testimony was that the Defendant did not put “his privates
into [her] butt” on Spring Valley. She clarified that there were other occasions when the
Defendant penetrated her but that her statements about the rape in the interview
concerned an event “[t]hat wasn’t when we were in Spring Valley.” The trial court
acquitted the Defendant of rape of a child regarding this incident but convicted him of
aggravated sexual battery for touching his stepdaughter’s breasts during the assault. We
conclude that while the record contains evidence from which it could be inferred that the
offenses at the Spring Valley home occurred in Obion County, the record does not
support the conclusion that the touching that was the basis of this conviction occurred at
the Spring Valley home. The Defendant’s stepdaughter’s testimony at trial clarified that
the incident she had described, which formed the basis of the charge, occurred elsewhere.
We conclude that venue was not established by a preponderance of the evidence as to this
conviction, and we accordingly reverse the conviction. See State v. Hutcherson, 790
S.W.2d 532, 535 (Tenn. 1990) (remanding for a retrial after failure to prove venue
because venue did not constitute an element of the offense but was necessary only to
establish jurisdiction); State v. Gene Allan Logue, No. W1999-01795-CCA-R3-CD, 2000
WL 1843248, at *3 (Tenn. Crim. App. Dec. 15, 2000).
II. Sufficiency of the Evidence
The Defendant also challenges the sufficiency of the evidence, arguing that the
testimony of the stepchildren was not credible, that their testimony was not consistent,
and that the trier of fact could not have found the elements of the offense beyond a
reasonable doubt in the absence of medical proof. We conclude that the evidence is
sufficient to support the verdicts.
This court must set aside a finding of guilt if the evidence is insufficient to support
the finding by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P.
13(e). The question before the appellate court is whether, after reviewing the evidence in
the light most favorable to the State, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. State v. Pope, 427 S.W.3d
363, 368 (Tenn. 2013). This court will not reweigh or reevaluate the evidence, and it
may not substitute its inferences drawn from circumstantial evidence for those drawn by
the trier of fact. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014). The jury’s guilty
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verdict, approved by the trial judge, accredits the State’s witnesses and resolves all
conflicts in favor of the prosecution. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).
The trier of fact is entrusted with determinations concerning witness credibility, factual
findings, and the weight and value of evidence. Smith, 436 S.W.3d at 764. In reviewing
the sufficiency of the evidence, we afford the State the strongest legitimate view of the
evidence and all reasonable inferences that can be drawn from the evidence. State v.
Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). “A verdict of guilt removes the
presumption of innocence and replaces it with a presumption of guilt, and on appeal the
defendant has the burden of illustrating why the evidence is insufficient to support the
verdict rendered by the jury.” Reid, 91 S.W.3d at 277.
Rape of a child is “the unlawful sexual penetration of a victim by the defendant or
the defendant by a victim, if the victim is more than three (3) years of age but less than
thirteen (13) years of age.” T.C.A. § 39-13-522(a). “Sexual penetration” includes
“sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however
slight, of any part of a person’s body or of any object into the genital or anal openings of
the victim’s, the defendant’s, or any other person’s body, but emission of semen is not
required.” T.C.A. § 39-13-501(7).
Aggravated sexual battery, as it relates to the Defendant’s convictions, is
“unlawful sexual contact with a victim by the defendant” when the victim is less than
thirteen years old. T.C.A. § 39-13-504(a)(4). “Sexual contact” is defined as “the
intentional touching of the victim’s . . . intimate parts, or the intentional touching of the
clothing covering the immediate area of the victim’s . . . intimate parts, if that intentional
touching can be reasonably construed as being for the purpose of sexual arousal or
gratification.” T.C.A. § 39-13-501(6). Intimate parts include “the primary genital area,
groin, inner thigh, buttock or breast.” T.C.A. § 39-13-501(2). Whether the contact is for
the purpose of sexual arousal or gratification is a question of fact for the factfinder to
determine. State v. Creed Gettys Welch, No. M2016-01335-CCA-R3-CD, 2019 WL
495117, at *5 (Tenn. Crim. App. Feb. 8, 2019), no perm. app. filed (citing cases); see
State v. Clark, 452 S.W.3d 268, 298 (Tenn. 2014).
The Defendant’s stepson stated that when they lived on Spring Valley, the
Defendant interrupted his video game, partially removed their clothing, and made him lie
on the couch. The Defendant’s stepson stated that the Defendant then did “N-U-T in
butt” while the Defendant was moving up and down. The Defendant testified that “N-UT” was his stepson’s word for penis, and a drawing made by the Defendant’s stepson to
define “N-U-T” was introduced. See State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001)
(noting that penetration is a question of fact and concluding that the factfinder “obviously
resolved the inconsistencies in the State’s favor and concluded that [the defendant’s] acts
involved invasion of the genital opening.”). The Defendant’s stepdaughter stated that one
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time in Spring Valley, the Defendant rubbed her “pee-pee” under her clothes while her
clothes were on. While we have reversed Count 4 for failure to prove venue, the
Defendant’s stepdaughter also stated in the interview that the Defendant grabbed her
breasts when he penetrated her. We conclude that the evidence is sufficient to establish
the elements of the offenses.
To attack his stepdaughter’s credibility, the Defendant points to the testimony of
Ms. Haven and Mr. Haven, Sr., that the Defendant’s stepdaughter had threatened to make
prior false accusations of sexual abuse and had been exposed to pornography. Regarding
his stepson’s accusations, he points to evidence that his stepson was exposed to
pornography, and he highlights evidence from an offer of proof that a preteen child had
abused his stepson. However, this court does not reweigh the credibility of witnesses.
Smith, 436 S.W.3d at 764. The trial court heard all of the evidence at trial and made a
credibility determination in favor of the victims, and this court will not substitute its
judgment for that of the trier of fact. Id.
The Defendant also points to his stepdaughter’s inconsistent testimony regarding
the role of her imaginary friend, regarding whether she was clothed, and regarding
whether she was penetrated at the Spring Valley address. He argues that his stepson’s
testimony was inconsistent because he stated alternatively that his sister was on the
computer or watching television. The Defendant likewise notes his stepson’s difficulty in
describing how the two were lying on the couch, and he asserts that it is not believable
that his stepdaughter could have been watching television in close proximity to the rape
without noticing it. However, inconsistent testimony may only be the basis for
overturning a verdict when “inaccuracies or inconsistencies … ‘are so improbable or
unsatisfactory as to create a reasonable doubt of the [defendant’s] guilt.’” State v. Elkins,
102 S.W.3d 578, 582-83 (Tenn. 2003) (quoting State v. Radley, 29 S.W.3d 532, 537
(Tenn. Crim. App. 1999)). Here, the trial court acquitted the Defendant of the rape of his
stepdaughter but chose to credit the victims’ testimony regarding the other offenses. The
inconsistencies were not so improbable or unsatisfactory as to create reasonable doubt as
a matter of law.
The Defendant also argues that the lack of medical proof undermined the
sufficiency of the evidence. The doctor who examined the victims found no evidence of
trauma but concluded that her findings were “to be expected” due to the elapsed time
between the abuse and the examination. The Defendant complains that the doctor’s
assessment of “child sexual abuse” was not supported by the physical evidence.
However, the trial court was aware that there were no medical findings to corroborate the
testimony. The absence of physical evidence does not require overturning the verdict
because “there is no requirement that the victim’s testimony be corroborated.” State v.
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Smith, 42 S.W.3d 101, 106 (Tenn. Crim. App. 2000). We conclude that the evidence is
sufficient to support the verdicts.
III. Election
The Defendant next asserts that the State presented evidence of multiple offenses
and failed to elect the offenses on which it would proceed. The State responds that this
claim is waived and that the Defendant is not entitled to plain error relief. We agree that
this issue has been waived and that the Defendant is not entitled to relief.
“The election doctrine refers to the prosecutor’s duty in a case where evidence of
multiple separate incidents is introduced to elect for each count charged the specific
incident on which the jury should deliberate to determine the defendant’s guilt.” State v.
Qualls, 482 S.W.3d 1, 9 (Tenn. 2016). The requirement of election ensures that the
defendant is able to defend against a particular charge, protects a defendant against
multiple prosecutions for the same offense, and enables the appellate court to determine
the sufficiency of the evidence. State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000).
However, “[t]he primary purpose for the election requirement is to ensure that the jury is
deliberating about a single instance of alleged criminal conduct so that the jury may reach
a unanimous verdict.” State v. Smith, 492 S.W.3d 224, 236 (Tenn. 2016).
The Defendant did not argue prior to appeal that the State was required to make an
election based on the introduction of evidence of more than one offense. We conclude
that the issue is waived. See id.at 232; State v. Knowles, 470 S.W.3d 416, 423 (Tenn.
2015). While “errors pertaining to the sufficiency of the prosecution’s election are
subject to plain error review,” the Defendant here has not requested plain error review.
Id. at 424 (concluding the defendant was not entitled to plain error relief when the State
provided an inaccurate election regarding the type of penetration); see Smith, 492 S.W.3d
at 239 (concluding that the defendant was entitled to plain error relief); State v. Kendrick,
38 S.W.3d 566, 569 (Tenn. 2001) (noting that the court has “stressed that the election
requirement is a responsibility of the trial court and the prosecution and, therefore, does
not depend on a specific request by a defendant”).
In any event, the Defendant would not be able to show that a clear and
unequivocal rule of law was breached or his substantial rights violated. See State v.
Bishop, 431 S.W.3d 22, 44 (Tenn. 2014). Because the Defendant elected to proceed with
a bench trial, he cannot claim that his constitutional right to a unanimous jury verdict was
violated. See Tenn. Const. art I, § 6; State v. Lemacks, 996 S.W.2d 166, 169-70 (Tenn.
1999). Insofar as the Defendant asserts that his convictions do not provide him with
protection from future prosecution because it is unclear which event is the basis for each
conviction, the record contradicts his assertion. The State only offered proof of one rape
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of the Defendant’s stepson that occurred in Spring Valley. Accordingly, the State was
not required to make an election regarding this offense. Adams, 24 S.W.3d at 294
(“When the evidence does not establish that multiple offenses have been committed,
however, the need to make an election never arises.”). In rendering its ruling, the trial
court clearly identified the factual bases for the two convictions for aggravated sexual
battery: the Defendant’s touching of his stepdaughter’s breasts on one occasion and his
touching of her vaginal area on another occasion. The Defendant is not entitled to relief.
IV. Admissibility of the Forensic Interviews
The Defendant asserts that the forensic interviews were improperly admitted
because they contained inadmissible evidence of other crimes, wrongs, or bad acts and
because the State failed to show that the forensic interviewer was qualified under statute.
We conclude that both issues are waived and that the Defendant is not entitled to relief.
A. Record on Appeal
Initially, we note the Defendant asserts that this court cannot consider the forensic
interviews as evidence on appeal because the record is not clear regarding which portions
of the interviews were actually played during the victims’ testimony at trial. The trial
transcript reflects that the videos were entered as exhibits in their entirety and that the
trial court agreed with defense counsel that the court would only consider the portions of
the videos describing events occurring within the county. The transcript reflects that
portions of the interview with the Defendant’s stepson were played. Defense counsel
requested to cross-examine the Defendant’s stepson without viewing the entire forensic
interview due to technical difficulties. The transcript also reflects that a portion of the
interview of the Defendant’s stepdaughter was played up to the 2:15:09 time stamp and
that a subsequent portion, from 2:33 to 2:36 on the time stamp, was played later.
The Defendant filed a motion in this court to “correct or modify” the record,
asserting that the videos of the forensic interviews, which were admitted as exhibits in
their entirety, should essentially be stricken from the record because the transcripts did
not reflect which exact portions were played at trial and because the court reporter was
unable to hear the audio on her recordings in order to clarify what was admitted into
evidence. This court remanded the matter for the trial court for a determination of what
was properly includable in the record. On remand, the trial court filed an order noting
that, prior to the bench trial, it had reviewed the videos in their entirety as part of a
pretrial motion hearing. The trial court found that the Defendant challenged the
admissibility of some statements on the videos and that it was “determined that the Court
would consider only the relevant portions,” or events which occurred within the county.
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The order further stated, “The Court finds all of the videos were played at the Trial and
such were entered with agreement to only consider” the relevant portions.
The Defendant did not request a redaction of the videos at trial and instead
acquiesced in the suggestion that the trial court, which had already reviewed the videos in
their entirety, would only consider the relevant portions in making its factual findings.
The videos were admitted as exhibits in their entirety. We conclude that the Defendant
cannot now claim that the video evidence is not part of the record before us. See Tenn.
R. App. P. 36(a) (“Nothing in this 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.”).3
Accordingly, we decline
his invitation to exclude the evidence from our consideration.
B. Tennessee Rule of Evidence 404(b)
The Defendant asserts that the trial court, sitting as the trier of fact, heard
allegations of misconduct which occurred outside the county, and that this entitles him to
a new trial. He argues that the trial court’s order on remand indicates that it viewed the
entirety of the videos despite having determined that the portions of the videos were
inadmissible. He notes that the trial court did not comply with Tennessee Rule of
Evidence 404(b) in holding a hearing and determining which portions of the interview
would be admissible, and he speculates that the trial court may have considered some of
the evidence of events happening outside the county in rendering its decision. We
conclude that the Defendant received a favorable ruling on the 404(b) issue and that any
other challenge on these grounds is waived.
We observe that the Defendant challenged the evidence related to events in
locations other than Obion County and that the trial court ruled that such evidence would
be inadmissible under Rule 404(b). The Defendant’s argument is not based on the trial
court’s ruling under Rule 404(b), a ruling which was in fact favorable to him, but instead
is based on speculation that the trial judge, who had already seen the videos in their
entirety in a pretrial hearing, considered the entirety of the videos in his role as factfinder
at trial. However, the Defendant did not raise this issue below, instead acquiescing in the
trial court’s determination that the court would only consider the events occurring in the
county.
3 We note that, while the statute requires a protective order preventing disclosure or dissemination
of the videos, preventing them from becoming public record, and requiring that they be sealed following
the conclusion of the criminal proceedings, the Defendant’s contention that the trial court failed to comply
with these statutory requirements would not entitle him to relief on his conviction, nor would it remove
the videos from our consideration. See T.C.A. § 24-7-123(e).
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At trial, defense counsel told the court that he had made note of time stamps of the
relevant events, and that the Defendant “would ask the Court to just consider the things
just within those time stamps.” The defense submitted as an aid to the trial court a
transcription of the interviews in their entirety. The trial court, noting that it had
reviewed the entire video in a pretrial hearing, observed that any event outside the county
“would be inadmissible as it pertains to this case, because it did not happen within Obion
County. The Court is aware that the essential elements necessary to prove this case will
have had to be proven within Obion County within the time frame.” The Defendant
agreed and noted that certain testimony about “Pickle Street” fell outside the county. The
trial court clarified:
THE COURT: So we’re looking at, really, Spring Creek?
[DEFENSE COUNSEL]: Spring Valley.
THE COURT: Spring Valley?
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: Okay. All right.
During trial, the Defendant wished to cross-examine his stepson regarding the
interview and attempted to list the time stamps for the court, which requested the defense
to simply play the pertinent parts. Because defense counsel encountered technical
difficulties, defense counsel requested the court to allow him to cross-examine the
witness after having played portions of the video. The record likewise indicates that only
portions of the video interview of the Defendant’s stepdaughter were played. The record
reflects that the Defendant requested the court to only consider the acts that were
pertinent to the charged crimes and that he acquiesced in the trial court’s determination
that, despite having viewed the videos prior to trial, it would only consider the allegations
in Obion County. The defense submitted, as an aid to the trial court, transcripts of the
interviews which included the inadmissible material. The Defendant cannot complain for
the first time on appeal that the trial court might have been influenced by the inadmissible
portions of the videos. See Tenn. R. App. P. 36(a); State v. Johnson, 970 S.W.2d 500,
508 (Tenn. Crim. App. 1996) (“Issues raised for the first time on appeal are considered
waived.”). This issue is waived.
The Defendant also objects to the fact that the videos were admitted into evidence
unredacted. This issue is likewise waived. The prosecution moved the videos of the
interviews into evidence without objection. Due to technical difficulties playing one
video in preparation to cross-examine the Defendant’s stepson, defense counsel asked,
“Well, can’t I just ask him questions about what -- I mean, the video is already in
evidence.” The Defendant never requested the interviews to be redacted for the purposes
of trial, and he never offered redacted versions of the interviews to be put into evidence.
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Accordingly, he has waived any objection to the interviews being made exhibits in their
entirety. See Tenn. R. App. P. 36(a).
C. Admissibility of the Interviews Under Statute
The Defendant also asserts that the interviews themselves were inadmissible
because Ms. Turner did not meet the statutory requirements for a forensic interviewer.
We agree with the State that this argument is waived because it cannot be raised for the
first time on appeal.
Tennessee Code Annotated section 24-7-123 governs the admissibility of forensic
interviews at trial. The statute allows the interview to be admitted as substantive
evidence if: the child affirms under oath that the video is a true and correct recording and
the child is available for cross-examination; the video “is shown to the reasonable
satisfaction of the court, in a hearing conducted pretrial, to possess particularized
guarantees of trustworthiness”; the interview was conducted by a forensic interviewer
meeting certain requirements; the interview is recorded audio and visual content; the
entire interview is recorded and the recording is unaltered and accurately reflects the
interview; and every voice heard on the recording is identified. T.C.A. § 24-7-123(b)(1)-
(6). The requirements for the interviewer are that the interviewer:
(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;
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(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;
(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;
T.C.A. § 24-7-123(b)(3).
The only qualification at issue4
is whether Ms. Turner had the equivalent to three
years of full-time, professional work in either child protective services, criminal justice,
clinical evaluation, counseling, or forensic interviewing or other comparable work with
children. T.C.A. § 24-7-123(b)(3)(C). Noting that Ms. Turner only testified to one year
of experience as a forensic interviewer, the Defendant contends that her testimony that
she had worked in “various social work positions” at the Carl Perkins Center for seven
years was insufficient to establish the statutory requirements, and he asserts that whatever
her position may have been “we know it was not professional work.” He asserts that she
did not meet the statutory definition of social worker and that she was accordingly not
performing social work. See T.C.A. § 63-23-113(a).
At the hearing, the prosecutor elicited the following testimony:
Q. Okay. The next qualification it talks about is had experience equivalent
to three years of full time professional work in one or a combination of the
following areas such as child protective services, criminal justice, clinical
evaluation[,] counseling[,] or forensic interviewing.
A. Yes, sir.
Q. And what -- how do you qualify under that?
4 While the Defendant is correct that the trial court erroneously commented that Ms. Turner had a
Master’s degree in social work when her resume showed that she was merely working toward that degree,
he does not contend that she did not meet the statutory educational requirements, as the record reflects
that she held a bachelor’s degree in psychology.
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A. Based on the date of the forensic interview, I had been an interviewer
for one year. And then I’ve worked with the center on the various social
work positions for seven years.
On cross-examination, defense counsel questioned Ms. Turner further about the
continuing education requirements, the definition of forensic interview, and whether the
victims were aware that the recorded interview might be used in later legal proceedings.
He never questioned her further about her experience in the statutorily defined fields.
The trial court determined that it would find her qualified under the statute, observing,
“I’m sitting here looking at step-by-step on the statute.” The trial court noted Ms. Turner
met each requirement, including that she had worked for the Carl Perkins Center for eight
years. Trial counsel observed, “A forensic interviewer is not defined by that statute. I
don’t know exactly what that means. But, based on those things, Your Honor, we would
— we would pass the witness.”
We conclude that the Defendant’s objection to Ms. Turner’s qualification in this
regard is waived. The Defendant requests plain error review, which requires the court to
find the following factors: 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. Bishop, 431 S.W.3d at 44 (citing State v. Adkisson, 899 S.W.2d 626, 641-42
(Tenn. Crim. App. 1994)). We conclude that, based solely on the record before us, the
Defendant cannot establish that a clear and unequivocal rule of law was breached.
At the hearing, Ms. Turner testified that she met the three-year requirement by
having been employed for one year as a forensic interviewer and having “worked with
the center on the various social work positions for seven years.” While she did not
specify which statutory field or fields her employment fell under, she did testify that her
seven years’ employment had qualified her under the statute at issue and that she had
been deemed qualified in prior court proceedings. Defense counsel had the opportunity
to cross-examine her regarding which of the statutory fields her work experience fell into,
and he chose not to pursue this line of questioning. Accordingly, there is no evidence in
the record on appeal that the admission of the forensic interviews breached a clear and
unequivocal rule of law based on the qualifications of the interviewer under the statute.
Instead, Ms. Turner’s testimony was that she was qualified under the statute by her work
experience consisting of one year of forensic interviews and work with the center in
various social work positions for seven years. The Defendant is not entitled to relief.
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V. Sentencing
The Defendant asserts that the trial court erred in determining the length of his
sentences because it misapplied enhancement factors. He argues that there was no proof
that there was more than one victim or that the victims were particularly vulnerable due
to their age, and he asserts that the enhancement factor that the crime was committed to
gratify the Defendant’s desire for pleasure or excitement was an element of aggravated
sexual battery and not established with regard to the rape of a child conviction. The State
concedes that some enhancement factors were misapplied but urges us to uphold the
sentence on appeal.
The trial court enhanced the Defendant’s sentences based on its finding that the
offenses involved more than one victim, that the victims were particularly vulnerable
because of age or physical or mental disability, and that the offenses were committed to
gratify the Defendant’s desire for pleasure or excitement. See T.C.A. § 40-35-114(3),
(4), (7). The parties agree that application of the multiple victim enhancement was
improper. See T.C.A. § 40-35-114(3); State v. Imfeld, 70 S.W.3d 698, 706 (Tenn. 2002)
(“[T]here cannot be multiple victims for any one offense of aggravated assault committed
against a specific, named victim.”). Likewise, the State concedes that the trial court
misapplied the enhancement factor regarding the victims’ vulnerability due to age
because there was no proof pertinent to this factor other than the victims’ ages. See
T.C.A. § 40-35-114(4); State v. Poole, 945 S.W.2d 93, 97 (Tenn. 1997) (“[T]he State
must prove the factor is applicable and there must be evidence in the record in addition to
the victim’s age.”). The State also concedes error in enhancing the Defendant’s
aggravated sexual battery convictions on the basis that the crimes were committed to
gratify the defendant’s desire for pleasure or excitement. See T.C.A. § 40-35-114(7);
State v. Kissinger, 922 S.W.2d 482, 489-90 (Tenn. 1996) (concluding that the factor
could be applied to a conviction for rape or aggravated rape but not to a conviction for
sexual battery or aggravated sexual battery because it was an element of that offense).
The State nevertheless argues that the trial court did not abuse its discretion, noting that
the Defendant abused a position of public or private trust to facilitate the commission of
the offenses.
This court reviews challenges to the length of a sentence under an abuse of
discretion standard, “granting a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The court will
uphold the sentence “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Id. at 709-10. Even if the trial court “recognizes and
enunciates several applicable mitigating factors, it does not abuse its discretion if it does
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not reduce the sentence from the maximum on the basis of those factors.” State v.
Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The trial court is “to be guided by — but not
bound by — any applicable enhancement or mitigating factors when adjusting the length
of a sentence.” Bise, 380 S.W.3d at 706. Further, “a trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Id. A sentence imposed
by the trial court that is within the appropriate range should be upheld “[s]o long as there
are other reasons consistent with the purposes and principles of sentencing, as provided
by statute.” Id. The appealing party bears the burden of proving that the sentence was
improper. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
In determining “the specific sentence and the appropriate combination of
sentencing alternatives,” the trial court must consider: (1) the evidence at the trial and the
sentencing hearing; (2) the presentence report; (3) the principles of sentencing and
arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal
conduct involved; (5) evidence and information offered by the parties on the applicable
mitigating and enhancement 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 the defendant wishes to make in the defendant’s own behalf
about sentencing; and (8) the result of the validated risk and needs assessment conducted
by the department and contained in the presentence report. T.C.A. § 40-35-210(b).
Tennessee Code Annotated section 39-13-522(b)(2)(A) mandates a sentence as a
Range II, multiple offender for a conviction for rape of a child, which is a Class A felony.
T.C.A. § 39-13-522(b)(1), (b)(2)(A). Accordingly, the Defendant’s sentence of thirty
years fell within the statutory range of twenty-five to forty years for this crime. T.C.A. §
40-35-112(b)(1). For the Class B felony of aggravated sexual battery, the Defendant’s
sentences of ten years fell within the eight- to twelve-year range for a Range I offender.
T.C.A. § 39-13-504(b), § 40-35-112(a)(2).
At sentencing, the trial court recited the evidence it was required to consider under
the statute. After making findings regarding the enhancing and mitigating factors, the
court stated that it found the Defendant’s stepson to be extremely credible and noted in
particular that the circumstances of the crime were aggravated by the relationship
between the Defendant and the victims. In Bise, the trial court misapplied the single
enhancement factor supporting the sentence. Bise, 380 S.W.3d at 708. The sentence was
nevertheless upheld because the trial court articulated reasons for the sentence which
were consistent with the purposes and principles of sentencing. Id. at 709. Here, the trial
court considered the evidence mandated by T.C.A. § 40-35-210, and it determined the
sentences in part based on the Defendant’s relationship with the victims. The evidence
showed that the Defendant was a father-figure to the victims and provided childcare
- 24 -
while the victims’ mother was working. We conclude that, even though the trial court
committed errors in its determinations regarding the application of enhancement factors,
the sentences imposed were within the statutory range and consistent with the purposes
and principles of sentencing, and we accordingly conclude there was no abuse of
discretion.
Outcome: Because the State failed to establish venue for the Defendant’s conviction for
aggravated sexual battery based on touching his stepdaughter’s breasts in Count 4, we reverse the conviction and remand for any further proceedings. Hutcherson, 790 S.W.2d 535 (remanding when the evidence did not establish venue). We otherwise affirm theconvictions and sentences.
Plaintiff's Experts:
Defendant's Experts:
Comments: