State of Tennessee v. Dominc Eric Frausto ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
May 15, 2012 Session
STATE OF TENNESSEE v. DOMINIC ERIC FRAUSTO
Appeal from the Criminal Court for Union County
No. 3640 E. Shayne Sexton, Judge
No. E2011-02574-CCA-R3-CD - Filed December 23, 2013
The Defendant, Dominic Eric Frausto, was convicted by a Union County Criminal Court jury
of two counts of aggravated sexual battery, Class B felonies. See T.C.A. § 39-13-504
(2010). The trial court merged the convictions and sentenced him as a Range I, standard
offender to twelve years’ confinement. On appeal, the Defendant contends that (1) the
evidence is insufficient to support his convictions because the State did not prove the corpus
delicti, (2) the trial court erred in failing to comply with Tennessee Criminal Procedure Rule
24 during jury selection, and (3) the trial court erred in sentencing him to the maximum in
the range. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and N ORMA M CG EE O GLE, JJ., joined.
Robert L. Jolley, Jr. and Jennifer L. Gower (on appeal), Knoxville, Tennessee; Martha J.
Yoakum, District Public Defender; and Dale Potter and Larry Bryant, Assistant District
Public Defenders (at trial), Jacksboro, Tennessee, for the appellant, Dominic Eric Frausto.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Lori Phillips-Jones, District Attorney General; and Tracy Tipton Jenkins,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The Defendant was indicted for two counts of rape of a child and two counts of
aggravated sexual battery. At the trial, the victim testified that she was eight years old and
that her birthday was September 12, 2000. She identified a photograph of a house and said
the Defendant raped her there. The prosecutor showed the victim an anatomically correct
drawing of a female child, and the victim identified the arm, “butt,” eye, vagina, and foot on
the drawing. The prosecutor also showed the victim an anatomically correct drawing of an
adult male, and the victim identified the hand, mouth, nose, and penis on the drawing. She
said the Defendant raped her on the couch, and she identified a photograph of the living
room. She said he “stuck his penis in [her] vagina.” She said she wore clothes before and
during the rape but did not remember the type of clothing she wore or whether her clothes
were removed. She said that she was wearing panties but that the Defendant moved them
aside.
The victim testified that three other people lived in the house but that no one was
home when the Defendant moved her panties aside. She said her three-year-old sister was
on the love seat watching television. She said it hurt when the Defendant put his penis in her
vagina. She said he did not put anything else inside her vagina. She did not remember how
old she was when the rape occurred. The victim testified that she, her mother, and her
younger sister lived elsewhere.
On cross-examination, the victim testified that she read the term “rape” in the
newspaper. She said that she had not seen the drawings of the female child and adult male
before the prosecutor showed them to her during the trial. She said she had always used the
words “vagina” and “penis” and had never called the body parts anything else. She said she
did not remember her age, the day of the week, the date, or whether it was day or night when
the rape occurred. She said the rape only happened once and nowhere else. She said that her
mother asked if the Defendant touched her and that she said he had because it “really
happened,” not because her mother wanted her to say he did. She said that the Defendant
touched her more than once and that she told her mother it happened more than once.
The victim testified that she was mad at the Defendant because he whipped her and
that she did not like it. She said she told her mother she did not want the Defendant around
because he whipped her but did not remember how many times he whipped her. She said she
did not like her mother dating men.
On redirect examination, the victim testified that the Defendant never told her not to
tell her mother or anyone else about the abuse. When asked to describe one of the other
times the Defendant touched her, the victim said that she could not describe it because she
did not remember but that he stuck his penis in her vagina at his house on the couch. She
agreed that she went to the courtroom the night before the trial and that the prosecutor
showed her the drawings of the female child and adult male on the projector but only told her
to tell the truth.
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Lenora Balogh, the victim’s mother, testified that she dated the Defendant from
approximately February to July 2008. She said she had two children, the victim and a
younger daughter. She said that during the time she dated the Defendant, she left the
children alone with him several times at her apartment and at the Defendant’s house he
shared with his mother, aunt, and cousin. She said that when she left the children alone with
the Defendant at her apartment, no one else was there and that when she left the children with
the Defendant at his house, others were not always there. She said the victim’s demeanor
toward the Defendant changed in approximately May 2008 when she “went from loving him
to hating him.” She said that she first learned of the victim’s allegations in July, that she
reported them immediately to the sheriff’s department and the Department of Children’s
Services (DCS) hotline, and that she contacted the victim’s doctor and took her to Children’s
Hospital.
On cross-examination, Ms. Balogh testified that she met the Defendant in February
at the apartment complex where they both lived. She said the Defendant and his family left
the apartment complex in March and moved to a house. She said that at the time she and the
Defendant were dating, she had lived in the apartments a little over a year and that she saw
and spoke to the Defendant’s family before she and the Defendant started dating. She said
that after the Defendant moved, she went to his new house to see him and began staying
there. She said she was attending school two nights per week at “Pellissippi” from 5:00 p.m.
to 9:00 or 9:30 p.m. She said that she left her children with the Defendant when she went
to school and that his family was sometimes there. She said that she began going to school
in the middle of May and that the Defendant watched the children for her once or twice per
week from May until June.
Ms. Balogh testified that she stayed at the Defendant’s house five or six nights per
week and agreed that he only stayed at her apartment one night. She said they were not
always together at her apartment because she would leave to buy groceries or fast food. She
said that when she left, the children were usually playing or watching a movie with the
Defendant and that they watched television in her bedroom. She said that friends or family
were at the Defendant’s house about half the time and that they watched television in the
living room because the Defendant did not have a bed in his bedroom. She said that she and
the Defendant slept on a pallet on the floor, that the victim slept on the couch, that her
younger daughter slept on the love seat, and that the Defendant’s mother, aunt, and cousin
slept in their bedrooms.
Ms. Balogh testified that she and the Defendant had sex on the floor in the
Defendant’s living room and in the storage room at his house and that the victim walked in
while Ms. Balogh was performing oral sex on the Defendant in the chair in the living room.
She labeled a picture of the living room where she and the Defendant had sex and where she
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performed oral sex on the Defendant. She said that when she was performing oral sex on the
Defendant, her children were playing in the hall and that no doors separated the hall and the
living room. She said that she asked the victim what she wanted and that the victim returned
to the hallway to play. She said that she asked the victim later if she saw anything and that
the victim told her she did not. She said the children were asleep on the couch when she and
the Defendant had sex on the pallet in the floor.
Ms. Balogh testified that a sixteen-year-old girl came to the Defendant’s house, that
she asked his family questions about the girl, and that “red flags” made her ask the victim if
the Defendant had touched her. She stated that she told the DCS investigator, Beth Miracle,
the Defendant would not kiss her in front of the sixteen-year-old girl, which was one of the
red flags. She said she had no complaints about her relationship with the Defendant until that
time.
On redirect examination, Ms. Balogh testified that the red flags appeared when the
Defendant told her a truck-driving friend was coming to town and that he was going to meet
the friend at the truck stop. She said the Defendant came home with a sixteen-year-old girl,
whom he described as his “adopted niece.” She said she talked to the Defendant’s brother
and sister-in-law and then talked to the victim, who told her what happened. She said that
after she spoke with the victim, they went to the sheriff’s department to report the abuse. She
said that the Defendant sent her to buy groceries and fast food during the day and the
evening.
Christina Gilpatrick testified that she was the victim’s daycare provider for over two
years, including the summer before the trial. She said that when the Defendant came with
the victim’s mother to pick her up, the victim ran back into the house, hid, cried, and said she
did not want to go home. On cross-examination, Ms. Gilpatrick said the Defendant came to
her house with the victim’s mother once at the end of July 2008 and once at the beginning
of August 2008.
Union County Sheriff’s Department Detective Phillip Johnson testified that he
investigated the victim’s allegations of child rape and aggravated sexual battery in August
2008. He said that a report was filed with DCS and that DCS notified him. He said that he
interviewed and obtained a statement from the Defendant. He said the Defendant waived his
Miranda rights. He read the Defendant’s statement, which described an encounter with the
victim at Ms. Balogh’s apartment while she was at the store and her younger daughter was
asleep. The Defendant said that he and the victim were in Ms. Balogh’s bed watching
television, that the victim put her hand on his penis over his shorts, and that he told her that
was “not good.” He said he asked how she would like it if he put his hand on her. The
Defendant stated that the victim grabbed his hand and put it on her vagina and that he rubbed
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her vagina on the outside of her shorts while the victim was touching him. He said that this
five or ten second incident was the only time such touching occurred and that he did not tell
Ms. Balogh when she returned. He said he never touched the victim without clothing, never
put his penis in her vagina, and never ejaculated in front of her. The Defendant signed and
dated his statement. Detective Johnson said that the Defendant did not make any statement
in addition to the written statement. He said he took a buccal swab from the Defendant to
be tested for DNA and sent it to the Tennessee Bureau of Investigation (TBI) for analysis.
On cross-examination, Detective Johnson testified that a report was filed with DCS
in the first or second week of July 2008 and that he received the report two or three days
later. He did not believe the Defendant and Ms. Balogh were still in contact at the time of
the report. He stated that he asked the Defendant to come to the police station to talk to him
and that the Defendant came on his own and was cooperative. He said the Defendant talked
to him at the first interview but told him he needed to talk to his lawyer at the second
interview. The interviews occurred before the Defendant was charged.
Detective Johnson testified that the Defendant’s cousin came with the Defendant to
the first interview. He said that the interview was not recorded and that the department did
not have access to recording equipment. He stated that during the first interview, he asked
the Defendant if he wanted to write his statement but that the Defendant asked Detective
Johnson to write it. Detective Johnson said that he read the Defendant the “noncustodial,”
that they had a brief conversation, and that he asked the Defendant to sign the Miranda rights
waiver at 5:42 p.m. He said that they talked until 6:21 p.m. and that the Defendant was
cooperative. He stated that he wrote defendants’ statements as they gave them and that the
Defendant’s statement was not just a summary.
TBI Special Agent Stephanie Dotson testified that she was the team leader who
investigated the scene at the Defendant’s house. She said she took photographs, drew a
diagram, and used presumptive tests to determine which samples of carpet to take to the
laboratory. She said the presumptive testing included a high intensity light test and a
chemical test.
On cross-examination, Agent Dotson testified that she had training using the high
intensity light test and that the light made body fluids glow. She stated that she performed
a chemical test on the areas that glowed and that all samples collected tested positive for
body fluids. She said they investigated the scene when they were contacted in December.
She stated that she did not think the results of the presumptive tests would have been
different if she had tested the scene six months earlier but that she was not trained in the
degradation of body fluids. She agreed that body fluids could degrade and said that more
might have been found if tested earlier. On redirect examination, she stated that she did not
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perform the laboratory testing and had no personal knowledge whose DNA was found on the
carpet.
TBI Special Agent Forensic Scientist Kimberly Bryant testified that she helped collect
the carpet samples at the scene and analyzed the samples at the TBI laboratory. She said that
the spermatozoa DNA profile found on a portion of the living-room carpet matched the DNA
sample taken from the Defendant. She said the probability of an unrelated individual having
the same DNA profile exceeded the world population. She said the DNA profile found on
samples of the carpet did not match a DNA sample from Santana Frausto.
On cross-examination, Agent Bryant testified that she did not test a sample of carpet
taken in front of the love seat because law enforcement told her two other samples were more
probative and that she did not know if sperm was found on that piece of carpet. She stated
that the TBI policy allowed her to narrow the evidence she tested to the most probative and
that her conversation with law enforcement revealed that the assault happened near the
couch, narrowing the areas to be tested. She said that all of the samples tested positive
during the presumptive tests at the scene but that she chose to test two of the items at the
laboratory because they were most probative. She said she did not limit her testing based on
what law enforcement told her. She said law enforcement gave her information that caused
her to decide which samples were most probative. She denied that she was only concerned
with helping the State obtain a conviction. She said that she was hired to perform her job in
an “unbiased manner” and that she proceeded accordingly. She agreed that she worked for
the TBI, not for private citizens, and that she would not have tested a piece of carpet if asked
by the Defendant’s attorney because the evidence she tested came through a submitting
agency or a law enforcement agency. On redirect examination, she said that if she were
given information in a child rape case that the rape occurred on a specific couch, she would
have no reason to test another couch.
Gail Clift, a pediatric nurse practitioner, a forensic pediatric sexual assault nurse
examiner, and owner of Pediadvocate Services, testified that she provided medical exams for
children who made allegations of physical or sexual abuse. She said that she examined the
victim on July 18, 2008, after the victim disclosed that her private parts were touched by an
adult. The victim told her she came to see Ms. Clift because the Defendant touched her
vagina “on the inside and the outside with his penis and with his finger.” She said that
during the exam, she discovered the victim had genital warts. She said that the victim did
not have any injuries and that the victim’s examination was consistent with the history the
victim provided. She stated that when a finger or small object was inserted in the vagina of
a young child, there were usually no injuries. She said that redness might result but that it
would go away quickly, leaving no visible, long-term injury. She said young children did not
perceive “inside” the same as adults. She stated that the victim complained of burning and
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itching in her vagina and that she instructed the victim to use petroleum jelly and prescribed
an ointment.
On cross-examination, Ms. Clift testified that in her private practice, she worked
mainly through referrals from DCS and law enforcement. She said she had testified for the
defense twice and for the State more than twenty times. She said no injuries were noted on
the photographs she took. She agreed that poor hygiene could cause the victim’s itching and
burning but said the victim was not unclean. She said she prescribed petroleum jelly to cover
the genital warts and ointment to treat the redness and irritation. She said the genital warts
would not go away with the petroleum jelly but would come and go over a person’s lifetime
because they were caused by a virus. She said there was no way to know how long the victim
had the genital warts. She said she saw three genital warts but no injuries to the victim’s
hymen.
At the close of the State’s proof, the Defendant moved for a judgment of acquittal as
to all counts. The trial court granted the motion as to the second count of the indictment for
rape of a child.
Lenora Balogh was recalled as a witness for the defense and testified that she reported
the incident to DCS on July 8 or 9, 2008. She said she and the victim were not around the
Defendant again after she reported the incident to DCS. She said that the Defendant came
to her house one day but that she did not go anywhere with him and kept her daughter away
from him. On cross-examination, Ms. Balogh testified that Christine Gilpatrick was the
victim’s daycare provider during the summer of 2008. She said that while she dated the
Defendant, he went with her to pick up the victim at daycare and that the victim was not
happy to see him.
The Defendant testified that he was from Texas and had lived in Union County,
Tennessee, since 2008. He said that he had relatives in Texas, that his thirteen-year-old
daughter lived with her mother in Claiborne County, Tennessee, and that his mother, aunt,
and cousin lived in Union County. He said that the victim did not like him because he
spanked her and because she did not want her mother to date men. He said the victim had
“teenage issues.” He did not know why the victim did not like men. He said he and Ms.
Balogh ended their relationship in early July. When asked about an incident that caused Ms.
Balogh to have “red flags,” the Defendant said his “adopted niece” brought him cold
medicine that day. He said he did not do anything that day because he was “real sick.” He
stated that he and Ms. Balogh did not have any problems or discussions that day, that she did
not want to be affectionate with him, and that she did not say anything to him about the
victim.
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The Defendant testified that he and Ms. Balogh had sex on the floor, recliner, and sofa
in his living room and in “a little pantry room” at his house. He said they had sex almost
every night she stayed at his house. He said the children slept on the couch and love seat
while he and Ms. Balogh had sex. He said that the younger child would wake but that the
victim would stay asleep.
The Defendant testified that he went to the police station on his own and gave a
statement to Detective Johnson. He said Detective Johnson asked him how he was doing,
offered him a drink, and began asking him questions. He said he gave a statement and was
never asked if he wanted to correct it. He recalled the incident that he discussed in his
statement about touching the victim and the victim’s touching him. He stated that the
incident occurred at Ms. Balogh’s apartment in June and that it was “just a hands on, hands
off.” He said that she put her hand on him and that she grabbed his hand and put it on her.
He said he was not sexually aroused by the touching but was upset about it. He stated that
he told her it was not “too friendly or too nice” and that he asked her where she learned it.
He said that she did not answer him and that no other touching occurred.
The Defendant denied having a “venereal” disease, including genital warts. He said
he received negative results after being tested for gonorrhea in 1998 or 1999. He denied
being asked to submit to testing for any venereal disease or being treated or taking
medication for a venereal disease when he was in custody.
The Defendant testified that had never inserted his penis into the victim. He denied
the victim had seen him undressed or seen his penis. He said that at the time of the incident,
his mother was not working and was home most of the time but that his aunt and cousin
worked. He said he was only left alone with the victim once at Ms. Balogh’s apartment when
Ms. Balogh left for five to ten minutes and went to the store for food. He said a family
member was at the house the one or two times he watched the children when Ms. Balogh
went to school.
On cross-examination, the Defendant testified that the statement he gave to Detective
Johnson was not incorrect. He said the victim put her hand on his penis on top of his clothes,
looked at him, smiled, took his hand, and placed it on her. He said there was no rubbing even
though his statement said he rubbed her vagina on the outside of her shorts. He said the
sixteen-year-old girl who came to his house was not a runaway. He said the girl was from
Columbus, Tennessee, and was there on “church business.” He said she was a family friend
and was not related to him. He said that he kept the victim and her sister at his house and
that four people lived at his house at the time. He agreed two of the four people worked a
significant amount of time and that his mother had been sick and in the hospital. He said the
victim’s “teenage issues” included “real issues” with her mother dating men. He agreed that
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it would be reasonable for the victim to hate men if a man had raped her or rubbed her
vagina.
On this evidence, the jury acquitted the Defendant of the remaining count of rape of
a child and convicted him of two counts of aggravated sexual battery. The trial court merged
the two convictions and sentenced him to twelve years’ confinement. This appeal followed.
I
The Defendant contends that the evidence is insufficient to support his conviction for
aggravated sexual battery because the State failed to establish the corpus delicti. The State
counters that the evidence is sufficient to support the convictions. We conclude that the State
established the corpus delicti and that the Defendant is not entitled to relief.
Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not reweigh the evidence but
presume that the trier of fact has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the State. See State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Questions about witness credibility are resolved by the jury. See State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997). “A crime may be established by direct evidence, circumstantial
evidence, or a combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998).
Corpus delicti means “the body of the crime.” State v. Shepherd, 862 S.W.2d 557,
564 (Tenn. Crim. App. 1992). The two elements necessary to prove the corpus delicti are
“(1) that a certain result has been produced, for example, a man has died or a building has
been burned, and (2) some person is criminally responsible for the act.” Wooten v. State, 314
S.W.2d 1, 5 (1958). Our supreme court has held that:
[W]hile the corpus delicti cannot be established by confessions
alone, yet the confessions may be taken in connection with other
evidence, direct or circumstantial, corroborating them, and, if
from all of the evidence so considered together the corpus delicti
and the guilt of the person with reference thereto is established
beyond a reasonable doubt, it is the duty of the jury to convict.
Ashby v. State, 139 S.W. 872, 875 (Tenn. 1911).
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Only slight proof is required to establish the corpus delicti. State v. Smith, 24 S.W.3d
274, 281 (Tenn. 2000). The corroborating evidence can be proof that bolsters the confession
itself, thereby proving the offense through the defendant’s statements. State v. Housler, 193
S.W.3d 476 (Tenn. 2006) (citing Smith v. United States, 348 S.W.3d 147 (1954)); see also
State v. Alec Joseph Mesot, M2006-0259-CCA-R3-CD (Tenn. Crim. App. Mar. 14, 2008)
(Woodall, J., concurring and dissenting) (stating that the corroborating evidence does not
have to independently establish the corpus delicti and that the critical inquiry is “whether the
corroboration sufficiently establishes the trustworthiness of the confession”).
The Defendant was charged with four offenses:
Count 1: Rape of a child at the Defendant’s house
Count 2: Rape of a child at the Defendant’s house
Count 3: Aggravated sexual battery at the victim’s mother’s apartment
Count 4: Aggravated sexual battery at the victim’s mother’s apartment
The trial court granted the Defendant’s motion for judgment of acquittal and dismissed Count
2. The jury found the Defendant not guilty of Count 1. The Defendant’s single merged
conviction is based upon the jury’s findings of guilt in Counts 3 and 4.
For aggravated sexual battery, the State was required to prove that the Defendant
engaged in unlawful sexual contact with a victim less than thirteen years old. T.C.A. § 39-
13-504(a)(4). “‘Sexual contact’ includes the intentional touching of the victim’s . . . intimate
parts, if that touching can be reasonably construed as being for the purpose of sexual arousal
or gratification.” Id. § 39-13-501(6).
The Defendant said in his pretrial statement that the victim put her hand on his penis
over his shorts while in Ms. Balogh’s bedroom watching television. He admitted that the
victim “grabbed [his] hand and put it on her vagina” and that he rubbed her vagina on the
outside of her shorts while the victim touched him. He said in his pretrial statement that the
only time the “sexual touching” occurred was at Ms. Balogh’s apartment. Detective Johnson
wrote the statement, and the Defendant initialed and signed it.
In his trial testimony, the Defendant acknowledged that the statement was his and that
it was not incorrect in any way. On cross-examination, however, he denied that he rubbed
the victim’s vagina. He said, “I forgot about the rubbing. I didn’t know that was in there.”
The Defendant testified that the victim touched his penis over his clothes and put his hand
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on her vagina. He denied that the contact was sexually exciting to him. The victim testified
equivocally about whether more than one incident of sexual penetration occurred. When
asked if there was more than one “touching,” the victim said there was, but she later clarified
that she meant penile/vaginal contact.
The Defendant’s affirmation in his trial testimony that the pretrial statement was his,
that it was correct, and that he signed it provided corroborating evidence that established the
trustworthiness of the statement. Although the Defendant later testified that he did not rub
the victim, the jury was permitted to credit the portions of his testimony that it considered
consistent with the truth and discredit the portions they believed were untrue. See, e.g., State
v. Gilbert, 612 S.W.2d 188, 190 (Tenn. Crim. App. 1980). We note, as well, that our review
is conducted by viewing the evidence in the light most favorable to the State. See Sheffield,
676 S.W.2d at 547; Cabbage, 571 S.W.2d at 835. In addition to the Defendant’s testimony
corroborating the confession, the evidence showed that the Defendant stayed with the victim
and the victim’s sister at the victim’s mother’s apartment when the victim’s mother was
away. The Defendant’s confession established that the crime occurred, and the confession
was adequately corroborated by the Defendant’s testimony and proof the Defendant had been
at the location of the crime with the victim when the victim’s mother was not present. We
conclude that the evidence is sufficient to support the conviction. The Defendant is not
entitled to relief on this basis.
II
The Defendant contends that the trial court erred by failing to adhere to the mandatory
jury selection procedures in Tennessee Criminal Procedure Rule 24. He argues that he was
prejudiced by the denial of his right to exercise any meaningful peremptory challenge and
that the judicial process was harmed by the court’s failure to adhere to the rule. The State
contends that although the court departed from the Rule 24(d) procedure, it was harmless
because the Defendant fully exercised his peremptory challenge rights and that no partisan
or incompetent juror was seated as a result of the court’s technical departure from the Rule
24(d) procedure.
Rule 24(d), in relevant part, states:
(d) Exercising Peremptory Challenge. After the court conducts its initial
examination and seats a tentative group of jurors not excluded for cause, the
following procedure shall be followed until a full jury has been selected from
those jurors and accepted by counsel:
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(1) At each round of peremptory challenges, counsel shall submit
simultaneously to the court either a blank sheet of paper or a sheet of paper
challenging one or more jurors in the group of the first twelve (or more if
additional jurors are seated under the single entity process of Rule 24(f)(2)(A))
jurors who have been seated. Neither party shall make known the fact that the
party has not challenged a juror.
(2) Replacement jurors will be seated in the panel of twelve (or more if
additional jurors are seated under the single entity process of Rule 24(f)(2)(A))
in the order of their selection.
(3) If necessary, additional replacement jurors will be examined for cause and,
after passed, counsel will again submit simultaneously, and in writing, the
name of any juror in the group of twelve (or more if additional jurors are
seated under the single entity process of Rule 24(f)(2)(A)) that counsel elects
to challenge peremptorily. Peremptory challenges may be directed to any
member of the jury; counsel are not limited to using such challenges against
replacement jurors. . . .
Tenn. R. Crim. P. 24(d). “[W]hile the ‘adherence to the procedure prescribed by Tenn. R.
Crim. P. 24(c) is mandatory,’ deviation from the Rule may qualify as harmless error.” State
v. Lester Allen Clayton, No. 03C01-9901-CR-00049, slip op. at 3 (Tenn. Crim. App. Jan. 26,
2000) (quoting State v. Phyliss Ann McBride, No. 01C01-9606-CC-00269, slip op. at 7
(Tenn. Crim. App. Oct. 24, 1997) (citations omitted)), perm. app. denied (Tenn. Oct. 23,
2000). The burden is on the Defendant to prove prejudice or purposeful discrimination in
the selection of a jury. State v. Coleman, 865 S.W.2d 455, 458 (Tenn. 1993). Proof of actual
prejudice is not required when deviations from the statute are “flagrant, unreasonable, and
unnecessary.” State v. Bondurant, 4 S.W.3d 662, 668 (Tenn. 1999); see also State v. Lynn,
924 S.W.2d 892, 898 (Tenn. 1996) (both cases involve deviations in the procedure when
there was an unexpected need for another pool from which to select jurors).
A trial court is granted wide discretion in the procedure used in selecting a fair and
impartial jury, subject to the Rules of Criminal Procedure, and it will not be overturned
absent an abuse of discretion. State v. Bowers, 77 S.W.3d 776, 783 (Tenn. Crim. App. 2001)
(citing State v. Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989)). “The ultimate goal
of voir dire is to [e]nsure that jurors are competent, unbiased, and impartial . . . .” State v.
Cazes, 875 S.W.2d 253, 262 (Tenn. 1994) (citing State v. Howell, 868 S.W.2d 238, 247
(Tenn. 1993)). Our supreme court has explained that the “[r]ules prescribing jury selection
procedures are intended to protect the integrity of the jury system by providing a uniform and
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ordered method that ensures the accused a fair and impartial jury chosen from a fair cross-
section of the community.” Coleman, 865 S.W.2d at 458.
We note that the Defendant objected to the irregularity before the jury was sworn. See
T.C.A. § 22-2-313 (requiring an objection to an irregularity in jury selection before the jury
is sworn). The jury selection process began with the trial court’s selection of eighteen
prospective jurors. The trial court reminded the parties that they had nine peremptory
challenges and that thirteen jurors would be seated for the trial. All eighteen prospective
jurors were questioned by both sides, and the parties were allowed to use their peremptory
challenges with respect to all eighteen. Seven prospective jurors were excused. The
remaining eleven were taken to the jury room, and eighteen new prospective jurors were
seated.
The new eighteen prospective jurors were questioned by both sides. The parties were
allowed to use their remaining peremptory challenges with respect to all eighteen seated in
the second round or to “back strike” any of the eleven prospective jurors in the jury room.
Five prospective jurors were excused from the second round. In the first round, the
Defendant used seven challenges. In the second round, the Defendant used his remaining
two challenges, and the State used three. After both rounds, twenty-three prospective jurors
remained, and the court randomly selected ten jurors to be excused, leaving thirteen jurors
to be seated. The trial court stated, “[T]his [method] has been used by this Court for years,
for years, and it’s been accepted throughout the State.”
The trial court erred in deviating from the prescribed procedure by not seating
replacement jurors in the order of their selection and preventing the parties from knowing
which of the remaining twenty-three jurors would be selected to serve. The Defendant has
not shown, however, that he was prejudiced by the court’s deviation from the statutory
procedure or that the deviation was so egregious that prejudice must be presumed. We
conclude that the error in the Defendant’s case was harmless. We caution the trial court,
however, that its jury selection method should comply with the relevant rules.
III
The Defendant contends that the trial court abused its discretion in sentencing him to
the maximum term of twelve years. He argues that the court erroneously applied
enhancement factors not supported by the evidence. The State counters that the court
properly sentenced the Defendant.
The Tennessee Supreme Court adopted the present standard of review for sentencing
in State v. Bise, 380 S.W.3d 682 (Tenn. 2012). The length of a sentence “within the
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appropriate statutory range are to be reviewed under an abuse of discretion standard with a
‘presumption of reasonableness.’” Id. at 708. In determining the proper sentence, the trial
court must consider: (1) any evidence received at the trial and 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, (5) any mitigating or
statutory enhancement factors, (6) statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee, (7) any
statement that the defendant made on his own behalf, and (8) the potential for rehabilitation
or treatment. T.C.A. §§ 40-35-102, -103, -210; see State v. Ashby, 823 S.W.2d 166, 168
(Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).
“[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.” Bise, 380 S.W.3d at 706. “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.” Id.
The Defendant argues that the trial court erred in finding that enhancement factor (1)
applied. See T.C.A. § 40-35-114(1) (2010) (“The defendant has a previous history of
criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range.”). The court found that the Defendant’s previous history of criminal
convictions had been “clearly” shown. The presentence report showed no prior convictions
but noted that the Defendant had a poor driving history involving commercial vehicles. The
Defendant’s traffic convictions could not be verified because they included out-of-state
dispositions, but he reported that he no longer had a valid commercial driver’s license.
During the Defendant’s presentence report interview, he admitted that he used
methamphetamine and marijuana and drank alcohol when he was underage. During his
presentence psychosexual evaluation, he admitted that he had five misdemeanor convictions
and had been sentenced to jail twice. Although this court has previously concluded that a
trial judge may find evidence of criminal behavior even though there has been no conviction,
the record does not include verification of the Defendant’s “poor driving history” or prior
criminal behavior. See State v. Massey, 757 S.W.2d 350, 352 (Tenn. Crim. App. 1988).
However, the Defendant admitted several prior misdemeanor convictions and serving time
in confinement. We conclude that the record supports the trial court’s applying enhancement
factor (1).
The Defendant argues that the trial court erred in finding that enhancement factor (6)
applied. See T.C.A. § 40-35-114(6) (“The personal injuries inflicted upon . . . the victim
[were] particularly great.”). The court considered the victim’s counselor’s testimony on the
extent of the mental injuries the victim suffered and would suffer and found “trouble coming
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her way.” In State v. Jones, 883 S.W.2d 597 (Tenn. 1994), our supreme court noted that a
“particularly great injury” is one that involves “‘substantial risk of death,’ ‘protracted
unconsciousness,’ ‘extreme physical pain,’ ‘protracted or obvious disfigurement,’ and
‘protracted loss or substantial impairment of a function of a bodily member, organ, or mental
faculty.’” Jones, 883 S.W.2d at 602 (quoting T.C.A. § 39-11-106(a)(33)), superseded on
other grounds by statute, T.C.A. § 40-35-210(c) (2010), as recognized in State v. Carico, 968
S.W.2d 280, 288-89 (Tenn. 1998). Janet McCracken, the victim’s counselor, testified at the
sentencing hearing that the victim attended counseling sessions after the offense and that the
victim would likely have future repercussions from the incident. No evidence exists,
however, showing that her injuries arose to the level of “particularly great” as defined by our
supreme court. We agree with the Defendant that enhancement factor (6) was improperly
applied to enhance his sentence.
Although not argued at the sentencing hearing, the State argues in its brief that
enhancement factor (14) applied relative to abuse of a “position of . . . private trust . . . that
significantly facilitated the commission or the fulfillment of the offense.” See T.C.A. § 40-
35-114(14). The trial court did not apply enhancement factor (14), but the record supports
its application. Our supreme court has stated that the “position of parent, step-parent,
babysitter, teacher, coach are but a few obvious examples” of someone in a position of trust.
State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn. 1999) (quoting State v. Kissinger, 922 S.W.2d
482, 488 (Tenn. 1996)). In Kissinger, the supreme court distinguished between the
application of this enhancement factor to a defendant who was merely a casual visitor to the
victim’s home and to a defendant who had been entrusted with the care of a victim. The
court found a position of trust existed in the latter circumstance but not in the former.
In this case, the Defendant was entrusted as the victim’s caretaker when she stayed
at his house while her mother was at school and when she stayed at her mother’s apartment
while her mother went for food and groceries. She spent multiple nights at the Defendant’s
house, and he stayed at her mother’s apartment. The Defendant was aware the victim would
be alone with him at both his house and her mother’s apartment, and he accepted
responsibility for her well-being during that time by consenting to the stay. The enhancement
factor based on abusing a position of trust applies.
Regarding the Defendant’s argument that his twelve-year sentence is excessive, a
presumption of reasonableness is afforded to a sentence “within the appropriate statutory
range.” Bise, 380 S.W.3d at 707. As a Range I, standard offender convicted of a Class B
felony, the Defendant faced a sentence of eight to twelve years. See T.C.A. §§ 40-35-105;
40-35-112(a)(2) (2010). No mitigating factors were offered, and we have concluded that one
of the enhancement factors was erroneously applied. The trial court, though, considered the
principles of sentencing and found one applicable enhancement factor. The record also
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supports one enhancement factor not considered by the court. Given the circumstances of
the Defendant’s offense, his relationship with the victim, and his admitted criminal history,
the record supports the Defendant’s sentence. The Defendant is not entitled to relief on this
basis.
In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.
____________________________ _ _ _ _ _ _ _
JOSEPH M. TIPTON, PRESIDING JUDGE
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