State of Tennessee v. Marcos Enrique Collazo, Sr. ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 28, 2010
STATE OF TENNESSEE v. MARCOS ENRIQUE COLLAZO, SR.
Direct Appeal from the Criminal Court for Davidson County
No. 2008-A-832 Monte Watkins, Judge
No. M2009-02319-CCA-R3-CD - Filed September 29, 2011
A Davidson County Criminal Court jury convicted the appellant, Marcos Enrique Collazo,
Sr., of three counts of rape of a child, seven counts of rape by fraud, seven counts of statutory
rape by an authority figure, and seven counts of misdemeanor assault. The trial court
imposed a total effective sentence of 130 years in the Tennessee Department of Correction.
On appeal, the appellant argues that the trial court erred in denying his motion to sever, that
the trial court erred in denying his motion to exclude pornographic videos found in his
bedroom, that the evidence was insufficient to sustain his convictions for rape by fraud and
statutory rape by an authority figure, and that the trial court erred in sentencing. We
conclude that the trial court erred in denying the appellant’s severance motion. However, the
error was harmless. Finding no further error, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
Affirmed.
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and C AMILLE R. M CM ULLEN, JJ., joined.
Katie Weiss and Emily Todoran (at trial) and Charles E. Walker (on appeal), Nashville,
Tennessee, for the appellant, Marcos Enrique Collazo, Sr.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Kristen Menke, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The Davidson County Grand Jury returned a multi-count indictment charging the
appellant with seven counts of rape, seven counts of rape by fraud, and seven counts of
statutory rape by an authority figure, all of which involved the victim, K.C.1 The indictment
also charged the appellant with three counts of rape of a child, namely A.C.2
At trial, K.C. testified that her date of birth was August 4, 1992. She stated that she
lived with her father, her mother, and her two sisters, A.C. and V.C. K.C. said that during
her freshman year in high school, she and her family moved from Chicago to Nashville to
be closer to her father’s family. K.C.’s family moved into the Iroquois Apartments in
Bellevue. K.C.’s paternal grandmother and uncle, the appellant, shared an apartment in the
same complex. The appellant’s bedroom was upstairs in the apartment he shared with his
mother.
K.C. said that she did not have many friends in Chicago and that after she and her
family moved to Nashville, she did not know many people. She had a good relationship with
her family and agreed that their arguments were usually about “typical teenage stuff.” K.C.
said that because she and her family did not know many people, her parents did not want her
and her sisters to be alone at their apartment after school. Therefore, her parents arranged
for K.C. and her sisters to stay at the appellant’s apartment until they returned home from
work.
K.C. said that prior to moving to Tennessee, she became interested in studying the
“gothic subculture,” witchcraft, and different religions, including Wicca. She explained that
“gothic subculture” was “not people that like to just dress in black and they look really scary.
It’s just, like, a way of expressing yourself, not trying to look like everyone else just being
different and being yourself.” She said that her views differed from her parents and that she
did not discuss the subject with them.
Near the end of K.C.’s freshman year, her relationship with the appellant changed.
K.C. said that she was frequently alone with him because she got home from school earlier
than her sisters. During the time she spent with the appellant, K.C. told him about her
interests. The appellant told her that he shared her interests, and they formed a close bond.
K.C. said she trusted the appellant. She told him that she was looking for someone special
and that she was afraid that no one would like her. The appellant told K.C. that he knew
about Wicca, that he had magic powers, and that he could read minds. He also told her that
1
It is the policy of this court to refer to minor victims of sexual offenses by their initials.
2
The indictment further charged the appellant with the aggravated sexual battery of V.C. However,
the count relating to V.C. was severed prior to trial.
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he had a black candle which gave him visions and allowed him to see into the future. K.C.
said that the appellant lit his black candle and that the flame pointed towards her. He told
her that “the candle thought that [she] was doubting him.” K.C. said the appellant made it
look real, so she believed him.
K.C. said that the appellant repeatedly told her that she could get magic powers by
having sex with him, and she eventually capitulated. The first incident occurred in the
appellant’s bedroom, where they had been talking and watching television. The appellant
played a pornographic video to distract her and blindfolded her with a black bandana. K.C.
stated that the appellant inserted his penis into her vagina and that she began crying. She told
him that she was scared and wanted to stop. At first, the appellant said that he could not stop.
However, after K.C. repeatedly told him to stop, he complied. K.C. said she was terrified,
in pain, and bleeding.
K.C. said that the next incident happened approximately one week later in the
appellant’s bedroom. During the week, the appellant told K.C. that he was weak because she
had not let him “finish,” which meant have an orgasm. The appellant told K.C. that she had
taken some of his powers and that he needed to “finish” to get them back. He told K.C. that
he would die in his sleep because of his weakness. The appellant also acted as if he were in
a lot of pain. K.C. said she was worried about the appellant, so she agreed to have sex with
him. She stated that the appellant again penetrated her vaginally.
K.C. estimated that she and the appellant had sex approximately twenty times, once
in her bedroom and the other times in his bedroom. Each time, the appellant told her that he
needed sex because he was in pain. The appellant told K.C. that his entire body hurt and that
if he died from the pain, he would come back to haunt her. K.C. said, “He meant it to be a
joke and I laughed, but I didn’t really think it was funny and I was scared.”
K.C. stated that the appellant had pornographic videos which he played during
approximately half of the incidents. The appellant kept his pornographic videos in a cabinet
under his fish tank. K.C. identified videos that were seized from the appellant’s bedroom as
the pornographic videos. She said that one of the videos was a “Japanese cartoon[].” The
other videos were “First Time Teens, Teenage Heartbreakers, Teen Dream Number Thirteen,
[and] Young as They Come.” K.C. also identified photographs of the appellant’s bedroom.
A black bandana, a fish tank, and two candles were visible in the photographs. One of the
candles was black with “red stuff” in it, which the appellant said was his blood.
K.C. recalled that the appellant usually convinced her to have sex by saying he was
in pain. However, on one occasion during the summer when K.C.’s sister, A.C., was
scheduled to have surgery on her knee, the appellant told K.C. that she needed to have sex
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with him so that he would have the power to heal A.C. He said that if she refused, A.C.
would be crippled. K.C. said she felt bad and wanted A.C. to get well, so she had sex with
the appellant.
K.C. recalled that the last incident happened after the appellant told K.C. that he had
looked into his candle and saw that her mother, who was scheduled to have surgery, was
going to die. Because she was frightened for her mother, K.C. had sex with the appellant.
Her sisters were usually downstairs when the offenses occurred.
K.C. said that in addition to vaginal intercourse, the appellant had her touch his penis
with her hand approximately five times. He told her to move her hand back and forth. She
complied, hoping that he would not ask to have sex with her. He also requested that she
perform oral sex on him, but she refused. K.C. said the appellant performed oral sex on her
two or three times in his bedroom. She said he also digitally penetrated her and touched her
breasts, over and under her clothes, almost every time they had sex. K.C. said that the
appellant attempted to have anal sex but that she moved away from him. She said the
appellant laughed at her, making her feel worse about what was happening.
K.C. said that the last incident occurred in September following her mother’s surgery.
She told the appellant that she did not want to have sex with him anymore. She gave the
appellant excuses, saying she was tired from school or having her period. She recalled that
every time she rebuffed him, the appellant acted angry and would not talk to her. He told her
that she did not care about him and that she must want him to die.
K.C. stated that during her sophomore year, she told some friends and her ex-
boyfriend about the abuse. The next day, her ex-boyfriend insisted that she tell the guidance
counselor. When K.C. disclosed the abuse to the school authorities, she was taken to the
Child Advocacy Center (CAC) and was examined by members of the Our Kids Center.
K.C. stated that the only family member she told about the abuse was A.C., explaining
that the appellant was also abusing A.C. K.C. said the appellant told A.C. “[s]ome of the
same things.” Specifically, K.C. recalled that once when they were in the appellant’s
bedroom, the appellant told her and A.C. that he was weak and sick and needed them to have
sex with him to give him strength. K.C. said that she did not want to have sex with the
appellant and that she told A.C. not to have sex with him. However, because A.C. was
concerned about the appellant, she went upstairs to the appellant’s bedroom and had sex with
him. When A.C. came downstairs, she told K.C. that “she guessed [the appellant] was
feeling a little bit better.”
K.C. said that her grades started to drop because of the abuse and that the appellant
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implied she was not to tell her parents about the abuse. The appellant told K.C. that her
parents did not understand her as well as he did and that her parents thought she was a
“problem child.” K.C. said she was afraid that if she told her parents about the abuse, her
father would “do something bad and end up in jail.” She also feared that her parents would
think she was lying and throw her out of the house.
A.C. testified that she was eleven years old and in the fifth grade when her family
moved to Nashville. She said that she and her sisters often stayed at the appellant’s
apartment. She said that the appellant shared her love of music and that she and the appellant
bonded by recording music together. She said they also bonded because they were both
middle children.
A.C. recalled that near the end of fifth grade, she got sick at school and that the
appellant picked her up. When they got back to his apartment, A.C. asked the appellant
about sex. A.C. said that because her friends talked about sex, she felt left out when she did
not understand the discussion. The appellant told A.C. about sex, explaining “that when
people had sex that the sperm would come out from the penis and the woman could become
pregnant.” He also showed her some “Anime” pictures depicting people having sex. A.C.
asked if the appellant had more pictures, and he said yes.
The appellant showed A.C. pornographic videos depicting people who appeared to
be teenagers or older having sex. During the videos, the appellant told A.C. “that he was
horny and that he was in pain and that if [she] didn’t help him that he could die.” The
appellant asked A.C. to help him. A.C. said that the appellant appeared to be in pain and that
she believed the appellant’s claim. Because she cared about the appellant, she “helped him.”
The appellant asked if she wanted to see what was happening. When she said no, he
blindfolded her with a black bandana. She stated that the appellant touched her vagina with
his penis and that it hurt. When she told the appellant about the pain, he told her that “the
first time always hurts.” A.C. said that when K.C. came home, the appellant told her that he
and A.C. had “experimented.” A.C. said she knew the appellant was also having sex with
K.C.
A.C. said that a few days later, K.C. had sex with the appellant in his bedroom, but
he did not have an orgasm. The appellant asked A.C. to help him, stating that he would die
if he did not “finish.” A.C. said that she agreed and that the appellant penetrated her vagina
with his penis.
A.C. also described a third incident. She said that the family was playing in the pool
and that the appellant went to his apartment to put on his swimming trunks. A.C. went with
him. He told A.C. to touch his penis with her hand. Although she did not want to, she
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complied. The appellant claimed he was in pain, so A.C. had sex with him. A.C. said that
all three incidents happened in the summer of 2007.
A.C. said the appellant told her that he could communicate with their deceased
grandfathers. Additionally, he had a black candle and told her that he had magic powers. The
appellant told her he could see into the future and could tell A.C. and K.C. who their
boyfriends and husbands would be. The appellant said that he could will his powers to A.C.
if she touched him. A.C. said she believed him.
A.C. stated that she did not tell her parents because she feared they would not want
her anymore and would give her away. Also, the appellant told A.C. that he would kill her
if she told her parents.
A.C. said that the appellant was arrested around Thanksgiving 2007 and that she was
interviewed by a woman about the abuse. She told the woman that she had sex with the
appellant the first time because he said he had magic powers and could see A.C.’s soul mate.
She later told the woman that the first time she had sex with the appellant occurred after he
showed her a pornographic video and said he was in pain. She explained that she gave
different versions of events “because I made myself forget and I remember now.”
Metropolitan-Nashville Police Detective Jeff Wiser testified that on November 30,
2007, he met the victims and someone from the Department of Children’s Services (DCS)
at the CAC to discuss the appellant’s molestation of the victims. At the CAC, the victims
were interviewed. After the interviews were completed, Detective Wiser met with the
victims’ parents. He asked one of them to wear a body wire and attempt to gain an admission
from the appellant. Later that day, the victims’ father agreed to wear the body wire and
confront the appellant.
Detective Wiser said that the victims’ father went to the Criminal Justice Center (CJC)
where he was equipped with a body wire. According to the plan devised by police, the
victims’ father parked his car in the lot near the appellant’s apartment and had the appellant
get into the car with him. The conversation was recorded, and the recording was played for
the jury.
During the conversation, the victims’ father confronted the appellant, saying that K.C.
had revealed that the appellant had sexually abused her. The appellant said that “nothing
really happened.” He said that K.C. asked him about sex, and he explained sex to her. The
victims’ father told the appellant that he did not believe him and that K.C. said that A.C. had
also been abused. The appellant said that he had shown the victims “some Anime shit.” He
surmised that the victims made the allegations because they were mad at him for disciplining
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them. The victims’ father asserted that he had been told details of the abuse, including the
appellant’s claims that he had magical powers and that he was in pain. The appellant denied
the accusations. The victims’ father pressed the issue, saying he knew the appellant had
penetrated both K.C. and A.C. He said the victims just wanted the abuse to stop. He told the
appellant that he understood that the appellant could be reacting to abuse he suffered as a
child. The appellant said he “had a feeling” the subject would “come up.” He stated that he
was able to engage the victims in sex because they “were curious.” The appellant said that
he was scared the first time he had sex with A.C. He said, “They were my nieces, my blood,
my little brother’s babies.” He said he did not know how many times he had sex with K.C.
He said the victims “put me in a certain level that it was hard to get out of.” The appellant
said that K.C. reminded him of a girlfriend who had died in an accident and that he had tried
to avoid being alone with K.C. because she reminded him of his deceased girlfriend. The
appellant stated that he tried to block a lot of it from his memory. He maintained, “It wasn’t
all me. . . . They were so curious.” He said that the victims did not behave like children
when they asked him about sex. He said they “made me go to a certain level . . . . Kids do
that to me.” He stated that he did not use a condom because K.C. did not want him to. The
appellant said that he was not “turned on” by children. He said that “the way [he and the
victims] talked about things, all of us got turned on.”
Detective Wiser testified that at the end of the conversation between the victims’
father and the appellant, the appellant was arrested. Detective Wiser said that as the victims’
father got out of the car, he fell to the pavement and started crying.
Detective Wiser said that police searched the appellant’s bedroom. They found
pornographic videos and a black bandana. Detective Wiser said that after the appellant was
arrested, he never complained about a physical disability, discomfort, or pain.
Michelle Ray with the Davidson County Sheriff’s Office said that she was the
“contact person for the inmate phone system.” Detective Jeff Wiser contacted her about
recordings of telephone calls the appellant made from jail to his mother. Ray made copies
of the telephone calls and put them on a compact disc. The recordings of the appellant’s jail
telephone conversations with his mother and sisters were played for the jury. During one of
the calls, the appellant spoke with his sister and asked what was happening at his mother’s
apartment. His sister said, “Let’s see, you raped your nieces and you’re asking what
happened?” She asked if he had anything to say, and he said no. When the appellant’s
mother got on the telephone, she asked the appellant, “What have you done?” She asked the
appellant if he was guilty of the accusations. When the appellant did not respond, his mother
said she believed his silence meant he was guilty. He said the victims caught him “in a weak
moment,” and he asked his mother to forgive him. She told him that the victims were
“devastated” because the appellant “manipulated” their trust in him. The appellant said that
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he knew he would have to pay for what he had done, but he claimed that he was “blacking
out things” and could not recall doing them. The appellant said that he was ashamed.
During another call, a different sister told the appellant to stop calling their mother.
The appellant told her that she did not understand and that he had been under the effects of
medication.
Sue Ross, a pediatric nurse practitioner, testified that she worked with the Our Kids
Center, “an outpatient facility of General Hospital,” which sees children following
allegations of sexual abuse. She said that the nurse practitioner who examined K.C. and A.C.
was unavailable to testify at trial; nevertheless, Ross testified from the reports made of the
victims’ examinations.
Ross stated that because the allegations had not been made within seventy-two hours
of the sexual abuse, the victims were seen at the Our Kids Center office on Hayes Street
instead of at the hospital. Ross explained that a rape kit was not performed because of the
length of time since the last instance of abuse.
According to the report, K.C. said she had sexual contact with the appellant “dating
back to May of ‘07.” K.C. reported “penile-vaginal penetration[,] . . . digital contact with
the breast, penile contact to her hands, and oral contact to her genitalia.” K.C. was tested for
pregnancy and sexually transmitted diseases. The tests were negative.
Ross testified that K.C.’s physical examination revealed a “hymenal transection,”
which indicated that “there ha[d] been penetrating trauma to the area” consistent with K.C.’s
allegations of penile penetration. K.C. also reported that after the first incident of abuse, she
felt a burning sensation when she urinated and pain when she walked. Ross opined that these
symptoms were also consistent with sexual abuse.
Ross stated that A.C. also reported penile-vaginal contact and/or penetration;
however, the physical examination revealed no findings of sexual abuse. Ross asserted that
findings indicating “blunt penetrating trauma” were “the exception. It’s not the norm.” She
said that medical personnel are typically unable to find physical evidence to support sexual
abuse claims.
The victims’ father testified that he, his wife, and his daughters moved from Chicago
to Nashville on June 17, 2006, to be closer to his mother; his brother, the appellant; and his
sisters. He said he encouraged the victims to bond with the appellant, thinking the appellant
would be as protective of the children as he was. He stated that he had no reason not to trust
the appellant.
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The victims’ father said that he knew the appellant had a back injury and was on
disability. However, he said the appellant never displayed any noticeable signs of pain.
Around November 30, 2007, the victims’ father learned that the appellant had
molested K.C. and A.C. He said that his first reaction “was not a very humane one”;
however, he promised the victims that he would not kill the appellant. Instead, he agreed to
wear a body wire for police.
The sole defense witness was Craig Glisan, the Assistant Director of Nursing at the
CJC. He said that the appellant’s medical chart reflected that the appellant had a
laminectomy in the lumbar region of his spine because of degenerative disk disease. He said
that degenerative disk disease could cause symptoms such as numbness in the lower
extremities, moderate to severe intermittent pain, or decreased flexibility in the lower back.
He also stated that a male suffering from degenerative disk disease could have sexual
difficulty or dysfunction which could affect the ability to have an erection or the strength of
the erection. However, Glisan stated that while the appellant was confined in the CJC, he
never reported any symptoms other than pain and numbness in his left foot.
Regarding K.C., the jury found the appellant guilty of seven counts of rape by fraud,
a Class B felony; seven counts of statutory rape by an authority figure, a Class C felony; and
seven counts of assault, a Class A misdemeanor, as a lesser-included offense of rape.
Regarding A.C., the jury convicted the appellant of three counts of rape of a child, a Class
A felony. The trial court imposed a sentence of twenty years for each rape of a child
conviction, ten years for each rape by fraud conviction, three years for each statutory rape by
an authority figure conviction, and eleven months and twenty-nine days for each assault
conviction. The court merged the assault and statutory rape convictions relating to K.C. into
the rape by fraud convictions and ordered that the sentences for rape by fraud be served
consecutively. The court further ordered that the sentences for rape of a child be served
consecutively to each other and consecutively to the rape by fraud sentences, for a total
effective sentence of 130 years.
On appeal, the appellant argues that the trial court erred by denying his motion to
sever, that the trial court erred by denying his motion to exclude the pornographic videos
found in his bedroom, that the evidence was insufficient to sustain his convictions of rape
by fraud and statutory rape by an authority figure, and that the trial court erred in sentencing.
II. Analysis
A. Timeliness of the Notice of Appeal
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Initially, we must address the State’s contention that the appeal should be dismissed
for failure to file a timely notice of appeal. The record reflects that the trial court entered an
order denying the appellant’s motion for new trial on September 4, 2009. On November 13,
2009, the trial court entered an order appointing appellate counsel and allowing the appellant
to proceed with his appeal to this court. The appellant filed a notice of appeal that same day.
The State contends that the trial court lost jurisdiction over the case on October 4, 2009,
thirty days after the entry of the order denying the appellant’s motion for new trial, and,
therefore, that the court’s order appointing appellate counsel was a nullity. The State further
contends that because appellate counsel filed a notice of appeal on November 13, 2009,
beyond the thirty-day time limit for filing, the notice was untimely.
Rule 3(b) of the Tennessee Rules of Appellate Procedure provides that a criminal
defendant may appeal to this court following “a final judgment in a . . . post-conviction
proceeding.” Rule 4(a) of the Tennessee Rules of Appellate Procedure instructs that
the notice of appeal required by Rule 3 shall be filed with and
received by the clerk of the trial court within 30 days after the
date of entry of the judgment appealed from; however, in all
criminal cases the “notice of appeal” document is not
jurisdictional and the filing of such document may be waived in
the interest of justice.
Clearly, the appellant’s notice of appeal was filed beyond the thirty-day time limit.
However, this court may waive the timely filing. In the interest of justice, we will excuse the
late filing and address the appellant’s issues.
B. Severance
The appellant was charged in a multi-count indictment with the offenses involving
K.C., A.C., and V.C. Prior to trial, the appellant filed a motion to sever the counts relating
to each victim. The appellant argued that the counts did not involve a common scheme or
plan and “that evidence of each set of alleged offenses would [not] be admissible upon a trial
of the others.”
At the severance hearing, Eric Fitzgerald, a detective with the Metro Sex Crimes Unit,
testified that he assisted in the investigation of the charges against the appellant. Detective
Fitzgerald said that there were allegations that the appellant molested his nieces, K.C. and
A.C., in his bedroom. Detective Fitzgerald said that “[a]s far as how it would have transpired
it was, kind of, the same with all of them.” He said the appellant told the victims that he was
weak and ill, that he had magic powers, and that he needed the victims to help him rejuvenate
by having sex with him.
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Detective Fitzgerald stated that the appellant told K.C. that her mother might die
during surgery and that he needed to have sex in order to have the powers necessary to heal
her mother. He also told K.C. that she needed to have sex with him so that he would have
to power to heal A.C. after her knee surgery. The appellant told K.C. that he believed she
was the reincarnation of his deceased girlfriend.
Detective Fitzgerald stated that both K.C. and A.C. said the appellant showed them
“carto[o]n porno.” Police discovered pornographic videos in the appellant’s bedroom in the
location the victims described. Detective Fitzgerald said that when the victims’ father wore
a body wire, the appellant admitted to him that he had watched pornographic videos with the
victims and had molested them.
Detective Fitzgerald said that both of the victims were virgins with limited sexual
knowledge prior to being abused by the appellant. Additionally, the appellant used a
blindfold on both victims.
The State conceded that the count involving V.C. should be severed. However, the
State argued that the offenses involving K.C. and A.C. were part of a common scheme or
plan because the appellant told both victims that he had magic powers and that he needed sex
to alleviate his pain. Additionally, the appellant blindfolded them and showed both of them
pornographic videos. Further, all but one offense with each victim occurred in the
appellant’s bedroom. The State argued that the evidence of offenses involving each victim
would be admissible at the trial of the other because “[i]t establishes a complete picture for
the jury of the relationships between the parties.” Further, the State contended that the
appellant’s confession to the victims’ father related to both victims. The appellant argued
that the incidents were similar but that the sexual acts were separate.
At the conclusion of the severance hearing, the trial court said,
You know, I hear a lot of these case[s] and the Court
ordinarily will grant a severance in a case similar to this. But
the Court believes that this does present a case where there is a
common scheme or plan; and, so, the trial involving [K.C.] and
[A.C.] will be tried together.
On appeal, the appellant argues that the trial court erred in denying his motion to
sever. Specifically, the appellant contends that in order to consolidate the offenses involving
K.C. and A.C., the trial court was required to find that there was a “common scheme or plan”
and that evidence of one crime would be admissible in the trial of the other. The appellant
contends that neither requirement was met. The State concedes that the trial court erred in
failing to sever the offenses involving K.C. from the offenses involving A.C., acknowledging
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that the trial court failed to find that the evidence of the charges involving one victim would
be admissible in the trial involving the other victim. However, the State maintains that this
error was harmless.
Rule 8(b) of the Tennessee Rules of Criminal Procedure states that two or more
offenses may be consolidated for trial if “the offenses constitute parts of a common scheme
or plan” or if “they are of the same or similar character.” See Tenn. R. Crim. P. 8(b). Rule
13(b) provides that the trial court may order severance of offenses prior to trial if such
severance could be obtained on motion of a defendant or the State pursuant to Rule 14. See
Tenn. R. Crim. P. 13(b). Tennessee Rule of Criminal Procedure 14(b)(1) provides that “[i]f
two or more offenses have been joined or consolidated for trial pursuant to Rule 8(b), the
defendant has the right to a severance of the offenses unless the offenses are part of a
common scheme or plan and the evidence of one would be admissible in the trial of the
others.”
Our supreme court has held that “decisions to consolidate or sever offenses pursuant
to Rules 8(b) and 14(b)(1) are to be reviewed for an abuse of discretion.” State v. Shirley,
6 S.W.3d 243, 247 (Tenn. 1999). “A holding of abuse of discretion reflects that the trial
court’s logic and reasoning was improper when viewed in light of the factual circumstances
and relevant legal principles involved in a particular case.” State v. Moore, 6 S.W.3d 235,
242 (Tenn. 1999). As a trial court must decide the motion based solely upon evidence
adduced at the hearing on the motion, this court should look to that evidence and the trial
court’s findings of fact and conclusions of law to determine whether the trial court’s ruling
was an abuse of discretion. Spicer v. State, 12 S.W.3d 438, 445 (Tenn. 2000).
In examining a trial court’s determination on a severance issue, the primary
consideration is whether the evidence of one offense would be admissible in the trial of the
other if the offenses remained severed. Id. Our supreme court has emphasized the need to
establish the “substantial interrelationship between the evidence required to prove each of
several offenses.” State v. Johnson, 342 S.W.3d 468, 475 (Tenn. 2011). Specifically, the
court noted that “when ‘the proof or defense of one charge necessarily involves the proof or
defense of another charge, sequential prosecutions of the two charges burden both the
defendant and the state with repetitive presentation of evidence.’” Id. (quoting People v.
Rogers, 742 P.2d 912, 919 (Colo. 1987)).
Essentially, “any question as to whether offenses should be tried separately pursuant
to Rule 14(b)(1) is ‘really a question of evidentiary relevance.’” Spicer, 12 S.W.3d at 445
(quoting Moore, 6 S.W.3d at 239). As such, the trial court must determine from the evidence
presented that:
(1) the multiple offenses constitute parts of a common scheme
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or plan, (2) evidence of [the] offense is relevant to some
material issue in the trial of . . . the other offenses, and (3) the
probative value of the evidence of other offenses is not
outweighed by the prejudicial effect that admission of the
evidence would have on the defendant.
Id. (citations omitted); see also State v. Dotson, 254 S.W.3d 378, 386 n.5 (Tenn. 2008).
In the instant case, the trial court found that the offenses were part of a common
scheme or plan. Generally, common scheme or plan evidence falls into one of three
categories:
(1) offenses that reveal a distinctive design or are so similar as
to constitute “signature” crimes; (2) offenses that are part of a
larger, continuing plan or conspiracy; and (3) offenses that are
all part of the same criminal transaction.
Moore, 6 S.W.3d at 240. Our supreme court has stated that “[e]ven though offenses may be
similar in many respects, they cannot be classified as signature crimes if they lack a distinct
modus operandi.” Shirley, 6 S.W.3d at 248.
Furthermore, this court has previously noted, “A common scheme or plan for
severance purposes is the same as a common scheme or plan for evidentiary purposes.” State
v. Hoyt, 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995), overruled on other grounds by
Spicer, 12 S.W.3d at 447. Under Tennessee Rule of Evidence 404(b), evidence that a
defendant committed a harmful act other than the one for which he is on trial may be
admissible. See Neil P. Cohen et al., Tennessee Law of Evidence, § 4.04[7][a] (LEXIS
publishing, 5th ed. 2005).
In the instant case, the proof adduced at the severance hearing revealed that after
earning his nieces’ trust, the appellant exploited his relationship with them to gain sexual
favors. The appellant told both victims that he had magic powers and that he could
rejuvenate himself by having sex with them. He told both victims that he was in pain and
required sex to alleviate his pain. He showed both victims pornographic videos and
blindfolded them. Based upon the foregoing, we agree with the trial court that the instant
offenses were part of a common scheme or plan.
However, as the State acknowledges, the trial court made no specific findings
regarding the admissibility of the offenses involving K.C. in the trial of the offenses
involving A.C. or vice versa. The State concedes that this was error. We agree.
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Regardless, the State contends that the error in denying the appellant’s motion for
severance was harmless. Our supreme court has explained that to determine harmless error
in severance cases, the proper inquiry “is to determine what harm, if any, the [appellant]
suffered as a result of the improper joinder of the offenses and whether the gravity of the
error warrants a new trial.” Dotson, 254 S.W.3d at 388. As the Dotson court explained, no
conviction should be reversed on appeal “except for errors which affirmatively appear to
have affected the result of the trial on its merits.” Id. (internal quotations omitted); see
also Tenn. R. App. P. 36(b). When determining the effect of an error, “considering the whole
record, [t]he more the proof exceeds that which is necessary to support a finding of guilt
beyond a reasonable doubt, the less likely it becomes that an error affirmatively affected the
outcome on its merits.” Id. (internal quotations omitted). In other words, “[t]he key question
is whether the error likely had an injurious effect on the jury’s decision-making process. If
the answer is yes, the error cannot be harmless.” Id. at 389.
The court in Dotson determined that the trial court erred in failing to grant Dotson’s
motion for severance. In examining the effect of the error, the court noted:
While clearly sufficient to convict on each charge, the nature of
the evidence presented against [Dotson] as to each and every
element of the two robbery charges and the two indictments for
aggravated robbery varies in quality and degree. In two of the
robberies, there were two employees who witnessed the crimes;
in each instance, one of the two victims made a positive
identification. In the others, the one employee who was
involved identified [Dotson]. At trial, however, the jury heard
the collective testimony of all four eyewitnesses on each
indictment. The similarity of the crimes, where the risk of
prejudice is higher, naturally buttressed the State’s theory on all
charges and their various elements. Because the trial court
erroneously refused to sever each indictment and provide
separate trials, our obvious concern is whether a single jury
could independently assess each charge on its individual merits.
Any inference that [Dotson] had a propensity to rob cigarette
delivery trucks would have been perfectly logical.
Id. at 389 (citation and footnote omitted).
We conclude that the instant case is distinguishable from Dotson. In Dotson, the
State’s proof was based primarily on the collective testimony of the eyewitnesses to the
offenses. As our supreme court noted, the quality and degree of the testimony varied as to
each offense. Id. The court concluded that “[t]he similarity of the crimes, where the risk of
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prejudice is higher, naturally buttressed the State’s theory on all charges and their various
elements.” Id. Such is not the case here. The appellant admitted to the victims’ father that
he committed the offenses, and the admission was recorded. The appellant also admitted his
guilt to his mother during telephone calls he made from jail. Both victims testified in detail
about the offenses, describing the manner in which the appellant persuaded them. Further,
there were physical findings supporting K.C.’s version of events. Explaining its conclusion
in Dotson, our supreme court stated that “we cannot be sure as to what evidence might have
tipped the scales in favor of the State” and surmised that the jury likely convicted Dotson
based upon his propensity to commit such crimes. Id. at 390. Unlike Dotson, the appellant’s
admission of guilt in the instant case was a critical factor, leading us to conclude that the jury
did not rely upon propensity evidence to convict the appellant.
Finally, we note that the jury convicted the appellant of assault of K.C. as a lesser-
included offense of rape. This verdict is a clear indication that the jury evaluated each charge
and reached a verdict based on the individual proof of each offense. We conclude that the
error in failing to sever the offenses did not have “an injurious effect on the jury’s decision-
making process.” Id. at 389. Therefore, we conclude that the error was harmless.
C. Admission of Videos
The appellant next contends that the trial court erred in denying his motion to exclude
the pornographic videos which were found in his bedroom. The appellant argues that the
evidence was inadmissible under Tennessee Rule of Evidence 404(b) which “specifically
prohibits the State from introducing evidence of [a] person’s character or a trait of character
or other acts in order to show action in conformity with the character trait.” In the
alternative, the appellant argues that the videos should have been excluded under Rule 403
because the probative value of the videos was outweighed by their prejudicial effect.
Prior to trial, the appellant filed a motion to exclude under Tennessee Rule of
Evidence 404(b) pornographic videos that police seized from his bedroom. At the hearing
on the motion, the State did not address the Rule 404(b) issue but argued that the videos were
relevant because the appellant played the videos for the victims “to set their minds at ease
or to give them something else to think about while they were having sex.”
The trial court stated,
As a general rule most courts keep out prior bad acts. But these
particular acts don’t appear as really prior bad acts. These are
acts that are occurring during this time period where these
events allegedly occurred. And if, in fact, the young ladies saw
these tapes the Court believes that it is relevant. . . . I don’t fit
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[the videos] into the 404 category because it is something
occurring apparently simultaneously with the other alleged acts.
The record reflects that the videos were not played for the jury; instead, K.C. was
shown the video covers. She read the titles aloud and identified them as the videos the
appellant played for her. The titles included “First Time Teens, Teenage Heartbreakers, Teen
Dream Number Thirteen, [and] Young as They Come.”
The admissibility of evidence generally lies within the sound discretion of the trial
court, and an appellate court will not interfere with the lower court’s exercise of that
discretion absent a clear showing of abuse. State v. Carruthers, 35 S.W.3d 516, 574 (Tenn.
2000). The trial court’s discretion in determining the admissibility of evidence is generally
circumscribed by the Tennessee Rules of Evidence, including evidentiary rules of relevance.
Tennessee Rule of Evidence 402 provides that “[a]ll relevant evidence is admissible except
as [otherwise] provided. . . . Evidence which is not relevant is not admissible.” “‘Relevant
evidence’ means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.” Tenn. R. Evid. 401; see also State v. Kennedy, 7 S.W.3d 58, 68
(Tenn. Crim. App. 1999). However, even relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” Tenn. R. Evid. 403.
Tennessee Rule of Evidence 404 provides as follows:
(b) Other Crimes, Wrongs, or Acts. - Evidence of other
crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity with the
character trait. It may, however, be admissible for other
purposes. The conditions which must be satisfied before
allowing such evidence are:
(1) The court upon request must hold a hearing outside
the jury’s presence;
(2) The court must determine that a material issue exists
other than conduct conforming with a character trait and must
upon request state on the record the material issue, the ruling,
and the reasons for admitting the evidence;
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(3) The court must find proof of the other crime, wrong,
or act to be clear and convincing; and
(4) The court must exclude the evidence if its probative
value is outweighed by the danger of unfair prejudice.
See also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005), State v. Parton, 694 S.W.2d
299, 302 (Tenn. 1985). A trial court’s decision regarding the admission of Rule 404(b)
evidence will be reviewed under an abuse of discretion standard; however, “the decision of
the trial court should be afforded no deference unless there has been substantial compliance
with the procedural requirements of the Rule.” State v. DuBose, 953 S.W.2d 649, 652 (Tenn.
1997).
Generally, “[o]nly in an exceptional case will another crime, wrong, or bad act be
relevant to an issue other than the accused’s character. Such exceptional cases include
identity, intent, motive, opportunity, or rebuttal of mistake or accident.” State v. Luellen, 867
S.W.2d 736, 740 (Tenn. Crim. App. 1992). In making its decision regarding the admissibility
of the testimony, the trial court must first determine if the offered testimony is relevant to
prove something other than the appellant’s character.
The trial court found, and the State argues on appeal, that the videos were not prior
bad acts because the appellant did not play them for the victims prior to the offenses. Instead,
he played the videos “simultaneously” with the offenses.
The goal of Rule 404(b) is to bar character evidence regarding other acts which are
“used to prove that a criminal accused acted in conformity with character”; in other words,
the rule prohibits evidence used to prove the accused’s propensity to commit the crime.
Cohen, Tennessee Law of Evidence § 4.04[7][a]. In the instant case, the pornographic videos
were not used to show the appellant’s propensity to commit the crimes. The videos were
used to corroborate the testimony of the victims, both of whom testified that the appellant
showed them the pornographic videos prior to and while molesting them. Therefore, the
videos were not evidence of another bad act; the videos were evidence of the instant crimes.
See State v. Terry Stewart Moore, No. E2001-00153-CCA-R3-CD, 2002 WL 1787947, at
*9 (Tenn. Crim. App. at Knoxville, Aug. 2, 2002) (concluding that evidence of defendant’s
conduct did not violate Rule 404(b) because “[t]he conduct was . . . not a prior bad act but
a concurrent bad act inseparable from the commission of the crime”). Accordingly, we
conclude the trial court did not err in admitting the videos under Rule 404(b).
Turning to the appellant’s argument that the videos were inadmissible pursuant to
Tennessee Rule of Evidence 403, we again note that the videos were used to corroborate the
victims’ testimony. Moreover, only the covers of the videos were shown to the jury; the
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videos were not played in court. Therefore, the prejudicial effect of the videos was minimal.
We conclude that the trial court did not err in finding that the videos were admissible.
D. Sufficiency of the Evidence
The appellant contends that the evidence was insufficient to sustain his convictions
for rape by fraud and statutory rape by an authority figure. On appeal, a jury conviction
removes the presumption of the appellant’s innocence and replaces it with one of guilt, so
that the appellant carries the burden of demonstrating to this court why the evidence will not
support the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The
appellant must establish that no reasonable trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319 (1979); Tenn. R. App. P. 13(e).
Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
1. Rape by Fraud
To sustain the appellant’s rape by fraud convictions, the State was required to prove
that the appellant engaged in unlawful sexual penetration of the victim and that the sexual
penetration was accomplished by fraud. See Tenn. Code Ann. § 39-13-503(a)(4). Sexual
penetration includes “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other
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.” Tenn. Code Ann. § 39-13-501(7). Regarding the rape by fraud
convictions in counts 2, 5, 8, 11, and 14, K.C. testified that the appellant penetrated her
vagina with his penis on five separate occasions. For the conviction in count 17, K.C.
testified that the appellant performed cunnilingus on her. For the conviction in count 20,
K.C. testified that the appellant digitally penetrated her.
Tennessee Code Annotated section 39-11-106(a)(13) provides that “‘[f]raud’ means
as used in normal parlance and includes, but is not limited to, deceit, trickery,
misrepresentation and subterfuge, and shall be broadly construed to accomplish the purposes
of this title.” This court has previously observed that
the Tennessee Supreme Court has set forth its interpretation of
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the term “fraud” by stating that, “[a] person acts fraudulently
when (1) the person intentionally misrepresents an existing,
material fact or produces a false impression, in order to mislead
another or to obtain an undue advantage, and (2) another is
injured because of reasonable reliance upon that representation.”
State v. Raymond Mitchell, III, No. M1996-00008-CCA-R3-CD, 1999 WL 559930, at *5
(Tenn. Crim. App. at Nashville, July 30, 1999) (quoting Hodges v. S.C. Toof & Co., 833
S.W.2d 896, 901 (Tenn. 1992)). Rape by fraud is a Class B felony. Tenn. Code Ann. § 39-
13-503(b).
In the instant case, the appellant induced K.C. to have sex with him by telling her that
he had magic powers and could give her magic powers through sex. The appellant argues
that K.C. should not have believed his claims, especially after the first time when she failed
to gain the magic powers. However, the appellant repeatedly told K.C., a fourteen-year-old
child, that he was weak, in pain, and would die if she did not have sex with him. The
appellant used a “magic” candle to convince her of his powers and threatened to haunt her
after his death. The appellant further told K.C. that she needed to have sex with him to grant
him sufficient power to heal her mother and A.C. after they had surgery; otherwise, they
would be crippled or die. We conclude that the appellant’s inducements constitute “fraud”
and that the jury had sufficient evidence to convict the appellant of the rape by fraud of K.C.
2. Statutory Rape by an Authority Figure
The appellant does not dispute that K.C. was fourteen years old at the time of the
offenses or that the acts of penetration did not occur. Instead, he contends that “a plain
reading of the statute indicates that the [appellant’s] position of trust has to be created by
‘virtue of the [appellant’s] legal, professional, or occupational status and used the position
of trust or power to accomplish the sexual penetration.’” Additionally, he contends that the
State failed to prove he was in a position of trust over K.C. because the evidence at trial
established that he was only K.C.’s “friend.”
Tennessee Code Annotated section 39-13-532 provides as follows:
(a) Statutory rape by an authority figure is the unlawful sexual
penetration of a victim by the defendant . . . when:
(1) The victim is at least thirteen (13) but less than
eighteen (18) years of age;
(2) The defendant is at least four (4) years older than the
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victim; and
(3) The defendant was, at the time of the offense, in a
position of trust, or had supervisory or disciplinary power over
the victim by virtue of the defendant’s legal, professional or
occupational status and used the position of trust or power to
accomplish the sexual penetration; or
(4) The defendant had, at the time of the offense, parental
or custodial authority over the victim and used the authority to
accomplish the sexual penetration.
Statutory rape by an authority figure is a Class C felony. Tenn. Code Ann. § 39-13-532(b).
Statutory rape by an authority figure required that at the time of the offenses, the
appellant was in a position of trust, or had supervisory or disciplinary power over the victim
by virtue of the appellant’s legal, professional or occupational status. Tenn. Code Ann. § 39-
13-532(a)(3). The State was not required to prove both.
Regarding a position of trust, our supreme court has stated,
The position of parent, step-parent, babysitter, teacher, coach
are but a few obvious examples. The determination of the
existence of a position of trust does not depend on the length or
formality of the relationship, but upon the nature of the
relationship. Thus, the court should look to see whether the
offender formally or informally stood in a relationship to the
victim that promoted confidence, reliability, or faith.
State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996).
The appellant claims that the proof showed he was only K.C.’s “friend.” However,
the evidence at trial established that the victims’ parents entrusted him with the victims’ care.
The victims’ father testified that he thought the appellant would take care of the victims as
if they were the appellant’s own children. Moreover, the appellant cultivated a relationship
with the victims by showing interest in their hobbies, such as music and religion. After he
formed a bond of trust with them, he exploited that bond and persuaded them to have sex
with him. We conclude that the proof was sufficient to sustain the appellant’s convictions
for statutory rape by an authority figure of K.C.
E. Sentencing
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The appellant challenges the trial court’s imposition of an effective 130-year sentence,
one hundred percent of which must be served in confinement. Specifically, he argues that
the trial court erred in determining the length of each individual sentence and in ordering
consecutive sentencing.
Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers
the following factors: (1) the evidence, if any, received at the trial and the sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to
sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved;
(5) evidence and information offered by the parties on enhancement and mitigating factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant in
his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.
§§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The
burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn. Code
Ann. § 40-35-401, Sentencing Comm’n Cmts. Moreover, if the record reveals that the trial
court adequately considered sentencing principles and all relevant facts and circumstances,
this court will accord the trial court’s determinations a presumption of correctness. Id. at (d);
Ashby, 823 S.W.2d at 169.
1. Length of Sentence
In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of
punishment is the sentence that should be imposed, because the
general assembly set the minimum length of sentence for each
felony class to reflect the relative seriousness of each criminal
offense in the felony classifications; and
(2) The sentence length within the range should be
adjusted, as appropriate, by the presence or absence of
mitigating and enhancement factors set out in §§ 40-35-113 and
40-35-114.
Tenn. Code Ann. § 40-35-210(c).
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Although the trial court should also consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; State
v. Carter, 254 S.W.3d 335, 343-44 (Tenn. 2008). We note that “a trial court’s weighing of
various mitigating and enhancement factors [is] left to the trial court’s sound discretion.”
Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select any sentence
within the applicable range so long as the length of the sentence is ‘consistent with the
purposes and principles of [the Sentencing Act].’” Id. at 343.
[A]ppellate courts are therefore left with a narrower set of
circumstances in which they might find that a trial court has
abused its discretion in setting the length of a defendant’s
sentence . . . [and are] bound by a trial court’s decision as to the
length of the sentence imposed so long as it is imposed in a
manner consistent with the purposes and principles set out in
sections -102 and -103 of the Sentencing Act.
Id. at 345-46.
In the instant case, the appellant was convicted of three counts of rape of a child, a
Class A felony, see Tenn. Code Ann. § 39-13-522(b); seven counts of rape by fraud, a Class
B felony, see Tenn. Code Ann. § 39-13-503(b); seven counts of statutory rape by an authority
figure, a Class C felony, see Tenn. Code Ann. § 39-13-532(b); and seven counts of assault,
a Class A misdemeanor; see Tenn. Code Ann. § 39-13-101(b)(1). Generally, a standard,
Range I offender is subject to a sentence of fifteen to twenty-five years for a Class A felony,
eight to twelve years for a Class B felony, and three to six years for a Class C felony. See
Tenn. Code Ann. § 40-35-112(a)(1)-(3). The maximum sentence that can be imposed for a
Class A misdemeanor conviction is eleven months, twenty-nine days. See Tenn. Code Ann.
§ 40-35-111(e)(1).
At the sentencing hearing, the trial court found the following enhancement factors
applicable:
(1) The [appellant] has a previous history of criminal
convictions or criminal behavior in addition to those necessary
to establish the appropriate range;
(3) The offense involved more than one (1) victim;
(4) A victim of the offense was particularly vulnerable because
of age or physical or mental disability; and
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(7) The offense involved a victim and was committed to gratify
the [appellant’s] desire for pleasure or excitement.
Tenn. Code Ann. § 40-35-114(1), (3), (4), (7).
In applying the foregoing enhancement factors, the trial court imposed a sentence of
twenty years for each rape of a child conviction, ten years for each rape by fraud conviction,
three years for each statutory rape by an authority figure conviction, and eleven months and
twenty-nine days for each assault conviction. The court merged the assault and statutory rape
convictions into the rape by fraud convictions, all of which related to K.C.
The appellant contends, and the State concedes, that the trial court misapplied
enhancement factors (3) and (4). Regarding factor (3), that the offense involved more than
one victim, our supreme court has held that a trial court cannot apply that factor where the
charge is necessarily limited to a specific, named victim. See State v. Imfeld, 70 S.W.3d 698,
705-06 (Tenn. 2002). Because there was a specific, named victim in each offense for which
the appellant was convicted, we agree that the trial court improperly applied enhancement
factor (3).
Regarding factor (4), the particularly vulnerability of a victim, we note that the trial
court may apply this factor in child sexual abuse cases; however, the factor “relates more to
the natural physical and mental limitations of the victim than merely to the victim’s age.”
State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). In other words, “[t]he factor can be used
in [a child sexual abuse] case if the circumstances show that the victim, because of his [or
her] age or physical or mental condition, was in fact ‘particularly vulnerable,’ i.e., incapable
of resisting, summoning help, or testifying against the perpetrator.” Id. In the instant case,
the victims were fourteen and eleven years old at the time of the offenses. Nevertheless,
there was no indication that they were incapable of resisting, summoning help, or testifying
against the appellant. Therefore, the trial court should not have applied this enhancement
factor.
Regardless, the trial court properly applied two enhancement factors. First, the trial
court applied enhancement factor (1) based upon the appellant’s testimony at the sentencing
hearing that he had used marijuana for approximately twenty years, demonstrating a history
of criminal behavior.
Further, our supreme court has explained that when dealing with sexual crimes and
the application of enhancement factor (7), concerning the appellant’s desire for sexual
arousal or gratification, the trial court must look to the appellant’s “motive for committing
the offense.” State v. Arnett, 49 S.W.3d 250, 261 (Tenn. 2001) (emphasis in original). The
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court cautioned that “evidence of ejaculation, by itself, does not prove that the [appellant’s]
motive was to gratify a desire for pleasure. Accordingly, proper application of factor (7)
requires the State to provide additional objective evidence of the [appellant’s] motivation to
seek pleasure or excitement through sexual assault.” Id. at 262 (citing State v. Kissinger, 922
S.W.2d 482, 490 (Tenn. 1996)). To this end, the court explained that “factor (7) may be
applied with evidence including, but not limited to, sexually explicit remarks and overt
sexual displays made by the defendant, such as fondling or kissing a victim or otherwise
behaving in a sexual manner, or remarks or behavior demonstrating the [appellant’s]
enjoyment” of the crime. Id.
K.C. testified that the appellant made her kiss him and that he fondled her breasts
when he molested her. K.C. also stated that each time, the appellant claimed he needed to
“finish,” meaning have an orgasm. On one occasion, when K.C. was unable to “help” the
appellant “finish,” he asked A.C. to assist him. A.C. testified that the appellant asked her to
have sex because he was “horny.” Additionally, both victims testified that the appellant
showed them pornographic videos. Therefore, the trial court did not err in applying
enhancement factor (7). Although the trial court misapplied enhancement factors (3) and (4),
we conclude that the appellant’s twenty-year sentences for rape of a child and ten-year
sentences for rape by fraud were proper in this case.
2. Consecutive Sentencing
Generally, “[w]hether sentences are to be served concurrently or consecutively is a
matter addressed to the sound discretion of the trial court.” State v. Adams, 973 S.W.2d 224,
230-31 (Tenn. Crim. App. 1997). Tennessee Code Annotated section 40-35-115(b) contains
the discretionary criteria for imposing consecutive sentencing. See also State v. Wilkerson,
905 S.W.2d 933, 936 (Tenn. 1995).
In the instant case, the trial court ordered that the appellant’s ten-year sentences for
rape by fraud be served consecutively to each other. The court further ordered that the
twenty-year sentences for rape of a child be served consecutively to each other and
consecutively to the rape by fraud sentences, for a total effective sentence of 130 years. The
trial court imposed consecutive sentencing upon finding that the appellant was
convicted of two (2) or more statutory offenses involving sexual
abuse of a minor with consideration of the aggravating
circumstances arising from the relationship between the
[appellant] and victim or victims, the time span of [appellant’s]
undetected sexual activity, the nature and scope of the sexual
acts and the extent of the residual, physical and mental damage
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to the victim or victims.
Tenn. Code Ann. § 40-35-115(b)(5).
Rape of a child is an offense involving the sexual abuse of a minor. Further, the
appellant’s convictions for rape by fraud involved a fourteen-year-old victim. The record
reveals that the appellant actively sought to gain the victims’ trust which he then exploited
by convincing the victims to have sex with him. The appellant engaged in this course of
action for at least four months. K.C. testified that her grades started dropping because of the
abuse. Both K.C. and A.C. testified that they did not tell their parents about the abuse
because they feared their parents would no longer want them. In a victim impact statement,
the victims’ mother stated that both victims experienced nightmares and received counseling.
Therefore, the trial court did not err by imposing consecutive sentencing.
III. Conclusion
We conclude that the trial court did not err in finding that the pornographic videos
were admissible. We further conclude that the evidence was sufficient to sustain the
appellant’s convictions. Although the trial court erred in denying the appellant’s severance
motion, the error was harmless. Finally, the appellant’s 130-year sentence was appropriate.
Accordingly, the judgments of the trial court are affirmed.
_________________________________
NORMA McGEE OGLE, JUDGE
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